Terramin Exploration Pty Ltd v State of SA

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
TERRAMIN EXPLORATION PTY LTD & ANOR v STATE OF SA
[2025] SASC 3
Judgment of the Honourable Chief Justice Kourakis
ENERGY AND RESOURCES - MINERALS - MINING FOR MINERALS - TITLES: RIGHTS, PERMITS, LICENCES AND LEASES ETC
ADMINISTRATIVE LAW - JUDICIAL REVIEW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
The applicant makes an application for judicial review against three decisions made in relation to the applicant’s proposed gold mining operation, commonly referred to as the Bird in Hand gold mine (‘the BIH gold mine’).
The first two decisions, made by the Minister for Energy and Mining on 8 February 2023, refused to grant the applicant a mining lease and miscellaneous purposes licence (‘MP licence’). The third decision was made by the Governor of South Australia on 27 April 2023, reserving the land from the operation of the Mining Act 1971 (SA) (‘the Mining Act’).
The applicant challenges the Minister’s decisions on the following grounds:
1.That the Minister misapprehended the nature and source of the statutory power to grant the mining lease and MP licence.
2.The Minister wrongly apprehended he was not authorised to grant the mining lease or MP licence, as any environmental risks posed by the BIH gold mine could be mitigated and controlled.
3.Insofar as the Minister was satisfied the appropriate environmental outcomes would be achieved:
3.1 The Minister was precluded from exercising the power to refuse the mining lease and MP licence on the ground there was any residual risk those outcomes might not be achieved and;
3.2 Environmental outcomes include adverse effects on other land uses in the locality.
4.The Minister’s refusal to grant the mining lease and MP licence were unreasonable as they were inconsistent with the assessment report prepared pursuant to s56ZA of the Mining Act.
5.The Minister was bound by the assessment report, or alternatively, was precluded from refusing the applications for reasons not included in the report.
6.The Minister wrongly took into account irrelevant considerations regarding potential investments to be made by adjacent businesses in the locality should the applications be refused.
7.The Minister failed to have regard to relevant considerations, including that the risks identified for refusing the applications were satisfactorily addressed by the applicant, and the significant economic benefits the BIH gold mine would bring to the State.

The applicant challenges the Governor’s decision on the following grounds:
1.The 14 days provided for the making of submissions was insufficient.
2.The Governor failed to consider the risks posed by the proposed mining operation were negligible and wrongly failed to consider the benefits of the BIH gold mine.
3.The Government came to the conclusion without any evidence that the reservation of land under s 8(1)(c) of the Mining Act would ensure full control by Government over future applications for mineral tenements in the area.
4.The decision was unreasonable.
5.The decision was motivated by political considerations.
6.The decision was pre-determined.

Held:
1. The application for judicial review is dismissed.
Mining Act 1971 (SA) ss 6(4)-(6), 8(1)(c), 20, 21, 24, 25, 34, 35, 36, 37, 43, 47, 48, 49, 50, 56ZA, 56Q, 62AA, 70, 70A, 70B), 70C, 70DA, s 70DC, 70E, 70FB, 73H, Pt 8 Div 7, Pt 10A, referred to.

TERRAMIN EXPLORATION PTY LTD & ANOR v STATE OF SA
[2025] SASC 3
Civil: Judicial review

KOURAKIS CJ: This is an application to quash three decisions made in relation to a gold mining operation at Woodside and Strathalbyn in the Adelaide Hills proposed by the applicants. I will refer to the applicants jointly as Terramin. The proposed mine is commonly referred to as the Bird in Hand gold mine (“the BIH gold mine”) The first two decisions were made by the Minister for Energy and Mining on 8 February 2023, refusing to grant Terramin a mining lease and a miscellaneous purposes licence (“MP licence”) in respect of the BIH gold mine. The third is a decision of the Governor made on 27 April 2023 reserving the land which was to be mined from the operation of the Mining Act 1971 (SA) (“the Mining Act”).
Terramin’s challenge to the validity of the Minister’s decision to reject the applications for the mining lease and the MP licence, rests on multiple grounds which I would summarise and classify as follows:
1.The Minister misapprehended the nature and source of the statutory power to grant the mining lease and the MP licence.
2.The Minister wrongly apprehended that he was not authorised to grant the mining lease or the MP licence, when in fact the exploitation of the BIH gold mine posed no risk to the environment because any risks could be appropriately managed, controlled and mitigated.
3.Insofar as the Minister was satisfied that the appropriate environmental outcomes would be achieved:
·the Minister was precluded from exercising the power to refuse the mining lease and the MP licence on the ground that there was any residual risk that those outcomes might not be achieved;
·environmental outcomes include the adverse effects on other land uses in the locality of the BIH gold mine.
4.Insofar as the Minister was not satisfied that appropriate environmental outcomes would be achieved, his refusal to grant the mining lease and the MP licence was unreasonable in that it was inconsistent with the assessment report prepared pursuant to s 56ZA of the Mining Act.
5.The Minister was bound by the report prepared pursuant to s 56ZA of the Mining Act or, alternatively, the Minister was precluded from refusing to grant the mining lease and the MP licence for any reason which was not included in the assessment report.
6.The Minister wrongly took into account the irrelevant consideration that the adjacent wineries would make significant investments in their businesses if the licence were refused.
7.The Minister failed to have regard to the relevant consideration that:
·The risks identified by the Minister for refusing the applications for a mining lease and licence have been satisfactorily addressed by Terramin.
·The BIH gold mine would bring significant economic benefits to the State.
·The economic benefits to the State from the BIH gold mine would be significantly greater than those identified in the assessment report given increases in the gold price and favourable exchange rates applicable at the time the discretion-based decision was made.
Grounds 1 and 2 must be dismissed. The Minister’s mistaken reference to s 37 of the Mining Act in his memorandum was a slip which had no material effect on the exercise of the power to grant the mining lease conferred by s 34 of the Mining Act. The former imposes preconditions on the favourable exercise of the power conferred by the latter, but the discretion may nonetheless be exercised adversely to the applicant even if those preconditions are satisfied.
The Minister was entitled to refuse the application for the mining lease on the ground that there was a residual risk that environmental outcomes might not be achieved, but, in any event, environmental outcomes do not include the adverse commercial effects on other land uses. Ground 3 must be dismissed. Ground 4, too, must be dismissed because Terramin has not established that the Minister proceeded on a finding that environmental outcomes could not be achieved, and because, in any event, it is not unreasonable for the Minister to take a different view to that expressed in the assessment report.
The adverse effects on investments by other businesses in the locality is a relevant consideration and Terramin has failed to establish that the Minister’s finding in that respect was erroneous. Ground 6 must therefore be dismissed. The Minister took into account the relevant considerations listed in ground 7 and that ground, too, must be dismissed.
Terramin also relied on a number of contentions, the effect of which challenge the implied factual findings on which the Minister’s reasons were premised. Those contentions can be dismissed summarily. There was evidence on which the Minister could reasonably be satisfied that there were material risks to the viticulture and tourism industries in the locality of the BIH gold mine such that economic considerations favoured the refusal of the application. Moreover, it is important to appreciate that the evidentiary material on which the Minister was entitled to rely was not limited by the rules of evidence which bind most courts.
Terramin also contended that it held a reasonable expectation that its applications would be evaluated scientifically, but that the Minister failed to do so. The standard for review of administrative decision‑making is that set by the general law, supplemented by any applicable statutory provisions. Those standards cannot be unilaterally supplanted by the expectations of persons who may be adversely affected. The standards which administrative decision makers must follow are both procedural and substantive. As to the former, Terramin was accorded procedural fairness. As to the latter, I have foreshadowed that the refusals to grant the mining lease and the MP licence were not unreasonable and the Minister had regard to, and only to, relevant considerations. There is no warrant to superimpose a jurisdictional requirement that the Minister conduct an evidence-based scientific evaluation of Terramin’s application. It is not obvious what those terms might mean in the context of judicial review of an administrative decision other than to impermissibly change the review from one which ensures the decision is within power to one which examines the merits of its exercise. That contention must also be dismissed.
Terramin impugns the Governor’s decision to reserve the land which was to be mined on grounds which I summarise as follows:
1.the 14 days allowed for the making of submissions was insufficient;
2.the Governor failed to take into account that the risks of the proposed mining operation were negligible and wrongly failed to take into account the benefits of the mine;
3.the Governor came to the conclusion, without any evidence, that the reservation of land under s 8(1)(c) of the Mining Act would or could “ensure full control by Government over the ability for anyone to take future application for mineral tenements over the small area”;
4.The decision was unreasonable;
5.the decision was motivated by political considerations; and
6.the decision to reserve the land was predetermined.
A period of 14 days was sufficient having regard to the material Terramin submitted in support of the application for a mining lease. Moreover, Terramin proffered no explanation for not meeting that deadline. Grounds 2 and 6 are not established on the evidence. A decision to reserve land pursuant to s 8(1)(c) of the Mining Act does, for all practical purposes, preclude future applications for a mining lease over that land. Ground 3 must be dismissed. The reservation of land pursuant to s 8(1)(c) o0f the Mining Act is an exercise of high government policy. It is difficult to envision any case in which a court could determine that the inscrutable decision of the Governor and her Ministers of State based, as it will usually be, on confidential ministerial correspondence, acted unreasonably in doing so. This is not such a case. Ground 4 must be dismissed. In the context of a decision made by the Governor in accordance with the constitutional principles of Westminster government, ground 5 is meaningless.
I elaborate on my reasons below.
The decisions
On 8 February 2023, the Minister subscribed to memoranda addressed to the Mining Registrar recording his decisions to refuse the applications for a mining lease and MP licence pursuant to s 37 and s 50 of the Mining Act respectively. The memoranda were prepared for the Minister’s consideration by officers of the Department for Energy and Mining (“the Department”). As we shall see, those statutory provisions impose preconditions on the powers to grant a mining lease and an MP licence which are located in s 34 and s 47 respectively. Attached to the memoranda were the following reasons:[1]
While the assessment considered technical matters in detail, other relevant considerations include broader State interests including potential socio-economic and amenity impacts and the level of uncertainty on whether the proposed approaches will be effective to the degree expected by existing industries, the community, or tourists.
The area of the proposed mine is home to a world-class viticulture industry, producing some of Australia’s best-loved wines.
Tourism to the region is a critical contributor to the local economy and, on balance, there remains a possibility this proposed short-term mine may affect the established and significant long-term agricultural and tourism industries of the Woodside area immediately adjacent the project areas.
As such, I am not willing to risk these established local industries against the opportunity this short-term mine may provide and have decided it is in the State’s interest to decline the Mining Lease and Miscellaneous Purposes Licence applications by Terramin for its Bird in Hand Gold Project.
[1] FDN 31, ‘Signed Decision Notification forms’, p 1977.
The assessment mentioned in the Minister’s reasons is a report prepared by the Department for the Minister in August 2022 (“the assessment report”). A version of the assessment report was made public in February 2023. The assessment report dealt in detail with the technical assessment of the likely environmental impacts of the BIH gold mine and the amelioration strategies proposed by Terramin. The State accepts that the assessment report was prepared to discharge the Minister’s statutory obligation, imposed by s 56ZA of the Mining Act, to prepare an assessment report in respect of Terramin’s applications for mineral tenements.
It is apparent from the Minister’s reasons that he had regard to:
·the technical matters canvassed in the assessment report;
·broader State interests;
·the risk that notwithstanding Terramin’s proposed ameliorative measures there may still be adverse impacts on the amenity of the locality;
·what the Minister considered to be the relatively short-term benefits of the BIH gold mine;
·the adverse socio-economic impacts of the BIH gold mine generally and what the Minister’s considered to be the long-term world-class viticulture, and associated tourist industries, in the locality of the BIH gold mine; and
·uncertainty over whether Terramin’s proposed ameliorative measures would be effective in meeting community, including industry and tourist, expectations.
The legislation
The Mining Act was enacted to regulate and control mining operations in South Australia. It empowers the Executive government to grant mineral tenements which are defined to include a claim, lease or licence under the Mining Act. All persons have a general right to prospect pursuant to s 20 of the Mining Act, but that right does not include a right to conduct exploration for minerals or operations ancillary thereto.
The Mining Act prescribes the steps which must be taken to establish a mineral claim (s 21) and provides for the registration of claims (s 24). A claim confers on its owner an exclusive right to prospect for minerals, to carry out other exploratory operations on it, and to apply for a mining lease (s 25).
Part 5 of the Act makes provision for the determination of applications for exploration licenses.
Part 6 provides for the grant of mining leases. A mining lease confers on the holder an exclusive right to carry out mining operations (s 35). Section 36(1) of the Mining Act provides for an application for mining leases to be made in the prescribed form, and s 36(2) allows the Minister to require additional information. The prescribed form requires the applicant to specify the authorised operations that are proposed and their environmental impacts, and to particularise the expected environmental outcomes.
Section 34 confers on the Minister a power to grant a mining lease in these terms:
34—Preliminary
(1)Subject to this Act, the Minister may grant a mining lease to the holder, or to a related body corporate of the holder, of—
(a)     a registered mineral claim, in respect of the whole or part of land comprised in the claim; or
(b)     an exploration licence, in respect of the whole or part of land comprised in the licence; or
(c)     a retention lease, in respect of the whole or part of land comprised in the lease.
(2)If a registered mineral claim or exploration licence relates to a particular stratum, the mining lease must, if granted, relate to the same stratum.
(3)A mining lease must not be granted in respect of land within a subsurface stratum except on the authority of a resolution passed by both Houses of Parliament.
(4)A mining lease is not required to be registered under the Real Property Act 1886.
The word “may” empowers the Minister to either approve an application made pursuant to s 36 of the Mining Act, and thereby grant a mining lease or, alternatively, to reject the application and to decline to grant a mining lease. It is a necessary implication of ss 34 and 36 of the Mining Act, that the Minister is bound to consider an application made pursuant to the latter provision. Accordingly, the power in s 34 to grant a lease can properly be characterised as a power to refuse or to grant a mining lease.
The discretion conferred by s 34 of the Mining Act is wide. It is not expressly constrained by the prescription of relevant considerations, or by the proscription of irrelevant considerations. Nonetheless, having regard to the broad economic and environmental implications of the mining of minerals for the government, and people, of the State, and the widely expressed discretion to grant or to refuse a mining lease, the important public policy considerations which the Minister may, but is not bound to, consider include:
·the desirability of exploiting the mineral resources of the State in order to generate employment and advance the State’s economic development;
·the sustainability of the proposed mining operation;
·whether the proposed mining operation optimises the value of the resource;
·any adverse environmental consequences of the mining operation; and
·any adverse impacts of the proposed mining operations on the amenity or value of residential or commercial uses of the affected land.
The second and third of those considerations were not controversial on Terramin’s application and, not surprisingly, the Minister’s reasons do not refer to them.
I observe that the penultimate consideration may often be related to the last of the considerations but that the last consideration encompasses more than the effects on the natural environment. I would also emphasise that the considerations are prognostic and the likelihood of the prospective benefits and the degree and nature of the risks may vary greatly. The Parliament has entrusted the relevant Minister, who is responsible to it, with the exercise of the power conferred by s 34 of the Mining Act because the evaluation of those considerations involve questions of high public policy.

Section 37 of the Mining Act provides:
37—Approval of application and registration
(1)The Minister—
(a) must not grant a mining lease unless the Minister is satisfied—
(i)that there is a reasonable prospect that the land in respect of which the lease is sought could be effectively and efficiently mined; and
(ii)that appropriate environmental outcomes will be able to be achieved; and
(b) must not grant a mining lease if the Minister considers that sufficient investigations have not been carried out in order to enable the Minister to determine the terms and conditions on which the lease could be granted.
(2)However, if the Minister cannot grant a mining lease by virtue of the operation of subsection (1), the Minister may instead, with the concurrence of the applicant for the mining lease (and on the basis of such further application by the applicant as the Minister thinks fit), grant a retention lease under Part 7.
(3)If the Minister decides to grant a mining lease, the lease will be taken to be granted under this Act when the lease is registered on the mining register (and the term of the lease will be taken to commence from the date of registration).
Section 37, on its terms assumes, the existence of the power in s 34 of the Mining Act; it does not confer an additional, or alternative, power to grant or refuse a mining lease. Rather it commands the Minister not to approve an application for a mining lease, and grant the lease pursuant to the power conferred by s 34 of the Mining Act, unless satisfied that there is a reasonable prospect that the land can be efficiently mined (“the efficiently mined threshold”), and that the appropriate environmental outcomes will be able to be achieved (“the environmental outcomes threshold”).
Put in another way, s 37(1)(a) limits the discretionary power conferred by s 34 of the Mining Act such that the Minister may only grant a mining lease if the Minister is satisfied that the thresholds have been met. The submissions of Terramin at times proceeded on a construction of the Mining Act which located a power to refuse an application for a mining lease in s 37 although, as I understood its final position, accepted that the power both to grant, or to refuse, a mining lease is located in s 34 of the Mining Act.
Once it is accepted that s 34 of the Mining Act is the single source of statutory power to grant or refuse a mining lease, the reference in the Minister’s memorandum to the Mining Registrar to s 37 of the Mining Act is merely a slip. It cannot affect the validity of his decision, which has but a single source of power which attracts those considerations to which I have referred in [20] above. The Minister’s reference to s 37 of the Mining Act shows that the Minister was aware of the statutory preconditions to the grant of the mining lease. A valid exercise of a power is not dependent on the correct identification of its source other than insofar as any misapprehension may lead to a failure to exercise it only on relevant considerations. However, as we have seen, the Minister had regard only to relevant considerations. Grounds 1 and 2 must therefore be rejected.
It will be observed that s 37(1)(a)(i), the efficiently mined threshold, demands only that the Minister is satisfied that there is a reasonable prospect that the land can be effectively and efficiently mined. That low threshold of satisfaction recognises that in a market economy, the evaluation of the commercial viability of the mine can largely be left to the applicant who has chosen to commit capital to it. An applicant is unlikely to seek a mining lease if it were not satisfied that the mine could be efficiently, and profitability, mined. It is not surprising, therefore, that the second and third of the relevant considerations identified in [20] above were not controversial on Terramin’s application.
By way of contrast to the efficiently mined threshold enacted by s 37(1)(a)(i), the threshold for the Minister’s satisfaction on the question of the environmental outcomes threshold imposed by s 37(1)(a)(ii) is higher. The Minister must be satisfied, not merely that there are reasonable prospects that appropriate environmental outcomes will be achieved, but must positively be satisfied that they will be achieved. Moreover, it is to be observed that it is only if the Minister is so satisfied that the mining lease may be granted. It is not sufficient that the Minister is unable to decide whether or not the appropriate environmental outcomes will be achieved. Where the Minister is left in that state of uncertainty, for example, as contemplated by s 37(1)(b) because there has been insufficient investigation, the mining lease must not be granted. If not satisfied that a mining lease should be granted, the Minister may, nonetheless, pursuant to s 37(2) of the Mining Act grant a retention lease. Section 43 provides that a retention lease may be granted, in cases other than those contemplated by s 37(2) of the Mining Act, if the applicant needs to carry out authorised operations in order to obtain information to support the application for the mining lease or where, for economic or other reasons, the applicant for the lease is justified in not proceeding immediately to mine the land under a mining lease. Under s 43(2), a retention lease confers an exclusive right on the tenement holder to prospect for minerals and to conduct such authorised operations as might be approved on the retention lease. A retention leaseholder also takes an exclusive right to apply for a mining lease.
However, it does not follow that the Minister must grant a mining lease if he or she is satisfied that appropriate environmental outcomes will be achieved. For example, if the Minister recognises that there is, nonetheless, a residual risk of seriously adverse environmental outcomes, or adverse socio-economic impacts, it is difficult to see why the Minister could not, in the exercise of the power to grant or refuse a mining lease conferred by s 34 of the Mining Act, decline to grant a mining lease.
Terramin contends that the Minister is bound to exercise the discretion conferred by s 34, favourably to an applicant, if satisfied of the two pre-conditions stipulated by s 37(1)(a) of the Mining Act. Alternatively, Terramin contends that if the Minister is satisfied appropriate environmental outcomes will be achieved, the Minister cannot have regard to any residual risk that, despite his satisfaction, the environmental outcomes might not be achieved. I reject those contentions. It would be a curious result, which does not serve any conceivable public interest, if the Minister were impotent to protect the community from a catastrophic environmental consequence even though the risk of that catastrophe is relatively small. It can be accepted that such cases are likely to be rare but if, and when, they do arise it would be irrational to exclude the residual risk from the considerations to which the Minister may have regard for the purposes of s 34 of the Mining Act. I would not attribute that intention to the Parliament and imply a term to give effect to that supposed intention. In respect of the efficiently mined threshold, it could hardly be doubted that the Minister may decline to grant a mining lease even if satisfied that the mine can be effectively and efficiently mined, if there is a risk of substantial economic dislocation and disruption to nearby industries. There is no reason to, by implication, preclude an analogous power in respect of the environmental outcomes threshold.
Terramin’s contention treats the necessary pre-conditions to a favourable grant imposed by s 37 of the Mining Act as both necessary and sufficient conditions. There is no textual or contextual basis for the latter. Section 37 of the Mining Act, on its terms, is no more than a bar to the grant of the licence unless the Minister is satisfied that appropriate environmental outcomes will be achieved. Put another way, it does no more than require that the Minister be so satisfied before a mining lease can be granted. It does not create a two-stage process in the exercise of the discretion. There is no sound basis for an implication that any residual environmental risk must be ignored. Section 37 of the Mining Act does not separate out from the single power conferred by s 34 two different sets of considerations; one being appropriate environmental outcomes and the other being all remaining considerations. There is no warrant for a construction which removes what would otherwise be a relevant consideration, a residual risk of catastrophic environmental consequences, from the Minister’s consideration of the power conferred by s 34 of the Mining Act.
I accept that the effects of the operation of the BIH gold mine on the amenity of the locality can be described as environmental outcomes. However, the Minister was nonetheless entitled to consider the risk to the amenity of the locality because of the “uncertainty” that the proposed ameliorative measures would meet community expectations.
In any event, as we have seen, the Minister’s reasons show that, in refusing to grant Terramin a mining lease, he had regard to the adverse business effects of the operation of the BIH gold mine on other land uses in its locality. Terramin contends that those considerations are “environmental outcomes” within the meaning of that term in s 36 and s 37 of the Mining Act. On a proper construction of the term, Terramin’s contention must be rejected.
“Environmental” is defined by ss 6(4) to (6) as follows:
(4)Subject to subsections (5) and (6), environment includes—
(a)     land, air, water (including both surface and underground water and sea water), organisms, ecosystems, native fauna and other features or elements of the natural environment; and
(b)     buildings, structures and other forms of infrastructure, and cultural artefacts; and
(c)     existing or permissible land use; and
(d)     public health, safety or amenity; and
(e)     the geological heritage values of an area; and
(f)     the aesthetic or cultural values of an area.
(5)In relation to a particular mineral tenement, paragraphs (c) and (e) of subsection (4) apply according to the circumstances existing at the time that the tenement is (or was) granted.
(6)Subsection (4) does not apply to or in relation to Parts 9B or 11B.
Terramin contends that paragraphs (c) and (d) of ss (4) should be given a wide meaning which includes the commercial and economic effects on other businesses in the locality of a proposed mine. On its face, that is a somewhat curious contention for an applicant for a mining tenement to take. It imposes a high threshold for the grant of a mining tenement to require the Minister to be satisfied that the effects of the mining operation on businesses making use of other land in the locality will be acceptable. The explanation, as we shall see, lies in Terramin’s forensic strategy, which in the particular circumstances of this case is to preclude the Minister from relying on the risks to those businesses because of the favourable conclusions in that respect reached by the authors of the report prepared pursuant to s 56ZA of the Mining Act.
The Solicitor-General, appearing for the Minister, contended that on a proper construction of the Mining Act as a whole, paras (c) and (d) do not extend to the consequence of the proposed mining operations on the commercial exploitation of other land in the locality of the mine. For the reasons which follow, I uphold the Solicitor-General’s submissions.
Part 10A of the Mining Act makes provision for programs of environmental protection and rehabilitation. The object of the Part is to ensure that holders of mineral tenements have in force a program for protection of the environment and that adverse and environmental impacts are properly managed.[2] Section 70B of the Mining Act prohibits a person from carrying out authorised operations unless a program that complies with the requirement of that Part is in force. Section 70B requires the program to set out “the environmental outcomes that are expected to occur as a result of the authorised operation”. The proposed program must be submitted to the Minister.[3] The Minister may require additional information.[4] Finally, the Minister may approve the program, require its amendment or reject it.[5]
[2]    Mining Act 1971 (SA) s 70A.
[3]    Mining Act 1971 (SA) s 70B(4) and (4a).
[4]    Mining Act 1971 (SA) s 70B(4b).
[5]    Mining Act 1971 (SA) s 70B(5).
Section 70C provides for the review of approved programs.
Section 70D provides a regime for the notifications of authorised operations which constitute a controlled action pursuant to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) when the controlled action is to be assessed under a bilateral agreement.
Section 70DA of the Mining Act provides for environmental auditing and monitoring of action and operations.
A breach of a condition of a program is an offence.[6]
[6] Mining Act 1971 (SA) s 70DC(2).
Section 70E of the Mining Act empowers the Minister to give a direction to the holder of a mining tenement to comply with specified requirements which are calculated to ensure that the environmental outcomes are achieved or other environmental damage is prevented or minimised.
Section 70FB of the Mining Act provides that, if an authorised officer holds the opinion that authorised operations have been carried out in a way which is reasonably likely to result in a breach of an environmental outcome under a program under Pt 10A, the authorised officer may, by written notice, issue an emergency direction to discontinue or not commence a specified activity.
By s 62AA, the Minister may require a tenement holder to pay an amount to be determined by the Minister into a mining rehabilitation fund. One of the considerations that the Minister must take into account pursuant to s 64AA(4) is the extent to which resources may be required to achieve appropriate environmental outcomes.
Section 73H of the Mining Act imposes a general duty to avoid undue environmental damage.
Part 8B, Div 7 of the Mining Act deals with proposed changes in authorised operations including, pursuant to s 56Q, changes in operations that may reduce the ability of the tenement holder to achieve a particular environmental outcome. An application to make that change must be approved by the Minister pursuant to s 56T of the Mining Act.
The regime for the regulatory control of authorised operations of a mining lease is founded on the attainment of the appropriate environmental outcomes which the Minister must be satisfied are capable of achievement before granting a mining lease. A regime of that kind cannot effectively be enforced unless:
(a)the outcome is measurable with a reasonable degree of certainty; and
(b)it is reasonably practicable for the tenement holder to achieve the outcome.
The provisions to which I have referred cannot be applied with any practical certainty to outcomes of the mining operations on the commercial activities of nearby businesses. In particular, the freedom of those enterprises to conduct their businesses as they see fit radically compromises the capacity of the holder of the mining lease to achieve the appropriate economic outcomes stipulated in an approved program.
The provisions of the Mining Act as a whole show that the word “environmental” in s 37 of the Mining Act bears the narrow meaning of the consequences on the natural and built environment. It does not extend to the commercial effects on other land uses which are caused only by that land’s proximity to the mine, and not from any impact by the mine on the nearby land itself. Ground 3 must be dismissed for this reason also.
Section 56ZA of the Mining Act – the Minister’s assessment
Section 56ZA of the Mining Act provides:
56ZA—Assessment reports
(1)The Minister must prepare a report (an assessment report) that sets out or includes the Minister's assessment in respect of the following:
(a)     an application for a mineral tenement under this Act;
(b)     without limiting paragraph (a), the ranking of applications for exploration licences in relation to an exploration release area;
(c)     an application for retention status under section 33B;
(d)     an application to amalgamate the areas of 2 or more mineral tenements under Division 6;
(e) an application for a change in operations under Division 7;
(f)     a decision to cancel, suspend or surrender a mineral tenement under Division 8;
(g)     a decision to exempt a tenement holder from an obligation to comply with a term or condition of a mineral tenement, or from a requirement of this Act;
(h)     any other matter prescribed by the regulations.
(2)The Minister must, in preparing a report under this section—
(a)     set out or include information about any submission that was made to the Minister in connection with a matter referred to in subsection (1); and
(b)     set out or include information or material provided by an applicant or tenement holder in connection with a matter referred to in subsection (1) (including any response provided to the Minister in relation to any submission made to the Minister); and
(c)     include any other information or material that the Minister thinks fit.
(3)The Minister may publish an assessment report in such manner, and to such extent, as the Minister thinks fit.
(4)No liability attaches to the Minister in connection with—
(a)     a decision by the Minister to include any particular matter, information or material in an assessment report; or
(b)     a decision by the Minister to publish an assessment report.
An assessment can mean the final opinion or judgment which is made after a process of assessment, but it may also mean the assessment process itself. To “assess” is to measure or evaluate.[7]
[7] Macquarie Dictionary (online at 16 January 2025) ‘assess’.
Section 56ZA of the Mining Act includes a requirement that the Minister, in preparing the assessment report, set out or include information or material provided by the applicant and any submission made to the Minister in connection thereto.
Section 56ZA of the Mining Act does not stipulate, as material which must be included in the report, the Minister’s decision and reasons to be included in the assessment report. This is for the obvious reason that the assessment report required by s 56ZA of the Mining Act necessarily precedes the making of a decision pursuant to s 34 of the Mining Act.
In that context it is clear that the subject matter of an assessment report is the process of assessment, including the material on which the final decision may be made.
The purpose of s 56ZA of the Mining Act is to be found in s 56ZA(3). The publication of the report of the assessment process is calculated to promote transparency and accountability in respect of decisions to grant or refuse mineral tenements. It is for that reason that the section obliges the Minister to prepare the report. By doing so, the Minister sets out the material and information against which his or her subsequent decision may be judged.
The obligation to prepare the report and the prescription of what must be covered suggests that the Minister must publish the report notwithstanding the use of the word “may”. The discretion conveyed by that term is limited to the manner and extent of the publication, for example, in respect of confidential material. Even if the Minister is not bound to publish it, it is a report that may be demanded by the Parliament, or which may be disclosed or discoverable on a judicial review of the Minister’s decision.
However, the authors of the assessment report in respect of the BIH gold mine proceeded on the mistaken premise that the report is the report of the “Government” and that its purpose is to make recommendations to the Minister. The introduction to the report records that:[8]
The South Australian government (referred to as government) considered the Application in the context of … South Australian legislation, including … the Environment Protection Act 1993 [and other legislation].
[8] Assessment report, p 12.

The assessment report does not on its face purport to be a report by the Minister. Nowhere in the assessment report does the Minister subscribe to its recommendations, or adopt it, as his findings. The assessment report purports to be a report of the Mineral Resources Division of the Department for Energy and Mining (“the Department”) and to provide the assessment and express the conclusions of the “Government” on the grant of a mining lease for Terramin’s gold mine:[9]
Government has assessed the potential impacts of proposed mining operations and authorised operations based on the information provided in Terramin’s application, all public submissions, the response document and other relevant evidence. …
The assessment concludes that with effective mitigation and management strategies implemented to control impacts, proposed operations can be undertaken in an environmentally responsible manner.
[9] Assessment report, p 163.
The recommendation in respect of the mining lease is in these terms:[10]
It is recommended that should the mining lease be granted, the lease be subject to a term of 16 years …
[10] Assessment report, p 163.
In respect of the MP Licence, the report states:[11]
Government assesses that the proposed activities associated with the MPL application apart from the changes to the processing plant and makeup of tailings are largely consistent with mining operations and closure obligations regulated through the approved PEPR.
[11] Assessment report, p 164.
The recommendation is made in these terms:[12]
The Government assessment recommends:
1.That in accordance with the requirements of the Mining Act 1971, the Minister for Energy and Mining (or delegate) considers, on the basis of the application, the results of public statutory consultation, the response document, the government assessment and any other relevant information, whether or not to grant a mining lease and a miscellaneous purposes licence to Terramin.
[12] Assessment report, p 165.
The report recommends that if a decision is made to grant the licences, that the terms, conditions and requirements in the appendices to the report be imposed.
The report recorded concerns submitted by sections of the public that the mine would adversely impact the clean, green reputation of the Adelaide Hills, that local business would be impacted by noise, dust and blasting and for that reason,[13] would reduce business at surrounding wineries and decrease tourism in the region. It also recorded submissions that property values would decrease and that the mine would put at risk the value in the long term of the food, wine and agricultural industry. Having considered those objections and Terramin’s proposed mitigation, the report concluded:[14]
Government considers Terramin’s approach to be reasonable. For cellar doors, potential impacts that could result in a negative visitor experience, resulting in reduced patronage, may be associated with impacts from traffic, air quality, noise, blast vibration and air overpressure and visual amenity. All these impacts can be quantified, controlled and measured against recognised standards.
[13] Assessment report, p 77.
[14] Assessment report, p 137.
In its consideration of an economic impact assessment prepared by research consultants, the report concluded:[15]
Government considers it reasonable for ERC to assume that proposed mitigation measures would be successful in managing potential impacts on existing land uses.
[15] Assessment report, p 139.
The conclusions of the assessment report on the effects on existing land uses were as follows:[16]
Government assesses that all environmental outcomes relevant to the continuation of existing land use can be achieved and that the mine would result in a net economic benefit to the state.
Government has assessed the following environmental values relevant to existing land use, … The assessment concluded proposed design and mitigation measures would result in achievement of all relevant outcomes, resulting in the opportunity for multiple land uses and adjacent industries to co-exist, if a lease was granted.
The independent economic impact assessment concluded that the risk to other economic activities would be low with the implementation of proposed controls. The independent peer review validated the modelling approach and assumptions made.
Economic modelling based on 2017 commodity prices shows that the proposed mine would contribute over $220 million to gross state product (GSP), which would be in addition to the GSP contributed by agriculture allowing both industries to jointly contribute to the state economy.
[16] Assessment report, p 141.
Section 56ZA of the Mining Act does not expressly provide for the making of recommendations. Nor is there a division between the “Minister” and the “Government” apparent on the face of the section. The assessment report prepared in respect of the BIH gold mine proceeds on a mistaken view of its purpose and on a mistaken view of the relationship between Ministers, their departments, and Executive Government itself. Departmental officers give advice to Ministers who make administrative decisions statutorily entrusted to them, almost always after obtaining Cabinet approval, or who bring matters to Cabinet for determination by Executive Council. The decisions of Ministers and Executive Council are the decisions, and manifest the opinions of, the Executive Government. The advice of departmental officers does not.
Even though s 56ZA of the Mining Act does not mandate the inclusion of modelling and opinions of the Department in the assessment report there is no reason why it should not be included. Departmental advice is, after all, an important part of the material on which a Minister will grant or refuse an application. It is a matter for the officers of the Department, subject to any Ministerial direction, for which the Minister is ultimately accountable to Parliament, to choose what additional material and/or advice to include in the report in addition to that mandated by s 56ZA of the Mining Act. However, the inclusion of conclusions as to the ultimate questions to be determined by the Minister, albeit in the form of recommendations, sits awkwardly in what is intended to be a report on the process of assessment.
Notwithstanding the mistaken premise on which the assessment report appears to have been prepared, the respondent accepted that the assessment report was prepared pursuant to s 56ZA of the Mining Act. That concession was appropriate both because the BIH gold mine assessment report appears to have been prepared in purported compliance with that section and because, the report does contain the material required by s 56ZA of the Mining Act. Nonetheless, the authors’ supererogation has become the foundation of Terramin’s contention either that the Minister was bound by the conclusions expressed in the report, or that it was irrational for the Minister to depart from them.
Terramin’s contentions must be dismissed primarily because the legal significance and effect of an assessment report is confined by boundaries of the statutory duty to prepare it. For the reasons given in [53]-[55] above, its purpose is not to pre-empt the exercise by the Minister of the discretion to grant or refuse an application. Insofar as the assessment report contains material which expresses the opinions of others, including those of officers of the Department, on some or all of the relevant considerations, it is not irrational, in itself, for the Minister to form a different opinion.
The Ministerial Briefing Note on Terramin’s applications correctly expressed the legal position. It recommended that the Minister note the completion of the assessment process and undertake the decision-making process by reviewing all of the relevant information and determining whether or not a mining lease and/or MP Licence should be granted to Terramin for the BIH gold mine.
The advice given to the Minister about possible environmental outcomes included the following:[17]
[17] FDN 32, ‘Decision Briefing dated 25 November 2022, p AB1815-AB1816.
Environmental Outcomes
·The management of environmental impacts have been considered in accordance with Sections 37(1)(a)(ii) and 49(1)(a)(ii) of the Mining Act and the proposed environmental outcomes are considered acceptable and/or achievable.
…
·Some impacts remain subjective and there remains some uncertainty on the ability to achieve the outcome due to a number of factors. The consideration of the potential for impacts to local existing businesses, in particular those with tourism related ‘positive visitor experiences’ as a key factor of their success has been considered in an ‘on balance’ manner considering net economic benefit not specific, impact scenarios.
…
·The achievement of environmental outcomes and their effectiveness in managing the negative visitor experience have been considered reasonable assumptions in the assessment but noting the reliance on compliance by Terramin with any regulatory requirements.
·Concerns raised during the statutory consultation included the perception of that establishing mining operations in this particular area may impact amenity and the ‘clean and green’ messaging associated with the wine and tourism industries. These more intangible matters, perhaps best defined as ‘state interest’, are beyond the technical assessment and have not been considered beyond the regulatory context of environmental outcomes.
(Emphasis added)
The Minister’s reasons show that he refused Terramin’s applications because of the uncertainty over the potential impacts on local existing businesses mentioned in the second dot point and the intangible matters of “State interest” mentioned in the last dot point.
The MP licence
As I have observed earlier, Terramin had also applied for an MP licence pursuant to s 48 of the Mining Act which authorises ancillary operations. Section 49 provides for an application to be made. Sections 47 and 50 of the Mining Act mirror s 34 and s 37 which apply to mining leases. Terramin’s application for an MP licence was refused. Plainly enough, on confirmation of the Minister’s refusal to grant a mining lease, there is no need to further consider the Minister’s refusal to provide a miscellaneous purposes licence.
The reservation of the land
Section 8 of the Mining Act provides:
8—Declaration of mineral land etc
(1)The Governor may, by proclamation—
(a)     declare any land in the State or any land under coastal waters on the landward side of the baseline to be mineral land; or
(ba)   divide mineral land into a surface stratum and one or more subsurface strata and fix the depth of the surface stratum and the depth of any subsurface stratum below which lies any further subsurface stratum resulting from the division; or
(c)     reserve from the operation of this Act, or any provisions of this Act, any land specified in the proclamation,
and the proclamation shall have effect according to its terms.
(2)The Governor may, by subsequent proclamation, vary or revoke any proclamation made pursuant to this section.
(3)The depth of strata into which mineral land is divided under this section may vary from place to place but, where the mineral land constitutes a precious stones field or part of a precious stones field, the depth of the surface stratum must be at least 50 metres.
(4)Land that is subject to a mineral tenement but is on the seaward side of the baseline because of a change in the position of the baseline after the tenement was granted will be taken to be mineral land until it ceases to be subject to the tenement and to all successive tenements (if any).
(5)This Act applies to and in relation to land referred to in subsection (4) to the exclusion of the Offshore Minerals Act 2000.
(6)A mineral tenement is a successive tenement in relation to another tenement if—
(a)     t applies to the same land or to part of the land covered by the other tenement; and
(b)     it takes effect immediately after the other tenement expires or, where there are two or more successive tenements, immediately after the tenement immediately preceding it expires; and
(c)     it is granted to the person who held the other tenement.
(7)A proclamation made before 29 June 1972 cannot limit or affect, and will be taken not to have limited or affected, the exercise of the power to make a proclamation under this section on or after that date, and to the extent to which there is an inconsistency between a proclamation made on or after that date and a proclamation made before that date (including, in relation to the earlier proclamation, a proclamation that reserved specific land from the operation of the repealed Act), the later proclamation will prevail.
A reservation of land by the Governor pursuant to s 8(1)(c) has the effect that persons cannot enjoy the rights or privileges conferred by those provisions of the Mining Act summarised in [15] and [17] above. Ground 5 of the challenge to the Governor’s decision to reserve land must therefore fail as a matter of law.
There may be many reasons; environmental, economic, or social for a government to exercise that power. In particular, it may do so to send a clear signal to prospective miners who might otherwise expend resources in the hope of gaining mineral tenement. Governments might also wish to assure anxious occupants of other land that no mineral tenements will be granted in their locality. Aside from unlawful or improper conduct, it is difficult to conceive a purpose or motive which falls outside the broad discretion conferred by s 8(1)(c).
The reservation may be characterised by some as the use of a metaphorical sledgehammer, but in matters of broad State interest, the reservation may be characterised by others as decisive and unambiguous action. True it is that the Executive Government of the State might have left the matter to individual applications which would be considered by the Minister on their merits. However, that approach would leave potential applicants in considerable uncertainty, and engender much anxiety in the occupants of nearby land. The most likely outcome of not reserving the land is the largely futile expenditure of private and public resources.
Terramin’s challenge to the reservation on the grounds that it was manifestly unreasonable must therefore be dismissed.
I turn next to Terramin’s contention that it was denied procedural fairness.
On 17 March 2023, a memorandum of the Department briefed the Minister on three options to strengthen government control over the BIH gold mine. The Minister chose the option of reserving the land over allowing future applications pursuant to s 36 and s 49 of the Mining Act and ordering the temporary exemption from mining over the land for a period of two years pursuant to s 9A(1) of the Mining Act.
On 17 March 2023, the Minister wrote to Mr Martin Janes, the Chief Officer of Terramin, informing him that he proposed to ask the Governor to reserve the land over which Terramin held its exploration licence by proclamation made under s 8 of the Mining Act. The letter gave Terramin an opportunity to make submissions before a decision was made by 5:30 pm on 31 March 2023.
On the same day, at the request of the Minister, the Department prepared a Cabinet submission supporting the proposed reservation. Contrary to Terramin’s contention, I do not infer from the Minister’s request that a decision had been made to reserve the land in the sense that affording Terramin an opportunity was window dressing. It could equally be considered prudent planning. The exercise of the power conferred by s 8(1)(c) of the Mining Act is essentially administrative and not quasi-judicial. The preparation of the Cabinet submission did not preclude the opportunity for Terramin to persuade the Executive Government against that course. Nor does it show that the decision to reserve the land was motivated by “political” considerations which were not properly relevant to the power. Even less is it capable of proving that the power was exercised for improper collateral political purposes. Grounds 5 and 6 must be dismissed.
On 27 March 2023, a senior officer of the Department briefed the Minister on the available options for the management of future applications which Terramin might make. The briefing described the reservation of land pursuant of s 8 of the Mining Act as the most effective of those options. The brief identified as a risk of that option, the interrelationship between the making of the declaration and any judicial review Terramin might bring in respect of the refusal of the mineral tenement.
On 31 March 2023, Mr Janes replied to the Minister’s letter of 17 March 2023. The letter complained of the decision to refuse Terramin’s application for a mining lease and informed the Minister that it had had severe adverse financial consequences for Terramin. It noted that the Department had supported the issue of the mining lease and concluded:[18]
Given the seriousness of this matter, I am still taking advice on the matters raised in your letter and consulting with my board and I will need more time before I can provide you with an informed response. Accordingly, I would appreciate an extension of time in which to respond of your 17 March letter to 30 April 2023.
[18] FDN 32, ‘Letter from Terramin to Minister’, p AB1790.
It is to be observed that the letter was sent on the very last day for making submissions. Terramin had no reason to expect that an extension would be granted. It chose to squander its limited opportunity to make submissions by seeking an extension of time in the minutes before midnight. Terramin has not put into evidence any explanation for the failure to take up procedural fairness which it was accorded. In particular, there is no evidence as to why it was not possible to meet the deadline having regard to the extensive submissions made in support of the grant of the mining lease.
On 15 April 2023, Terramin wrote to the Premier. The letter did not include any written submissions on the issue of reservation of the land, nor did it indicate that any might be forthcoming. Instead, Terramin’s letter complained of the refusal of the mining lease. It again referred to the substantial economic loss suffered by Terramin. It sought a joint meeting with the Minister on the decision to reject Terramin’s mining lease. It continued “we would also like to understand why your government is considering issuing a proclamation under s 8 of the Mining Act to ban any future mining at the Bird in Hand Gold Project site”.[19] It sought “open dialogue” directly with the Ministers. It did not claim that it was still in the process of preparing submissions.
[19] FDN 31, ‘Email from Peter Labropoulos to Benjamin Zammit and attachment’, p TB0097.
Having regard to the Minister’s consideration of Terramin’s submissions made in support of its application for the mining lease, and the matters put in Terramin’s letters of 31 March 2023 and 15 April 2023, Terramin has not established that the Governor failed to have regard to any relevant consideration. Ground 2 must be dismissed.
By proclamation dated 27 April 2023, the Governor reserved the area of the mining tenement from the operations Parts 4, 5, 6, 6A, 8, 8A of the Mining Act 1971 (SA). On 1 May 2023, the Premier issued a media release announcing the proclamation.
On 1 May 2023, the Minister replied to Terramin’s letter to the Premier. It recorded that the Premier had asked the Minister to respond because the matter fell within his portfolio responsibility. That is an orthodox course which accords with Ministerial responsibility. The Minister informed Mr Janes that he was open to having a meeting on a without prejudice basis. Mr Janes was informed that there was no opportunity to review the decision already made under the Mining Act but that he would welcome future discussions.

On 5 June 2023, Corrs Chambers Westgarth wrote to the Minister on behalf of Terramin regarding the proclamation reserving the Bird in Hand Gold Deposit from the operations of the Mining Act.
On 19 June 2023, the Minister responded to the solicitors as follows:
In respect of your comments regarding the Proclamation by Her Excellency the Honourable Francis Adamson AC Governor of South Australia, reserving certain land from the operation of the Act this is a decision for the Governor and there is no obligation to provide formal reasons for either her decision, or any decision to advise her to take this action, to any person. I note however that these are public statements and I do not intend to add to these statements at this time.
The recitation of the correspondence between the Minister and the Premier on the one hand and Terramin on the other, shows that Terramin was given an opportunity to make submissions but that it declined to take advantage of the procedural fairness it was accorded. Terramin’s challenge to the reservation on that ground must be dismissed.
Conclusion
Terramin’s application is dismissed.

[2025] SASC 3

20 January 2025