Wade v New South Wales Rutile Mining Co Pty Ltd

[1969] HCA 28

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

WADE v. NEW SOUTH WALES RUTILE MINING CO. PTY. LTD.

(1969) 121 CLR 177

19 June 1969

Mines and Minerals (N.S.W.)—Statutes

Mines and Minerals (N.S.W.)—Mining on private lands for minerals privately owned—Whether existence of authority to enter in another prevents owner from carrying on mining operations—Mining Act, 1906-1964 (N.S.W.), s. 70D. Statutes—Derogation from common law rights—Mining Act, 1906-1964 (N.S.W.), s. 70D.

Decisions

June 19.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Menzies and those prepared by my brother Owen. (at p180)

10. The facts of the matter and the circumstances of the litigation between the parties are fully set out by my brother Owen and I have no need to repeat them nor desire to add to his account of them. The relevant sections of the Mining Act, 1906-1964 (N.S.W.), are also referred to in those reasons. (at p180)

11. I agree with the conclusions which my brother Justices have reached. For myself, I would wish to say that I have come to the conclusion that the language of s. 70D is too intractable for any construction other than one which denies the power to grant a mining lease where bona fide mining operations are being carried on by or with the concurrence of the owner at the time when the application for such a lease is made. I would be prepared to conclude from a survey of the Act as a whole and of Pt IV generally and Div. 4A of that Part in particular that the broad policy of the legislature was to bring mining on private land both for reserved and unreserved minerals into parallel with mining on Crown lands. This was sought to be effected by such provisions as s. 70A and particularly s. 70A (3). If that policy had been completely expressed, the grant of an authority to enter private land at a time when no mining operations were being carried on by or with the concurrence of the owner would have been sufficient to prevent any subsequent commencement of mining operations by any person, including the owner, during the subsistence of the authority to enter. But such a policy has not been carried out in the provisions of the Act, itself a patchwork and a singularly inadequate piece of legislation to govern and control such an important activity as mining. The explicit words of s. 70D leave no room for any implication which would completely assimilate the provisions of the Act as to mining on private lands for unreserved minerals to the general plan of the Act which is built upon the grant of an authority to enter. But perhaps even more importantly, the fundamental principle that if Parliament intends to derogate from the common law right of the citizen it should make its law in that respect plain is pertinent to the question whether any such implication should be sought to be made. The courts are not entitled, and ought not, to eke out a derogation of such private rights by implications not rendered necessary by the words used by Parliament but merely considered to be consistent with the policy which the courts conclude or suppose the Parliament to have intended to implement. Consequently, I feel bound to give s. 70D its literal operation. Being of that mind, I also agree with the conclusions reached in the Supreme Court. I would dismiss the appeal. (at p181)

McTIERNAN J. I am of opinion that the appeal should be dismissed. The reasons of the learned judges of the Court of Appeal are in my opinion entirely right. I cannot usefully add anything to what their Honours have said in upholding the decision of the learned Chief Judge in Equity. (at p182)

MENZIES J. This appeal concerns the meaning and application of certain of the provisions of the Mining Act, 1906-1964 (N.S.W.), relating to mining upon private land for unreserved minerals. It is a contest between the respondents, the owners of land at Murwillumbah and a company carrying on mining operations thereon for unreserved minerals under agreement with the owners, and the appellant who claims to have the sole right to carry on such mining operations upon the land because (1) on 2nd November 1960 he applied for an authority under s. 70A of the Mining Act to enter and search for minerals thereon, (2) on 24th June 1966 he obtained the authority for which he had applied as aforesaid nearly six years earlier; and (3) on 30th June 1966 he applied for mining leases over the land. These latter applications were made under s. 70B of the Mining Act. (at p182)

2. The mining operations of which the appellant complains were commenced in 1965, i.e., after the date of the appellant's application for an authority to enter and search but before either the grant of the authority or the appellant's application for leases. (at p182)

3. It seems to me that the appellant can succeed only if the Mining Act made it unlawful for the owners of the land to commence mining operations thereon once the appellant had applied for an authority to enter and search thereon. There is no express provision to this effect but we were referred to a number of sections of the Mining Act which, it was claimed, impliedly did so. In my opinion the claim is without foundation and the rights of the holder of an authority granted under s. 70A can be fully exercized notwithstanding that an owner commences and carries on mining operations upon his own land. The rights of owners to use their lands are not to be diminished except by express words or necessary intendment. The mere supposition of inconsistency between rights conferred by the Act upon others and the rights of owners would not be enough. The general policy of the Act, is, of course, to encourage mining but it is to be observed that part of that encouragement is to owners to mine upon their own lands and it is only an owner who can obtain from the Governor a mining lease without having an authority to enter and search. Contrast ss. 70B and 70BA with s. 70BC. (at p182)

4. Furthermore, as I read s. 70D of the Act, the appellant cannot be granted mining leases under s. 70B because at the time of his application for the leases bona fide mining operations were being carried on "by or with the concurrence of the owner". I agree with the interpretation of s. 70D adopted by the Chief Judge in Equity and by the Court of Appeal that "the application" therein referred to is an application for an authority to enter, or an application for a lease, as the case may be. This reading of the section conforms with my understanding of the other relevant provisions of the Act, viz., that an owner is not prohibited from commencing mining on his own land simply because some other person applies for an authority to enter under s. 70A. Section 70D recognizes the possibility of bona fide mining operations commencing between the time of application for authority to enter and the time of application for a lease. It seems to me that if "the application" were to mean the application for an authority to enter simpliciter there was no need for the reference to the grant of the lease because the prohibition upon the grant of an authority to enter would be, of itself, sufficient. Subject to s. 70BA it is only a person with an authority to enter who can apply for a lease, and, if the only significant date is the time when the application for an authority to enter is made, the existence of mining then would, of itself, prevent the granting of a lease without express words prohibiting the granting of the lease. It seems to me that the inclusion within the prohibition of the granting of a lease was intended to add something of significance to the section. It may be added that if the construction of s. 70D that commends itself to me be correct there is a further reason for not regarding the application for or the grant of an authority to enter and search as precluding an owner from mining so long as the authority remains in force. The refusal of a lease does not, of itself, terminate such an authority over a property, but, once a lease is refused to the holder of such an authority, there would seem to be no justification for treating the authority as a bar to mining by the owner of the property. (at p183)

5. An examination of the relevant provisions of the Mining Act as a whole and of s. 70D in particular satisfies me that the decision appealed against is correct and that the appeal should be dismissed. (at p183)

WINDEYER J. This case is a further chapter in the long story of a dispute between the parties and of contests in the courts - mining wardens' courts, the Supreme Court of New South Wales on several occasions, and this Court. The question throughout has been as to the right to mine for zircon, rutile and ilmenite on certain lands at Cudgeon near Murwillumbah in New South Wales. I do not think it necessary that I repeat the facts, which are sufficiently set out in the judgments of the Supreme Court and in the judgment to be delivered by my brother Owen. The question for us depends upon the effect of relevant provisions of the Mining Act, 1906 (N.S.W.), as amended. The Act has been very often amended since 1906 - amended in a tinkering, patchwork way, sometimes without much regard for fundamental legal concepts or propriety of legal language. Because of the steady flow of amendments, it is important to determine the precise date at which the state of the law to be applied is to be considered. The events out of which the case arises began in 1960. But it seems to me that the law to be applied on this appeal is that which governed the Supreme Court for the decision of the proceedings there. These began as three originating summonses dated respectively 20th June, 24th June and 30th June 1966, the present appellant being the plaintiff and the present respondents the defendants in each. The matters were consolidated and heard together by the Chief Judge in Equity, McLelland J. (1966) 85 WN (Pt 1) (NSW) 331 . His Honour on 11th August 1966 dismissed the three suits. From that decision the plaintiff appealed to the Court of Appeal Division of the Supreme Court. That Court (Herron C.J., Sugerman J.A., Walsh J.A.) unanimously, but by separate judgments, dismissed the appeal on 5th December 1967 (1967) 70 SR (NSW) 227; 87 WN (Pt 2) 224 . From that decision this appeal comes to this Court by special leave. In my opinion we must determine it according to the state of the law applicable to it on 5th December 1967. That excludes from consideration the 1967 amendment of the Mining Act. Except for the express provisions made in s. 1 (5) - which give a retrospective operation to certain amendments of s. 70C of the principal Act, not material for this case - the 1967 amending Act seems to have no retrospective operation. It was not assented to until 7th December 1967, two days after the Supreme Court judgment now under appeal was given; and (except for s. 10) it did not commence until it was proclaimed. Still less can we have regard to the 1969 amending Act. It was not assented to until 2nd April last to commence thereafter on a date proclaimed. Therefore when in this judgment I refer to the Mining Act, 1906, as amended, sometimes calling it "the present Act", I shall, unless the context otherwise requires, mean the Act as it stood before 1967, that is the form in which it had to be applied in the Supreme Court in considering the consequences of the events from which the case arose.

The common law background. (at p184)

2. I may say at once that having had an opportunity of reading the judgment to be given by my brother Owen, I agree with him that the case depends upon s. 70D of the Act. I agree too with his Honour's view of the meaning and effect of that section. It accords with its words: it accords too with their context and with the general policy and history of the mining law of this country. The section must be seen against a background - against the elementary principle of the common law that a freeholder for an estate of inheritance is entitled to take from his land anything that is his. Except for those minerals which belong to the Crown, the soil and everything naturally contained therein is his. His common law rights are now impaired by the provisions of the Act. But it is, I think, a mistake to read the Act as if his rights to mine the minerals on his land were created by it, derived from it, or depended on it. Rather it should be read to see only how far and in what way it curtails or modifies his common law rights as owner of all the minerals on his land which do not belong to the Crown. (at p185)

3. This case seems to me to be pre-eminently one in which it is well to remember the general principle which Griffith C.J. enunciated when he said in this Court:

"It is always necessary in dealing with any law that alters the common law, and especially where the common law rights of the liberty of the subject or relating to property are concerned, to consider what was the previous law, and what were the apparent reasons for the alterations made": Nolan v. Clifford (1904) 1 CLR 429, at p 444

It is really needless to cite other passages to the same effect; but perhaps two will bear quotation once again. One is what Romilly M.R. said in Minet v. Leman (1855) 20 Beav 269, at p 278 (52 ER 606, at p 610) :

". . . the general words of the Act are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched. . . . This principle of construction, as a general proposition, cannot be disputed."

The other is the passage from Maxwell on Statutes quoted by O'Connor J. in Potter v. Minahan (1908) 7 CLR 277, at p 304 , noting especially the reference to what Marshall C.J. said in the Supreme Court of the United States in 1805:

"Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects": United States v. Fisher (1804) 2 Cranch 358, at p 390 (2 Law Ed 304, at p 315). .

The Mining Act, 1906, as it now stands, must of course be read and construed as a whole, but it was a consolidating Act, and the separate and different ancestries of its parts throw light on the matters with which this case is concerned - the relation of the Act to the proprietary rights of landowners in their own land and minerals there which they own. I have found it helpful in reaching a decision in this case to trace the history of the mining law. For this reason I shall set it out in broad outline.

The history of Australian mining law. (at p186)

4. The mining law of Australia begins with the gold rushes and the roaring days of last century. Gold, the "royal metal", has always had a special position in law: a position which silver is perhaps entitled to share. Gold in the Australian colonies belonged always to the Crown, whether it was in Crown land or in lands alienated by the Crown. No express reservation was necessary to preserve the Crown's rights. They depended upon prerogative rights recognized by the common law. Thus gold did not pass by a Crown grant of the land in which it lies. If this were once debatable, all doubts were dispelled, for Victoria, by the decision of the Privy Council in Woolley v. Attorney-General (Vict.) (1877) 2 App Cas 163 And in New South Wales the position was expressly recognized by the legislature when in the Preamble to the Mining on Private Lands Act of 1894 it was recited that:

". . . certain other lands have from time to time been alienated without express reservation of any minerals which might afterwards be found therein, but having regard to the well established laws of England whereby it has been held from time immemorial that the royal metal gold does not pass from the Crown unless by express conveyance in the grant of such lands. . . . " (at p186)

5. A different view was at one time taken in Queensland: Plant v. Rollston (1894) 6 QLJ 98 . But that need not concern us. Section 8 of the Mining Act expressly saves the royal prerogative in respect of gold and silver, as did its forerunners in New South Wales. New South Wales mining law began with Governor FitzRoy's Regulations and the Gold Fields Management Act 1852, the long title of which was "An Act for Regulating the Management of the Gold Fields of New South Wales and for raising a Revenue therefrom and for the preservation of order thereon". This Act was repealed in 1857 by the Gold Fields Management Act 1857. The licensing system which it had instituted had, when copied and applied in Victoria, led to the riot at Eureka. The new Act in New South Wales was based upon reforms in the mining laws of Victoria which were the result of a royal commission of inquiry there into conditions on the gold fields. The system based upon the "miner's right" and mining claims and tenements of auriferous Crown lands was substituted for the previous licensing system. Mining for gold on Crown lands was thus authorized, upon payment of royalties as prescribed. The Act did not extend to mining on private land. Indeed by s. 9 it was made an offence for anyone to "mine or employ any person to mine for gold in any land belonging to a private individual without the consent of the owner thereof or his duly authorised agent". This Act thus did not prevent a man mining his own land. It did not in terms prohibit his mining for gold: but it expressly saved the royal prerogative in respect of gold. The Act of 1857 was replaced by the Gold Fields Act of 1861. The general scheme was not much changed. Section 9, which I have just quoted, was expressly preserved. The troublesome legal problems to which it, and the Crown's right in gold generally, could thus give rise appear from the judgments in Reg. v. Wilson (1874) 12 SCR (NSW) 258 . The trial which led to the special case in that matter took place a month before a new Act came into force in 1874. (at p187)

6. The Mining Act of 1874 was more comprehensive than its predecessors. It dealt with mining for other minerals as well as gold. It set up a new system for the administration of the mining law through the Department of Mines; and it initiated the wardens' courts. Many of its provisions were the direct forerunners of sections in the present Act. But all that need be said of it here is that, like its predecessors, it was confined to mining operations on Crown lands. These were defined as all lands not dedicated to a public purpose, or not granted in fee or lawfully contracted to be so granted or not under lease for purposes other than pastoral purposes. (at p187)

7. So far, the legislature had, while preserving the royal prerogative in respect of gold, done nothing to interfere with a freeholder's common law rights in his own land. What had been done was all done to authorize, encourage and regulate the recovery by private enterprise of the mineral wealth of the Crown from the Crown lands of the colony in return for royalties payable to the revenue. The Crown Lands Act of 1884, s. 7, accorded with this policy. It provided that, for the future, all Crown grants of land should contain a reservation of all minerals. "Minerals" here meant, by definition, coal, kerosene shale and any of a list of thirteen metals (which included gold, silver, copper, tin, iron, antimony) 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". The present Act contains a similar definition, with gold omitted because otherwise dealt with, and with a large number of substances expressly added. (at p188)

8. Five years later the interest of the Crown in the minerals of the colony was, for the future, further secured by the Mining Act of 1889. Any tenures of Crown lands thereafter granted under the Crown lands legislation were subject to the rights of the Crown in minerals. The holder of Crown lands on conditional purchase or conditional lease was allowed to search for gold or other minerals: but if any were discovered the conditional sale or lease might be cancelled, the subject land then becoming, in relation to the mining law, in the same position as Crown land generally, that is to say reverting to be part of what in old parlance were called the waste lands of the Crown.

Mining on private land for minerals belonging to the Crown. (at p188)

9. The Mining on Private Lands Act of 1894 embodied a new idea. The earlier statutes had dealt with mining for minerals belonging to the Crown, but only on land belonging in some sense to the Crown - that is to say on land which had not yet been granted by the Crown in fee simple, although it might, by conditional purchase or otherwise, have come into private occupation. Now, in 1894, in order to promote the exploration and full exploitation of the mineral resources of the Crown, mining wardens were empowered to grant to any holder of a miner's right an authority to enter specified private lands where the minerals were reserved to the Crown, and there to search for gold, silver, lead, tin and antimony. An authority to enter entitled the holder, who must also have a miner's right, to enter, either alone or accompanied by one other person, "but without any dog", upon the designated private land, and there take samples from any vein or lode outcropping the surface of the land. But the holder of an authority to enter could not mine until he obtained from the Governor a lease -

". . . of such private lands. . . for the purpose of mining thereon or thereunder, either for gold only, or for silver, lead, tin, or antimony, or any of such minerals, regard being had to the reservations (if any) contained in the Crown grants thereof."

The holder of a mining lease, granted by the Governor as aforesaid, was required to compensate the landowner for any damage done to the surface of the land and to any crop, buildings or other structures, and to pay him a yearly rent of twenty shillings per acre. If the Crown grant had no reservation of minerals, or of minerals other than gold, mining on the land under the provisions of this Act was to be confined to mining for gold or for any ore of which gold was the chief and most profitable metallic product. (at p189)

10. The Mining on Private Lands Act was thus a novel and distinct addition to the mining law of the Colony. The earlier Acts had dealt only with mining on Crown lands. The new Act in one sense reflected the same basic policy; for it dealt only with mining for minerals belonging to the Crown. For these the miner must pay by royalties. The landowner might suffer in his enjoyment of his land; and for this he was to be compensated by the miner. But he was not deprived of any property which was his. All that could be taken from the land by the authorized miner were minerals which had belonged, not to the land owner, but to the Crown.

The Mining Act, 1906. (at p189)

11. All the Acts I have mentioned, with some Acts which had in minor ways amended them, were repealed by the Mining Act, 1906. It consolidated in one statute earlier enactments so as not to destroy the basic principles of the two existing systems: one relating to mining on Crown land, the other to mining for Crown minerals on private land. The common law rights of a freeholder in minerals which were his - because they were not royal metals or not minerals which had been reserved by the Crown when it had granted the land in fee - were still not impaired or in any way interfered with. Parts II and III of the Act dealt with mining on Crown lands: Pt IV (which did not until 1918 include Div. 4A) with mining on private land for minerals which belong to the Crown, not to the landowner: see Thomas v. Haworth (1948) 48 SR (NSW) 327 . (at p189)

12. Before proceeding to the next phase in the story I shall deal briefly with the meanings of certain technical terms which were referred to and discussed in the argument we heard.

Authorities to enter. (at p189)

13. An authority to enter was in its origin in the Act of 1894, s. 8, merely a statutory licence given by a mining warden to the holder of a miner's right to go upon another man's land and there search for gold, silver, lead, tin or antimony. The authority lasted for only fourteen days. The holder of it might take samples, not exceeding in the aggregate twenty-eight pounds in weight, for the purpose of testing and assay. But, as I have said, he could not start mining until the sum had been determined which he must pay to the owner of the land for damage to the surface and to any crops, buildings or other structures, and until he had obtained a mining lease from the Governor. (at p190)

14. The simplicity of an authority to enter under the Act of 1894 did not long continue. Two years later an amending Act enabled the holder of an authority to exercise wider powers. Instead of fourteen days, the authority could be for any period not exceeding twelve months, and with a power in the warden to extend it. After paying a deposit to cover damage and paying rent at a rate fixed by the warden, the holder of the authority could engage in extensive "prospecting work". For the old stipulation of one companion and no dog, there was substituted permission to employ as many men as should be necessary "to carry on prospecting works efficiently" - but never, without the consent of the warden, with less than one man for every five acres. These provisions were no doubt then, in 1896, designed to promote efficient prospecting for Crown minerals and to promote employment. (at p190)

15. The rights and liberties which an authority to enter now gives, and the obligations it creates, are to be found in ss. 50-56 in Pt IV of the present Act. These sections reproduce in substance, but with some alterations, the provisions of the Act of 1896. In law today an authority to enter given under Pt IV of the Act (excepting Div. 4A) confers a right to go upon land there to prospect for whatever minerals are mentioned in the authority. The authority of itself confers no estate or interest in land, and no right in any minerals there except to take samples for testing. It is not transferable: see Gander v. Murray (1907) 5 CLR 575 , per Isaacs J. The original purpose of an authority to enter was simply to enable the holder to go upon private land without becoming a trespasser there; and there to search for Crown minerals, with a view, if the search were successful, to making an application to the Crown for a mining lease. But, as having an authority to enter is a statutory condition precedent to an application for a mining lease of private land, an applicant for a lease who is a stranger to the land must have one, even if he does not need to avail himself of it having learnt of minerals on the land without himself actually going there. A landowner, or the lawful occupier of any private land, who himself desires to obtain a lease to mine Crown minerals on his land (subject of course to payment of royalty) needs no authority to enter upon the land as a preliminary to applying for a mining lease: see s. 25 of the 1894 Act, and now s. 68 of the present Act (noting that this section was greatly amended this year, 1969). A landowner obviously needs no permission from anyone to go anywhere upon his own land. But if he wishes to conduct prospecting operations there for Crown minerals he must first obtain an authority to enter. The term, authority to enter, may seem inapt in this case: but an authority to enter under the Act is not to be understood as simply enabling what would otherwise be a trespass on a private landowner's proprietary rights in the surface of his land. It also authorizes a disturbance of the property of the Crown by prospecting operations for its minerals on the land; and that could be done by prospecting operations by the landowner just as by anyone else. (at p191)

16. Section 68 is in Div. 4 of Pt IV of the present Act. It is perhaps well to repeat that the provisions of that Part (other than Div. 4A) apply only to prospecting and mining operations in respect of Crown minerals. In relation to s. 68 that is made clear by its present context and past history. I quote here and express my complete agreement with a passage which has appeared in successive editions of the well-known textbook Millard on Real Property (N.S.W.) and in its successor by Mr. Helmore (2nd ed. (1966), p. 600):

"Of course, it is not necessary for the owner to have any authority to enter or lease in order to search for or work minerals which belong to him - this section being only designed to enable an owner to work Crown minerals under his land."

Licenses to prospect. (at p191)

17. An authority to enter - which under the present Act is granted pursuant to s. 50 - enables the holder to engage in prospecting operations. Indeed he is compelled to do so within fourteen days upon pain of the authority being cancelled (s.54). It is, however, important to distinguish between an authority to enter which began its career in law in 1894 and a comparative newcomer, the license to prospect on private lands under s. 49A which first came into the law in 1935, having been then created by statute: No. 15, 1935, s. 6. (The word "licence", a noun, has been regularly spelt "license" by the draftsman of the Act. I have adopted this spelling when referring to the Act - for conformity, not for correctness.) This license was apparently intended originally to create a liberty to be exercised pending an application for authority to enter. It was described in the 1935 Act as "License to prospect prior to grant of authority to enter". But in 1963 (by Act No. 57, 1963, s. 5), this description was amended to read "License to prospect on private lands". A licensee under a prospecting license issued under the present Act can apply during its term for an authority to enter; and, if this be granted, the license merges and is extinguished (s. 49A (7) (b)). The relationship between rights given by a prospecting license and by an authority to enter is now not the least confusing of the many difficulties which have been created by tinkering amendments of the Mining Act. The words "prospect", and "prospecting" as an adjective, are met with in various parts of the Act and have to be read with always in mind the definition of "to prospect" in s. 3 as meaning "to search for gold or any mineral".

Exploration licenses. (at p192)

18. An authority to enter must also be distinguished from an exploration license under Pt IVA, which was introduced into the Act in 1963. An exploration license relates to a scheme based upon a geological survey which covers an area measured in square miles "in or upon which bona fide mining operations are not being carried on by or with the concurrence of the owner at the time the application for the exploration license is made". The precise correspondence of these words, quoted from s. 83B (1), with the words of s. 70D, critical in this case, is noteworthy: but otherwise exploration licenses of large tracts of land are entirely different from authorities to enter small areas.

Mining leases of private land for mining minerals belonging to the Crown. (at p192)

19. As I have said, the holder of an authority to enter could under the Act of 1894, and can now under Pt IV of the present Act, apply to the Crown for a mining lease of an area of private land after defining on the land the boundaries of the portion desired. A mining lease of this kind is really a sale by the Crown of minerals reserved to the Crown to be taken by the lessee at a price payable over a period of years as royalties. The terms "mining lease" or "mineral lease", used in that way, have been long known in the law. In Gowan v. Christie (1873) LR 2 Sc &Div 273, at p p 284 Lord Cairns said:

"What we call a mineral lease is really, when properly considered, a sale out and out of a portion of land. It is liberty given to a particular individual, for a specific length of time, to go into and under the land, and to get certain things there if he can find them, and to take them away, just as if he had bought so much of the soil."

And Collins M.R. in In re Aldam's Settled Estate (1902) 2 Ch 46, at p 56 , said that a mining lease "is really in its essence rather a sale at a price payable by instalments than a demise properly so called". It is thus in accordance with usage to describe a right given by the Crown to extract minerals belonging to the Crown as a lease - a term used in the statutes since 1894. The actual form of a mining lease under Pt IV, as shown in sched. 43C of the Mining Regulations, is "a grant and demise" by the Sovereign of a defined parcel of land "for the purpose of mining for working and winning" a specified mineral.

Leases for mining purposes. (at p193)

20. Mining leases are not to be confused with "leases for mining purposes". The latter are granted pursuant to s. 60 of the present Act read with the definition of "mining purposes" in s. 3. Section 60 in its present form is the much amplified successor of ss. 37 and 38 of the Act of 1894. Their importance, and its importance, is as an inroad upon basic legal principle. The Crown is empowered to grant leases of private lands, not for mining for Crown minerals, but for various ancillary purposes, the land so leased not being part of the land being mined. A mining lease under Pt IV involves no departure from the general theory of our law. It is a means by which the Crown disposes of minerals the property in which it has retained. But, by a lease for mining purposes the Crown purports to grant leases of freehold land in private ownership, not for the purpose of the extraction of Crown minerals therefrom, but to facilitate, in one way or another, the extraction of such minerals elsewhere. This is authorized by the statute. Nevertheless it is not easy to accommodate such a transaction with ordinary concepts of law. (at p193)

21. The lease is made subject to an annual rent assessed by the warden "and reserved to the owner of the land so leased"; and compensation for damage is payable to him (s. 60 (3)). In substance therefore the arrangement is in the nature of a compulsory lease by the owner. But in form it is a defiance of principle. The Crown is stated to be the lessor. The Act (s. 60) states that the Governor may grant the lease "in the prescribed manner", and the Regulations provide a form of lease in the name of the Sovereign as lessor. The reservation of rent to the landowner is therefore to a stranger to the lease. In Coke on Littleton, 143 b, it is said:

"It is a maxime in law, that the rent must be reserved to him from whom the state of the land moveth, and not to a stranger. But some do hold, that otherwise it is in the case of the king." (at p194)

22. Accepting that there is thus a qualification of general principle in the case of the Crown, and recognizing the constitutional right of eminent domain and the feudal bases of land tenure, I still think that a lease by the Crown of lands held by a subject, perhaps as a tenant in fee simple - and continuing after the lease to be so held by the subject - is a novel notion in law: or it would be novel if it had not had a place in the mining law of New South Wales for the last seventy-five years. This seems to be one of several matters in which the Mining Act is a law unto itself. But that is no warrant for us to extend its anomalies.

Reserved minerals. (at p194)

23. Apart from gold and silver, in respect of which the Crown's rights are founded on ancient prerogative, the words "reservation of minerals", in Crown grants, and in the Act "minerals reserved to the Crown" refer to an exception from the grant. And the corresponding phrase "land held without reservation of minerals" refers to grants - without an exception of minerals. In a strict legal sense reservations are not equivalent to exceptions: Doe d. Douglas v. Lock (1835) 2 Ad &E 705, at pp 743-745 (111 ER 271, at p 287) . But the words "reservation", "reserving" etc. are often used to mean a keeping back of a physical part of a thing otherwise granted: and so they are to be understood and have long been understood in the Australian law of real property: see the notable judgment Sir Alfred Stephen delivered in AttorneyGeneral v. Brown (1847) 1 Legge 312, at p 322 , the case concerning the coal seams at Newcastle; and cf. McGrath v. Williams (1912) 12 SR (NSW) 477 ; Neild v. Davidson (1890) 11 LR (NSW) Eq 209 .

"Mines" and "Mining". (at p194)

24. "Mine" is an ambiguous word. The Act defines it by stating that it "includes any place, pit, shaft, drive, level, or other excavation, drift, gutter, lead, vein, lode, or reef, whereon, wherein, or whereby any operation for or in connection with mining is carried on". This predicates a working for the extraction of minerals from the earth. In this sense "mining" connotes operations for getting at and getting out minerals. But in old instruments, including some of the statutes I have mentioned, a mine often means an unopened and unworked seam, lode, or deposit of metallic ore in the ground: see per Lord Watson in Lord Provost and Magistrates of Glasgow v. Farie (1888) 13 App Cas 657, at pp 676, 677 ; also AttorneyGeneral v. Brown (1847) 1 Legge, at p 322 . It is in this sense that statutes which I have mentioned spoke, and the present Act in s. 8 speaks, of the royal prerogative in respect of mines of gold and silver. The ambiguity of the word "mine" need cause no difficulty in the present case. It would be correct, although misleading, to say that the respondent landowners are lawfully possessed of mines of minerals on their lands. However, the case turns not on the existence of mines, but on the carrying on of "bona fide mining operations" on the land.

Mining leases under Div. 4A. (at p195)

25. What I have said so far has been to delineate the background of law against which the question in this case stands, by sketching the history of the statute law up to 1918 when Div. 4A of Pt IV was introduced into the Act. This was the result of a wholly new policy. Mining leases of private land had hitherto been restricted to mining for gold or some mineral reserved to the Crown. When the landowner was himself the owner of the minerals on his land, only he, or someone permitted by him might lawfully mine them. No one could acquire any right in them except through him and with his assent. However - by Div. 4A added to Pt IV by Act No. 41 of 1918 - as from 1st January 1919 a mining warden became empowered to grant to any holder of a miner's right an authority to enter private lands and search for minerals not reserved to the Crown (s. 70A). And the holder of any such authority to enter can, if he wishes, apply for a mining lease. Rent and compensation must be paid to the landowner. And royalties, as prescribed by s. 70C and the Regulations, for minerals taken must be paid to the Minister on behalf of the landowner, or if the landowner be not himself the owner of the minerals, on behalf of the owner of the minerals. The obvious policy of this is to encourage mining. The means adopted involve a further, and quite radical, interference with the common law rights of a landowner. Even when he owns the minerals in his land he must suffer them to be mined unless he be active in mining them himself. Section 70D reflects this.

Section 70D.

"70D. (1) No authority to enter, and no lease under this Division shall be granted in respect of any land in or upon which bona fide mining operations are being carried on by or with the concurrence of the owner at the time when the application is made: Provided that in the event of any dispute arising as to whether bona fide mining operations are being carried on as aforesaid, or as to the area protected by this section, the question shall be determined by the Minister after inquiry and report by the warden and the Minister's determination shall be final. (2) The provisions of sections forty-seven and forty-eight of this Act shall apply to applications for authority to enter or lease under this Division." (at p196)

26. The appellant's main argument, as I understood it, was that a landowner could only obtain the protection which s. 70D gives him if he was at relevant times engaged in mining operations which were both bona fide and lawful - bona fide in the sense of being really directed to winning minerals and not a pretence: lawful in the sense of not being in contravention of the Act. As a general proposition that seems to me indisputable. But the way in which it was sought to apply it lacked substance. What was said for the appellant was that mining operations by a landowner, commenced after an application by a stranger for an authority to enter his land, and continued after it had been granted and was in force, were not lawful if they were directed to the landowner taking minerals of the kind in respect of which the authority to enter had been applied for and granted. This I consider is to misread s. 70D. I read it in the same way as it was read in this case by the learned judges of the Supreme Court - by McLelland C.J. in Eq., and by Herron C.J., Sugerman and Walsh JJ.A. in the Court of Appeal. I am strengthened in my view by their considered judgments. The section is designed I think to protect the landowner's interest in his own land and his own minerals. As Sugerman J.A. put it,

". . . the underlying policy of the legislation (and in particular of Pt IV, Div. 4A . . . ), which is to encourage and facilitate the extraction of minerals from private lands, is sufficiently served if the owner of the land himself, or somebody with his concurrence, is mining them, so as to make it unnecessary to grant a mining lease to a stranger in order to give effect to that policy." (1967) 70 SR (NSW), at p. 240; 87 W.N. (Pt 2), at pp. 235-236.

Walsh J.A., speaking to the same effect, said:

"It is to be borne in mind that the provisions of Div. 4A of Pt IV constitute a drastic invasion of the private rights of an owner of the land and of the minerals, the purpose no doubt being the encouragement in the public interest of the extraction of minerals from private lands. If that purpose is being served, there is no good reason for reading implications into the language of the Act, in order to give it a meaning still more adverse to the owner and favourable to a person who is a stranger to him." (1967) 70 SR (N.S.W.), at p. 243; 87 W.N. (Pt 2), at p. 238. (at p197)

27. The effect of the section, as I read it, is that if the owner does not mine his land he is at risk that someone else may become entitled to do so. But while he is mining he is not at risk. It was argued that the phrase "at the time when the application is made" was not to be read distributively as referring to an application for an authority to enter or an application for a lease, as the case might be. It was said that it referred only to the time of an application for an authority to enter. But, as Herron C.J. said, "the words 'and no lease' cannot be disregarded or written out of the Act" (1967) 70 SR (NSW), at p 232; 87 WN (Pt 2), at p 228 . They are there, and effect must be given to their presence. Counsel for the appellant sought to do so by saying that an application for an authority to enter was the initial step in a continuous process culminating in a lease, and that the application referred to in the section must be this initial application. (at p197)

28. But that I consider is a fallacious view. It is true that having an authority to enter is (except in cases under s. 68 or s. 70BA) a necessary antecedent to an application for a lease - just as having a miner's right is a necessary qualification for obtaining an authority to enter (s. 70A). But the holder of an authority to enter has no obligation to apply for a lease. He may do so or he may not. That someone could by obtaining an authority to enter, and doing nothing more, frustrate the landowner from mining his own minerals would defeat the policy and purpose of Div. 4A. Section 70D should not, by a forced construction, be read as producing that result.

Section 70BA. (at p197)

29. Section 70BA, which was added to the Act by the amending Act of 1963, was referred to. It was said, relying on an implication in the section, that a landowner can himself obtain a mining lease from the Crown in respect of his own land and his own minerals there; and it was therefore suggested that, unless he had such a lease, he could not prevent the grant of a lease to the holder of an authority to enter. It is noteworthy that s. 70BA has recently, 1969, been extensively amended. That does not affect any conclusion which properly emerged from it as it was when this case began. I do not think that it then supported the appellant's argument. Its terms seem to me to have been, and still to be, a bungle. It contemplates the Crown purporting to dispose of property it has already disposed of. That is the same anomaly as is involved in a "lease for mining purposes", which I have already mentioned. But here anomaly is multiplied: not only does the section contemplate the Crown disposing, by mining lease, of what it has already disposed of by grant: it contemplates a disposition, in form, to the same disponee. I leave out of account the words which were in sub-s. (1), "applied for or held or occupied for prospecting, mining or mining purposes". I am inclined to think they must refer to licenses to prospect, mining leases or leases for mining purposes, and not to authorities to enter. Whatever they mean, the section was and is odd, to say the least of it. It seems to have been moulded upon s. 68; but, as I have said, that section is obviously designed to enable a landowner to obtain a right to mine for minerals in his land which belong, not to him, but to the Crown. It ensures that he is not because he is a landowner to be in a worse position than are strangers in regard to mining Crown minerals on his land. He can obtain a mining lease in respect of such minerals there. But whoever, until 1963, heard of a landowner becoming a lessee of his own land and his own minerals? Who would be his lessor? It is said that pursuant to s. 70BC the lease would be granted by the Governor in the name and on behalf of Her Majesty. But, if a subject of the Crown holds land and minerals therein as a tenant in fee simple of the Crown, I do not see how Her Majesty can grant a lease to him of the very lands and minerals so held. In such a case a document, in accordance with sched. 43D to the Regulations, purporting to be a grant and demise by the Queen may look impressive. To me the language in such a case is graceless futility. It cannot be saved by regarding s. 70BA as elliptically operating as an implied exercise of the Crown's rights of eminent domain by a resumption of minerals which had been granted to the land-owner. The only way in which, so far as I can see, the section can be given a meaning is by disregarding its actual words and treating it as enabling the Crown to confer upon a landowner wishing to mine his own minerals all the rights which the holder of a mining lease has under the Act and to subject him to similar obligations. The section is perhaps to be treated as a clumsy expedient to produce this assimilation. In other words, the landowner can be put into the same position as a lessee for the purposes of the Act. This could no doubt be advantageous to him in some circumstances: for example if his land contained not only minerals owned by him but associated with them gold or other minerals reserved to the Crown, and perhaps if he desired to dispose of his rights to mine his minerals while retaining his ownership of the surface of the land. However, it is unnecessary to speculate about this. It is not necessary that a landowner should have a mining lease to enable him to dig his own land and take from it anything that is his, be it sand, roots, rutile or potatoes. Whatever be the effect of s. 70BA, it does not I think curtail, nor so far as I have seen is there anywhere in the Act anything which curtails, this common law right of a landowner, or which detracts from the natural meaning of s. 70D which recognizes it.

Zobel v. Croudace. (at p199)

30. I do not find it necessary to go into some other, more or less subordinate, matters in the case. So far as these were not disposed of in the course of the argument, I do no more than express general agreement in what was said of them in the Supreme Court. There is however one matter, which bulked largely in the judgments in the Supreme Court, to which I think I should refer specifically, but briefly. It is the effect of the decision of the Privy Council in Croudace v. Zobel (1899) AC 258 , affirming the decision of the Supreme Court in Zobel v. Croudace (1897) 18 LR (NSW) 306 . The statutory right of an applicant for a mining lease to have his application considered by the Crown will be recognized and enforced in appropriate proceedings: McLean v. Rowe (1925) 25 SR (NSW) 330 . But that does not mean that an authority to enter, or an application for a mining lease, of itself gives a proprietary right in the subject land which will, in all circumstances, override the rights of the landowner. I agree with the Supreme Court that Zobel's Case has no direct bearing on the question in the present case. There are in the judgments in it some dicta which, isolated from the circumstances of which they were spoken, might seem to support the appellant here. But the case must be read in the light of facts in which it occurred. The important fact is that it arose under the Act of 1894 and the amending Act of 1896 which I have mentioned above. The plaintiff complained that the owner of private land, upon which he had lawfully entered pursuant to an authority to enter, was unlawfully disturbing him in his occupation of an area which he had duly defined and of which he sought a mining lease from the Crown to mine for gold. Gold belonged to the Crown, not to the owner of the land. In its essential facts, and in relation to the statutory provisions under which it arose which related only to mining for Crown minerals, Zobel's Case was very different from the present case. (at p199)

31. I would dismiss the appeal. (at p200)

OWEN J. Since 9th August 1965 the respondent company (the company) has been mining for rutile, zircon and ilmenite (minerals which are not reserved to the Crown) on an area of land in the mining division of Murwillumbah on the North Coast of New South Wales. Portion of the land is owned by the respondent Hector James Robertson, portion by the respondent Ena Frances Robertson, portion by the respondents Frederick Charles Hughes and Jessie Hughes and the remainder by the respondent Peter James Prichard. The company's mining operations have been and are still being carried on by it under agreements made on 16th and 20th November 1962 between it and the owners. In each of three suits, which were consolidated and heard together, the appellant sought injunctions to restrain the respondents from carrying on these mining operations and what seem to me to be the relevant facts are as follows: (at p200)

2. On 2nd November 1960 the appellant applied for an authority to enter the land to search for zircon, rutile and ilmenite and, on 9th August 1965, mining operations on the land were begun by the company under the agreements made by it with the landowners in November 1962. On the same day, 9th August 1965, an inquiry under s. 51 of the Mining Act into the appellant's application for authority to enter was commenced by the mining warden and, on 13th August following, he refused to grant the application. Litigation in the Supreme Court and in this Court followed and in the result a writ of mandamus was, on 20th May 1966, directed to be issued to the warden requiring him to hear and determine the application for authority to enter according to law. It is, I think, unnecessary to set out the reasons for this decision. It is sufficient to say that it was held that in certain respects the warden had misconstrued and misapplied certain provisions of the Act relating to the grant of authorities to enter private lands and search for minerals not reserved to the Crown. Following the mandamus proceedings the warden, on 17th June 1966, resumed the inquiry and, on 20th June 1966, the appellant instituted the first of the three suits which were later consolidated. At that date whatever right, if any, the appellant had to prevent the respondents from mining for minerals of which the landowners were the owners lay in the fact that he had applied for an authority to enter the land to prospect for the minerals which were being mined by or with the concurrence of the respondent landowners. On 24th June 1966 the warden granted the appellant authority to enter the land and, on 27th June 1966, the latter instituted the second of the three consolidated suits and later on the same day applied for mining leases of the land. His right, if any, to the injunction then sought was based upon the fact that he had been granted an authority to enter. In fact he did not, at any time, enter and search for minerals under that authority to enter, no doubt because he already knew of the existence of the minerals in the land and that they were being extracted in substantial quantities by the respondent company under its agreements with the other respondents. On 30th June 1966 the appellant lodged further applications for leases of the same land for the reason, I gather, that it was thought that the earlier applications might, for technical reasons, be regarded as ineffective. (at p201)

3. In his third suit, which he instituted on 30th June 1966, the appellant relied upon the fact that, as a holder of an authority to enter the land, he had applied to be granted mining leases of it and he claimed that, until such applications were granted or refused, he was entitled to prevent the owners of the land and of the minerals therein and the company which was mining with the concurrence of those owners from taking those minerals from the land. (at p201)

4. The consolidated suits were heard by McLelland C.J. in Eq., and were dismissed by him and, on appeal to the Court of Appeal, his Honour's decision was affirmed. All the members of the Court of Appeal, Herron C.J. and Sugerman and Walsh JJ.A., were of opinion that on the true construction of s. 70D (1) of the Act, the appellant's applications for mining leases of the land could not lawfully be granted and, in the light of this fact, they considered that the suits should be dismissed. The learned Chief Judge in Equity had taken the same view and if - as their Honours thought - s. 70D (1) operated to prevent the appellant's applications for leases being granted I agree, with respect, that the relief which he sought was rightly refused. (at p201)

5. Section 70D is in Div. 4A of Pt IV of the Act. That Part deals with mining on private lands and Div. 4A, which is headed "Mining on private land held without reservation of minerals", was first introduced into the Act by Act No. 41 of 1918. It now consists of ss. 70A to 70E and since its introduction it and other provisions of the Act have been amended from time to time, sometimes by alterations of existing sections and sometimes by adding new sections. The result is a patchwork of provisions relating to mining on private lands, some of which seem to have been inserted with little regard to the existence of others. (at p201)

6. Section 70D (1) is in these terms:

"70D. (1) No authority to enter, and no lease under this Division shall be granted in respect of any land in or upon which bona fide mining operations are being carried on by or with the concurrence of the owner at the time when the application is made: Provided that in the event of any dispute arising as to whether bona fide mining operations are being carried on as aforesaid, or as to the area protected by this section, the question shall be determined by the Minister after inquiry and report by the warden and the Minister's determination shall be final."

In the Supreme Court the submissions for the appellant turned upon the words "at the time when the application is made" in the subsection. It was contended that they refer only to the time when an application for authority to enter is made and that if, at that time, no bona fide mining operations are being carried on by or with the concurrence of the owner - and that is the case here - the section presents no bar to the grant of a mining lease pursuant to an application made by the holder of the authority to enter. This argument was rejected by all the members of the Supreme Court who dealt with the case. Their Honours pointed out that the purpose of the subsection was to afford some protection to a landowner who was mining on his own land for minerals not reserved to the Crown. They held that on its true construction no authority to enter could be granted if, at the time when the application for it was made, the owner or some other person with his concurrence was carrying on bona fide mining operations and that if, after the grant of an authority to enter, the owner or some other person with his concurrence began to carry on such operations, and was carrying them on at the time when an application for a lease was made by the holder of the authority to enter, a lease could not be granted. In other words, their Honours read the words "at the time when the application is made" as meaning "at the time when the application for an authority to enter or for a lease, as the case may be, is made". On the appeal to this Court the same submission was made and a second contention was raised which does not appear to have been put before the Supreme Court. This was based upon the words "in or upon which bona fide mining operations are being carried on by or with the concurrence of the owner". In support of this second contention it was said that the rights which the Act confers upon the holder of an authority to enter, and particularly on one who has applied for a lease, are inconsistent with the notion that the owner of the land to which the authority relates or some person with his concurrence may, while the authority exists, mine the land for minerals not reserved to the Crown and that the Act must therefore be taken by implication, although not by express words, to forbid the owner to exercise, as against the holder of the authority to enter, what would otherwise be his common law rights. Accordingly it was submitted that at no time during the existence of the appellant's authority to enter could it properly be said that bona fide mining operations were being carried on by or with the concurrence of the owner. Although this argument was not directed to the submission that the words "at the time when the application is made" relate only to the time when the application for an authority to enter is made, the provisions of the Act to which counsel for the appellant directed our attention in support of what I have called the second contention are, I think, relevant in considering whether the construction placed by the Supreme Court upon s. 70D (1) was correct. (at p203)

7. Section 70A (1) provides that, "except as hereinafter provided", an authority may be granted to enter private lands and search for minerals which are not reserved to the Crown and, by s. 70A (3), an authority to enter granted under Div. 4A is to confer the like rights and privileges and entail the same obligations and penalties as are respectively prescribed by the Act in relation to authorities to enter granted under Div. 2 save that the authority holder is not required to pay any royalty to the Crown in respect of any minerals (other than minerals reserved to the Crown) won from the land included in the authority to enter. Division 2 deals with authorities to enter private lands to search for minerals reserved to the Crown and the holder of an authority to enter granted under it must pay to the landowner whatever rent and compensation is fixed by the warden in respect of the land covered by the authority (s. 51). He may construct such works and conduct such operations on and under the land as may be required for prospecting the same and may employ as many men as he thinks fit in such prospecting operations (s. 54). With the permission of the warden he may erect temporary residences on the land in such position as the warden considers proper for the use of those employed in the prospecting operations (s. 55). He may apply for a lease of the land (s. 57) in which case he may, by virtue of his application and subject to the consent of the Minister and to any conditions or restrictions imposed by the Minister, occupy for mining purposes the land applied for and mine upon and in it (s. 57 (5)). And by s. 195 it is made an offence for any owner or occupier of private land to obstruct the holder of an authority to enter in doing any act which he is by the Act authorized to do. These are, I think, the provisions upon which counsel principally relied in support of his submissions that s. 70D (1) does not debar the appellant from obtaining the relief which he seeks. (at p204)

8. It seems to me that the proper approach to the case is to begin with the fact that the owner of land has, at common law, a right to mine his own land for his own minerals and to regard s. 70D (1) as being designed to afford some protection to that right and to ensure that neither an application for authority to enter nor a lease shall be granted if the owner or some person with his concurrence is carrying on bona fide mining operations on the land for unreserved minerals at the time when the application for an authority to enter or for the lease, as the case may be, is made. In such cases the general policy of encouraging mining on private lands for unreserved minerals is being carried into effect by the activities of the owner of the land and of the minerals in it. This is the way in which I read the subsection and accordingly I agree, with respect, with the construction placed upon it in the Supreme Court. I agree also with their Honours' view that there is not to be found elsewhere in the Act sufficient to justify the conclusion that the terms of the subsection are not to be given what, on their face, appears to be their ordinary meaning but are to be read in the limited fashion for which the appellant contends. And if that is the true construction of s. 70D (1), the subsection itself provides an answer to the argument based upon the words "in or upon which bona fide mining operations are being carried on by or with the concurrence of the owner" since it contemplates that mining operations, by or with the concurrence of the owner, commenced after the grant of an authority to enter and being carried on at the time when an application for a lease is made by the authority holder, are within the words "bona fide mining operations". Finally I would add that I find it difficult to see why whatever inconsistencies there may appear to be between s. 70D (1) and the other provisions which deal with the rights of the holder of an authority to enter private lands should be reconciled by reading down the protection given by the subsection so as to fit in with those other provisions rather than by reading those other provisions in such a way as to fit in with the subsection. (at p204)

9. I would dismiss the appeal. (at p204)

Orders

Appeal dismissed with costs.