The Commonwealth v Hazeldell Ltd

[1918] HCA 75

25 CLR 552

THE COMMONWEALTH

DEFENDANTS,

HAZELDELL LIMITED

RESPONDENTS. PLAINTIFFS,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Land-Acquisition by Commonwealth-Compensation-Minerals-Reservation of all SYDNEY,

minerals in Crown grant-Right of public to mine for "all minerals " - Sub- Nov. 19, 20;

stance proclaimed a mineral-Limestone-Lands Acquisition Act 1906 (No. 13 of 1906), secs. 26, 37-Crown Lands Alienation Act 1861 (N.S.W.) (25 Vict. No. 1), secs. 13, 18-Crown Lands Act 1884 (N.S.W.) (48 Vict. No. 18), secs. 2, 4, 5, 6, 7-Mining Act 1906 (N.S.W.) (No. 49 of 1906), secs. 3, 45, 46.

25 CLR 553

Sec. 13 of the Crown Lands Alienation Act of 1861 (N.S.W.) provided that certain Crown lands should be open for conditional sale; and sec. 18 provided that, at the expiration of three years from the conditional sale and after payment of the purchase money and compliance with certain other con- ditions, a grant in fee simple should be issued to the purchaser with reserva- tion of any minerals which the land may contain." Sec. 2 of the Crown Lands Act of 1884 (N.S.W.) repealed certain Acts including the Crown Lands Aliena- tion Act of 1861, but enacted that the repeal should not " (iii.) Prejudice or affect any proceeding matter or thing lawfully done or commenced or con- tracted to be done under the authority of any enactment or regulation hereby repealed," and provided that "(b) All rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enactments shall subject to any express provisions of this Act in relation thereto remain un affected by such repeal." By sec. 4 the word "minerals," unless the context necessarily required a different meaning, was defined to mean and include coal, kerosene shale and any of certain named metals or any ore containing the same, " and any other substance which may from time to time be declared a mineral within the meaning of this Act by Proclamation of the Governor published in the Gazette." Sec. 5 provided that 'Crown lands shall not be sold leased dedicated reserved or dealt with except under and subject to the pro- visions of this Act," &. Sec. 6 provided that "The Governor on behalf of Her Majesty may grant dedicate reserve lease or make any other disposition of Crown lands but only for some estate interest or purpose authorized by this Act and subject in every case to its provisions." Sec. 7 provided that " All grants of land issued under the authority of this Act shall contain a reser- and exceptions as may by the Governor be deemed expedient in the public

Held, by Griffith C.J. and Rich J. (Gavan Duffy J. dissenting), that a Crown grant issued after the passing of the Crown Lands Act of 1884 pursuant to a purchase by conditional sale under sec. 13 of the Crown Lands Alienation Act of 1861 should, in an action between strangers to which the Crown in right of New South Wales was not a party, be construed in accordance with the provisions of the Act of 1884, and, therefore, that a reservation in such grant of all minerals which the land contains should be interpreted as a reservation

By sec. 3 of the Mining Act 1906 (N.S.W.), the word "minerals" is defined to mean, unless the context or subject matter otherwise indicates, certain specified substances and any other substance which may from time to time be declared a `mineral' within the meaning of this Act by Proclamation of the Governor published in the Gazette." Sec. 45 provides that in Part IV. of the Act the word minerals shall not include coal or shale, nor shall coal or shale be included within the substances which may be declared minerals by Proclama- tion of the Governor." Sec. 46 (2) provides that " If the Crown grant of any private land contains, or if not yet issued will when issued contain, a

25 CLR 554

reservation to the Crown of all minerals, the said land shall also be open to mining under this Part for all minerals."

Held, by Griffith C.J. and Rich J. (Gavan Duffy J. dissenting), that the word `reservation in sec. 46 (2) of the Mining Act 1906 means a clause which at the date of the Crown grant had, under the law as then in force, the legal effect of a reservation, and that the word ' minerals '' in both places in which it is used in the section means the substances mentioned in sec. 3 excepting those mentioned in any Proclamation under sec. 3.

Held, therefore, by Griffith C.J. and Rich J. (Gavan Duffy J. dissenting), that where pursuant to a conditional sale under sec. 13 of the Crown Lands Alienation Act of 1861 a Crown grant of certain land had been issued in 1886 containing a reservation of all minerals which the land might contain, and after a Proclamation under sec. 3 of the Mining Act 1906 that limestone was a mineral the Commonwealth had acquired the land under the Lands Acquisi lion Act 1906, in an action for compensation under sec. 37 of that Act the claimant was entitled to give evidence as to the value of the limestone con-

Quare, by Griffith C.J. and Rich J., whether, even if the land were open to the risk of being invaded by private persons in search of limestone under the Mining Act, the value of the limestone should not be taken into account in estimating compensation.

Decision of the Supreme Court of New South Wales: Hazeldell Ltd. v. The Commonwealth, 18 S.R. (N.S.W.), 342, affirmed.

APPEAL from the Supreme Court of New South Wales.

On 12th April 1886 a Crown grant of about 640 acres of land in New South Wales was issued to Thomas Shanahan, which recited that Shanahan claimed 'to be entitled, in respect of a purchase by conditional sale without competition, under sec. 13 of the Crown Lands Alienation Act of 1861 " to the land; that the declaration required by sec. 18 of that Act had been made; that the Minister for the time being charged with the administration of the public lands was satisfied that all things required by law to be done to entitle Shanahan to a grant in fee simple subject to the reservations therein- after contained had been done and performed, and that the purchase money payable for the land had been duly paid. The Crown grant contained the following provisions " Provided nevertheless and We do hereby reserve unto Us Our heirs and successors all minerals which the said land contains with full power and authority for Us Our heirs and successors and such person or persons as shall from time

25 CLR 555

to time be authorized by Us Our heirs and successors or by the Gover- nor for the time being of Our said Colony to enter upon the said lands and to search for mine dig and remove the said minerals with full right of ingress egress and regress for the purposes aforesaid Pro- vided also and We do hereby further except and reserve unto Us Our heirs and successors all such parts and SO much of the said land as may hereafter be required for a public way or public ways canals or railroads in over and through the same to be set out by Our Governor for the time being of Our said Colony or some person by him authorized in that respect And also all sand clay stone gravel and indigenous timber and all other materials the natural produce of the said land which may be required at any time or times here- after by the Government of Our said Colony for the construction and repair of any public ways bridges or canals or for naval purposes or railroads or any fences embankments dams sewers or drains necessary for the same together with the right of taking and removing all such materials And also the right of full and free ingress egress and regress into out of and upon the said land for the several pur- poses aforesaid or any of them." On 21st August 1907 a Proclama- tion was published in the New South Wales Government Gazette declaring limestone, shale, marble, mica, pitchblende and fire-clay to be "minerals within the meaning of the Mining Act 1906. On 20th January 1914, after certain mesne transfers, the land was transferred to a company called Hazeldell Ltd. By notification in the Commonwealth Gazette, published on 10th April 1915, the Com- monwealth acquired 56 acres of the land under the Lands Acquisition Act 1906, and by a writ issued on 27th June 1916 Hazeldell Ltd. instituted an action for compensation against the Commonwealth in the Supreme Court of New South Wales claiming £100,000 as compensation, alleging that the land contained rich and extensive deposits of limestone and shale. The Commonwealth, by their defence, alleged that the sum which they had offered, namely, £1,200, exceeded or was equal to the compensation to which the plaintiffs were entitled. The action came on for hearing before Ferguson J. Evidence was tendered on behalf of the plaintiffs as to the extent and value of the limestone, but the evidence was rejected, and thereupon by consent the amount of compensation was

25 CLR 556

formally determined at £1,200. On motion by the plaintiffs the

Full Court set aside this determination and ordered a new trial Hazeldell Ltd. v. The Commonwealth 1.

From that decision the Commonwealth now, by leave, appealed to the High Court.

Knox K.C. (with him Alec Thomson), for the appellants. At the date of the acquisition by the Commonwealth the land was, under sec. 46 2 of the Mining Act 1906, open to the public for mining for limestone, and therefore the respondents, having no exclusive right to the limestone, are not entitled to compensation in respect of it. The meaning of sec. 46 (2) is that, if the Crown grant contains in words a reservation of " all minerals," then the land is to be open to mining for all the substances mentioned in the definition of "minerals" in the Act and all substances which may from time to time be declared to be minerals. The Legislature in enacting sec. 46 (2) had in mind that most of the alienations of Crown land were for agricultural and pastoral purposes only, and that the Crown grants in such cases contained in terms a reservation of

all minerals" and the intention was that in all such cases the land should be open to mining for all minerals which came within the definition or might thereafter be brought within it. If the word "minerals" is interpreted as meaning, in both places where it occurs in sec. 46 (2), minerals as defined by the Act, then there are no cases to which the sub-section can apply, for there are no Crown grants which either in words or in effect reserve those minerals. The Crown grant of the land was issued under the Crown Lands Alienation Act of 1861; for, although it was issued after the Crown Lands Act of 1884 was passed, by sec. 2 of the latter Act all rights and obligations acquired under or imposed by the former Act were to remain unaffected. The reservation in the Crown grant of "all minerals which the said land contains" is therefore unaffected by the definition of "minerals" in sec. 4 of the Act of 1884. Limestone is a mineral within the reservation in the Crown grant. The proper test of whether a substance is a mineral is that laid down in Hext V. Gill (2), namely, whether it is a substance which can be got from

118 S.R. (N.S.W.), 342. 2L.R. 7 Ch., 699, at p. 712. 25 CLR 557

under the surface of the earth for the purpose of profit. See also H. C. Lord Provost and Magistrates of Glasgow v. Farie 1; Earl of Jersey V. Guardians of the Poor of Neath Poor Law Union 2 Attorney- General v. Salt Union Ltd 3.

Campbell K.C. (with him Pike and Ferguson), for the respondents. The result of the interpretation put for the appellants upon sec. 46 (2) of the Mining Act 1906 is to confiscate minerals which are not included in the reservation in the Crown grant, and which therefore are vested in the grantee. Such an effect will not be given to an Act unless there is no escape from it (Minister of Railways and Harbours of the Union of South Africa v. Simmer and Jack Proprietary Mines Ltd. 4 Western Counties Railway Co. v. Windsor and Annapolis Railway Co. 5 ). There is nothing in the context of the Act which requires a different meaning to be given to the word "minerals' where it first occurs in sec. 46 (2) from that of the same word where it secondly occurs in that sub-section. The definition in sec. 3 of the word "minerals" is exhaustive (Ditworth V. Commissioner of Stamps 6 The intention of the Legislature in enacting sec. 46 (2) was to permit mining on private land for all minerals which were reserved to the Crown in Crown grants. That is shown by the history of the legislation. See Mining Act of 1889 (53 Vict. No. 20), sec. 2; Mining on Private Lands Act of 1894 (57 Vict. No. 32), secs. 3, 11 Mining Laws Amendment Act of 1896 (60 Vict. No. 40), secs. 2, 5, 9: Mining on Private Lands (Amendment) Act 1902 (No. 101 of 1902), sec. 3. The words " all minerals," therefore, in both places where they occur in sec. 46 (2) mean all minerals the property in which has been reserved to the Crown. That sub-section applies to grants under the Crown Lands Alienation Act of 1861 as well as to grants under the Crown Lands Act of 1884. As to grants under the former Act the question is whether as a fact the substance in question was a mineral at the time of the grant, and as to grants under the latter Act the question is whether as a fact the substance was at the time of the grant a mineral within the definition. Limestone never was

113 App. Cas.. 657. 222 Q.B.D., 555. 3(1917) 2 K.B., 488, at p. 492. 4(1918) A.C., 591, at p. 603. 57 App. Cas., 178. 6(1899) A.C., 99. 25 CLR 558

a mineral within the contemplation of the Legislature. It

substance which is obtained not by mining but by quarrying. The distinction is drawn in several Acts. See Crown Lands Occupation Act of 1861 (25 Vict. No. 2). sec. 8; Lands Acts Amendment Act 1875 (39 Vict. No. 13), sec. 38 Crown Lands Act of 1884, sec. 90. Not being a mineral at the time this Crown grant was issued, the limestone passed to the grantee, and sec. 46 (2) of the Mining Act 1906 has no application. [Counsel also referred to Barnard- Arque-Roth-Stearns Oil and Gas Co. v. Farquharson 1.]

Knox K.C., in reply.

Cur. adv. vult. The following judgments were read :-

GRIFFITH C.J. AND RICH J. This is a claim by the respondents for compensation for the value of land taken by the Commonwealth for public purposes. The land contains large quantities of limestone. At the hearing of the claim they tendered evidence as to its quantity and value. The evidence was objected to by the appellants on two grounds: first, that the plaintiffs had no exclusive right to the limestone any more than any other subject of the Crown in New South Wales, and it therefore could not be taken into consideration in estimating the compensation second, that the limestone was a mineral reserved to the Crown in right of New South Wales.

We will deal with the second point first, as it may have a material bearing on the Statute relied upon in support of the first.

The claimants' title to the land is under a Crown grant, dated 12th April 1886, of land which had originally been taken up under the Crown Lands Alienation Act of 1861. At this date grants were required to be issued in accordance with the Crown Lands Act of 1884, which confirmed existing contracts, but provided (sec. 5) that Crown lands should not be sold, reserved or dealt with, except under and subject to the provisions of that Act. Sec. 6 provided that the Governor might grant, reserve or otherwise dispose of Crown lands, but only for some estate, interest or purpose authorized by that Act, and subject in every case to its provisions. Sec. 7

1(1912) A.C., 864, at pp. 869, 871. 25 CLR 559

provided that all grants issued under the authority of the Act should H. C. contain a reservation of " all minerals" in the land.

The term "minerals" when used in the Act was, by sec. 4, to mean and include coal and kerosene shale and any of certain specified metals, and any other substance which might from time to time be declared a mineral within the meaning of the Act by Proclamation of the Governor. No such Proclamation has ever been issued.

The Act of 1861 had required (sec. 18) that a grant should contain the reservation of any minerals which the land may contain."

It has been suggested that the grant of 1886, although made under the Act of 1884, must be taken to have been made under the Act of 1861, and must be construed accordingly. It is also suggested that the reservation prescribed by the Act of 1861 was larger than that prescribed by the Act of 1884. If this is so, it may be that in a suit between the Crown and the grantee the grant might be rectified, or it may be that the Act of 1884 would be construed as a partial relinquishment of possibly larger powers of reservation conferred by the Act of 1861. But we are of opinion that in a suit between strangers to which the Crown, in right of New South Wales, is not a party, no question can be raised as to the propriety of the words used, and that the Court is bound to construe the grant as it finds it,

SO that the rights of the parties of which the Court must take cog- nizance are those which are ascertained by construing the language of the grant actually issued. It was SO held by the Judicial Com- mittee in the case of Osborne v. Morgan 1. It appears from the provisions already quoted that the Crown had no power either to grant land or make any reservation from a grant, except in accor- dance with the law. The reservation, and the only reservation, authorized was of 'all minerals in such land," and the meaning of the word "minerals" was defined, as already stated, in words which obviously did not include limestone. If there were room for doubt. sec. 90 of the Act of 1884, in which the substance limestone is specifically dealt with by that name, puts the matter beyond question. Any further reservation would therefore have been unauthorized by law, and cannot be presumed to have been intended.

If, in a Statute authorizing a grant of any subject matter, the

113 App. Cas., 227. 25 CLR 560

power is conferred by the use of a particular word with a meaning

defined by the Statute itself, it cannot be contended that a grant of a subject matter described by that word can extend to any other subject matter not included in the definition. This seems quite obvious, and we cannot see any reason why the same rule should not be applied to an authorized or prescribed reservation.

The grant in question contained the words "We hereby reserve unto Us

all minerals which the said land contains." For the reasons already given, we think that these words must be con- strued as meaning all minerals within the definition of the Statute. If we are right in this conclusion, the reservation in the deed of grant did not operate to reserve limestone from the land granted, which accordingly passed to the grantee subject to any exception of minerals specially excepted in the grant (Real Property Act (26 Vict. No. 9) secs. 12 and 3).

We pass to the other point. The appellants contend that, whether the property in the limestone passed or did not pass to the grantee, it is subject to the provisions of the Mining Acts, and that under those Acts any person holding a licence from the Crown (of New South Wales) has a right to mine for and carry away limestone on private land. They rely upon sec. 46 (2) of the Mining Act 1906, which is as follows: 'If the Crown grant of any private land con- tains, or if not yet issued will when issued contain, a reservation to the Crown of all minerals, the said land shall also be open to mining under this Part for all minerals." It is contended that the test established by this section is not whether any specified mineral is or is not reserved to the Crown, but whether the deed of grant contains words purporting to reserve, eo nomine, all minerals. This gives a construction which would make the proprietary rights of the grantee dependent upon the words used in an ancient grant, without regard to the meaning which the words SO used had at the date of the grant.

The respondents maintain that the words "contain a reservation to the Crown ' mean "contain a provision expressed in words which, if now used in a grant, would, in the opinion of the Court, have the effect of effectually reserving to the Crown," whatever the form of words may be.

25 CLR 561

We pause for a moment to say that the meaning of the language of a grant, which is a record of a present transaction, must be determined as at the date of the grant, and that a subsequent change, however arising-by lapse of time, changed circumstances, gradual modifications of usage, or otherwise-cannot affect the meaning of the grant itself (Lord v. Commissioners for the City of Sydney 1 ).

It may be, indeed, and it is boldly contended, that power may be given to the Governor to alter the meaning of the words in a grant or reservation SO as to increase or diminish the quantity of the estate originally granted. Without disputing the absolute power of Parliament to make such an extraordinary enactment, we only remark now that any language of the Legislature SO relied upon must be clear and explicit to produce such an effect.

We proceed to examine the provisions of the Mining Act of 1906. This Act, like others which preceded it and are repealed by it, did not purport to deal with rights of property as between the Crown and the subject, but only with the powers of the Crown in respect of subject matter reserved to it. Sec. 3 defines the term "mineral" as meaning and including certain metals and mineral substances and also "any other substance which may from time to time be declared a 'mineral' within the meaning of this Act by Proclamation of the Governor published in the Gazette," It will be observed that the definition is for the purposes of that Act only. In our opinion, the only effect of such a Proclamation is that it alters the meaning of the definition of the term mineral in the Statute as from the date of the Proclamation SO far as regards any further action in respect of minerals, but that the Proclamation has no effect upon the question whether any specific substance is reserved to the Crown by an earlier grant.

From an early time, many, but not all, deeds of grant had con- tained reservations of minerals, and, after the Act of 1861, all had contained reservations of gold. Further reservations were not unknown, but for some time no practical provision was made for enabling the Crown to exercise its reserved rights in the granted land. It will be sufficient to begin with the Mining on Private Lands

112 Moo. P.C.C., 473, at p. 497. 25 CLR 562

OF A. Act of 1894 (57 Vict. No. 32), which contained a scheme empowering

mining wardens to authorize holders of a miner's right or mineral licence to enter upon private land which is subject to the Act, and to mine thereon for minerals. This Act applied only to certain minerals other than gold, which were defined to be silver, lead, tin. and antimony (sec. 2). Sec. 3 of the Act prescribed that where the Crown grant contains, or if not yet issued would when issued contain, a reservation to the Crown of all minerals which the said land contains, such land shall be open to mine thereon or thereunder for silver, lead, tin, and antimony, in addition to gold."

The construction of the words "where the Crown grant contains

" raised a question similar to that already adverted to, which arises under sec. 46 of the later Act of 1906, and we say nothing further on the point at present.

The Act No. 101 of 1902 enlarged the list of minerals in respect of which authority might be issued by the warden. In that Act the test was "whether the land in question was open to be mined upon for silver, lead, tin, and antimony, in addition to gold," which carries the matter no further.

The next Act is the Act of 1906, already quoted, which is a con- solidation Act and repealed all the earlier Mining Acts.

It is apparent on the face of all these Acts that the purpose of the Legislature was to enable practical use to be made of the reserved rights of the Crown to minerals, which rights had previously been merely nominal. There is nothing in the Acts to indicate that the Crown intended to authorize a subject to mine upon private land for minerals which had not been reserved to the Crown.

It is said, however, that it is sufficient that the deed of grant should contain the words "We reserve all minerals," whether these words meant or did not mean, at the time of the grant, all or any specific inorganic substances, provided that the Governor thinks fit to declare them minerals. This argument is founded on the interpretation clause of the Act of 1906 already quoted. A Pro- clamation declaring limestone to bé a "mineral" within the meaning of that Act had been made by the Governor in August 1907.

In the phrase "reservation of all minerals" contained in section 46 (2), the word "reservation" means, in our opinion, a clause

25 CLR 563

which at the date of the grant had, under the law then in force, H. the legal effect of a reservation.

The contention of the appellants is, in substance, that upon the issue of the Proclamation of August 1907, the meaning of the words 64 all minerals" where used in the grant of 1886, which, in that year, did not and could not lawfully mean or include limestone, became altered, and that these words had a new meaning in future. If this is the law, persons in the position of the respondents may be suddenly and arbitrarily and without compensation dispossessed of valuable rights of property. It is a settled rule of construction that such an intention cannot be imputed to the Legislature unless ex- pressed in unequivocal terms incapable of any other meaning (Western Counties Railway Co. v. Windsor and Annapolis Railway Co. 1; Commissioner of Public Works (Cape Colony) v. Logan 2 ).

On examining the words of sec. 46 (2) of the Act of 1906, the words all minerals," which are twice used, appear to have been used in each instance in the same sense; and it appears that the object was to confer upon the subject rights coextensive with those of the Crown. We do not think that, where secondly used, they can be construed as conferring upon individuals adverse rights over private property not possessed by the Crown. It may be observed that sec. 70 of the Act speaks of "mineral not reserved to the Crown," recognizing at least the possibility of such a state of things existing. The answer that is made to this argument is that the words "We reserve all minerals are a common form, and that there is no known instance of any reservation to the Crown of all minerals except by those words, SO that if the respondents' construction is adopted the provision may be futile. Such a result is not unprecedented, but we do not think the possibility of it would be sufficient to exclude the rule laid down in Logan's Case (2). The provision would not, however, be futile, for, if the fact be that no Crown grant of land in existence contains a reservation in fact of all minerals eo nomine, it mav be provided that future Crown grants shall contain such a reservation: or the slip, if it be one, can perhaps be remedied by legislation.

Upon any construction of sec. 46 (2) the term " all minerals

17 App. Cas., 178. 2(1903) A.C., 355. 25 CLR 564

where secondly used in the section must denote and include all such

physical entities, except coal (sec. 45), as are comprised in that designation, including those mentioned in the Proclamation. But, according to the appellants' suggested construction, the same words, where firstly used, do not refer to physical entities at all, but refer to the term "all minerals' " as an etymological expression which may be found in a deed of grant, without regard to their meaning as there used. This is not consistent with ordinary canons of con- struction.

Before concluding, we would remark that sec. 46 2 only deals with the case of the reservation of " all minerals." If the words of the clause of reservation are " all minerals," and the test to be applied is not the fact of reservation but the form of words used, the question still remains whether at the date of the grant in which the words are used the substance in question was a mineral or not. On that point we think that the true test is to be found in the judg ment of the Judicial Committee in Farquharson's Case 1: The only question for decision is, what, having regard to the time at which this instrument was executed, and the facts and circum- stances then existing, the parties to this deed intended to express by the language they have used, or, in other words, what was their intention touching the substances to be excepted as revealed by that language"; and not the test proposed by Mellish L.J. in Hext V. Gill (2). Lord's Case 3, already quoted, is to the same effect.

We should add that it is by no means clear to us that, even if the land were open to the risk of being invaded by private persons in search of limestone under the Mining Act, it would follow that the value of the limestone ought not to be taken into consideration in estimating compensation. Enormous areas of land in New South Wales are subject to similar risks, but we have never heard it suggested that the practical effect has been to reduce the value of those lands to prairie value, although the matter would be one for consideration in estimating the compensation.

The appeal must, therefore, be dismissed with costs.

2L.R. 7 Ch., at p. 712. 1(1912) A.C., at p. 869. 312 Moo. P.C.C., 473. 25 CLR 565

GAVAN DUFFY J. In my opinion the judgment of Ferguson J. H. C. OF is undoubtedly correct. He decided that the plaintiff company was not entitled to be compensated for the loss of the limestone contained in its land as if it were the absolute owner of such lime- stone, but that regard must be had to the fact that its value to the plaintiff company was affected by the provisions of the Mining Act 1906. The plaintiff company derives its title to the land in ques- tion from a Crown grant issued to one Thomas Shanahan in the year 1886, which reserved to the Crown all "minerals which the said land contains." The learned Judge assumed for the purpose of his judgment that the grant had been issued under the authority of the Crown Lands Act of 1884, but he thought that he was not at liberty to attribute to the word "minerals" in the Crown grant the meaning which was assigned to it in that Act by sec. 4. He was of opinion that it was unnecessary to consider whether lime- stone was included in the reservation of all minerals in the Crown grant, because he thought that if a Crown grant of private land purports to contain a reservation of all minerals such land is open to mining for limestone under Part IV. of the Mining Act 1906, and to that extent interferes with the grantee's proprietary interest in the limestone, if any such interest exists. I do not desire to dissent from this view of the law, but the facts of the case render it unneces- sary to express any judicial opinion upon it. I think the learned Judge assumed too much in favour of the plaintiff company. The Crown grant, though issued after the passing of the Crown Lands Act of 1884, was not and could not have been made subject to its provisions. Before the year 1884 the land had been conditionally sold under the provisions of sec. 13 of the Crown Lands Alienation Act of 1861, and under sec. 18 of that Act the purchaser was entitled, at the expiration of three years from the date of the conditional purchase and on the performance of certain specified conditions, to have issued to him a grant of the fee simple but with the reservation of any minerals which the land might contain. Before the period of three years had expired the Crown Lands Alienation Act of 1861 was repealed by the Crown Lands Act of 1884, but the new Act did not deal with the issue of Crown grants with respect to existing conditional purchases except by sec. 2, which declared

25 CLR 566

that the repeal should not of itself prejudice or affect anything con-

tracted to be done under the authority of the repealed enactment, and provided that, notwithstanding such repeal, all rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enactments should, subject to any express pro- visions of this Act in relation thereto, remain unaffected by such repeal. Secs. 5, 6 and 7, which were relied on by the plaintiff com- pany, have no reference to grants issued in pursuance of a con- ditional purchase under the Crown Lands Alienation Act of 1861. When we examine the Crown grant itself, we find that it purports to be issued wholly under the authority of the Crown Lands Aliena- tion Act of 1861. It is intituled "A grant of land purchased by conditional sale without compensation' it recites the conditional sale and the purchaser's claim to the land under sec. 13 of the Crown Lands Alienation Act of 1861 and the performance of the conditions required by sec. 18 of the Act, and thereupon proceeds to grant the said land to Thomas Shanahan for an estate in fee simple but reserving " all minerals which the said land contains," which is a proper method of describing a reservation made under the authority of sec. 18 of the Crown Lands Alienation Act of 1861. The Crown Lands Alienation Act of 1861 contains no definition of the word "minerals," and therefore it cannot be contended that the word

' minerals '' in the grant is fettered by any statutory definition.

Sec. 46 (2) of the Mining Act 1906 is as follows " If the Crown grant of any private land contains, or if not yet issued will when issued contain, a reservation to the Crown of all minerals, the said land shall also be open to mining under this Part for all minerals." Sec. 3 enacts that, unless the context or subject matter otherwise indicates, the word "minerals" means certain specified substances and any other substance which may from time to time be declared a "mineral" within the meaning of the Act by Proclamation of the Governor published in the Gazette. Sec. 45 provides that under Part IV. of the Act the word "minerals" shall not include coal or shale, nor shall coal or shale be included within the substances which may be declared minerals by Proclamation of the Governor. Limestone has been declared a mineral within the meaning of the Act by Proclamation of the Governor, and it is therefore a mineral

25 CLR 567

within the meaning of sec. 46 (2) unless the context or subject H. matter otherwise indicates. The word "minerals" is used twice in sec. 46 (2), first in the phrase " If the Crown grant of any private land contains

a reservation to the Crown of all minerals," and secondly in the phrase the said land shall be open to mining under this Part for all minerals." I think the word "minerals" when first used in the sub-section should not be fettered by the statutory definition. In my opinion the sub-section must be con- strued as dealing either with grants which purport to reserve to the Crown all minerals in the ordinary signification of that word, or in the alternative with such as in law have the effect of creating such

reservation. It cannot be intended to deal with Crown grants which contain a reservation of all minerals within the meaning of sec. 3 as amended by sec. 45. To give it such a construction would be to render it wholly inoperative, for it would exclude from its operation all Crown grants containing the ordinary reservation of

all minerals where those words are not governed by the statutory definition contained in the Mining Act 1906, and no Crown grant containing a reservation of minerals as defined by sec. 3 and sec. 45 has issued or could have issued under any Act now or heretofore in force in New South Wales. On the other hand, I do not know of any reason why the word "minerals" when used in the last part of sec. 46 (2) should not have the meaning provided in the inter- pretation clauses, and there is a very weighty reason why it should have such a meaning, because otherwise the definition of "minerals," which is especially adopted and amended for Part IV. of the Act, will have practically no application in that Part. Sec. 46 (2) defines the private lands which shall be open to mining under that Part. If the word "minerals" in the second part of the sub- section is not subject to the statutory definition, the whole object of Part IV. of the Act fails, for coal and shale, though excepted by sec. 45, would be open to mining, and no substance which was not a mineral independent of the interpretation clauses would be open to mining. The Crown grant in question in this case validly reserves all minerals in the ordinary signification of that word, and limestone is a mineral within the meaning of the second part of the sub-section. The result is that the sub-section authorizes mining for limestone

25 CLR 568

on the land granted, and to that extent interferes with the pro-

prietary right of the plaintiff company. It is said that on any interpretation of the reservation in the Crown grant it does not include limestone, and that the effect of thus construing the sub- section is to confiscate the property in the limestone which passed under the grant, and that we ought not to attribute such an intention to the Legislature. If a man takes land under a grant reserving to the Crown all minerals, the question of what is or is not a mineral under the reservation may be often a very difficult one to determine, and I cannot see that any hardship is inflicted on the grantee by Parliament when it leaves to the Governor in Council the task of defining the substances which may fairly and properly be dealt with by the Crown in pursuance of such reservation, and to the Secretary of Mines the function of determining what substances shall in fact be mined, and this is what the Legislature has done. In my opinion the appeal should be allowed, and the judgment of Ferguson J. restored.

Appeal dismissed with costs. Solicitor for the appellants, Gordon H. Castle, Crown Solicitor for the Commonwealth.

Solicitors for the respondents, Parish &Stephen.