Newcrest Mining (WA) Ltd & Another v Commonwealth & Another

(1997) 190 CLR 513

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NEWCREST MINING (WA) LTD, BHP MINERALS LTD v COMMONWEALTH, THE DIRECTOR OF NATIONAL PARKS & WILDLIFE

Court:

Judges: Brennan CJ
Dawson
Toohey
Gaudron
McHugh
Gummow
Kirby JJ

Subject References:
CONSTITUTIONAL LAW
Validity of proclamations made under National Parks and Wildlife Conservation Act 1975 (Cth)
Whether s 51(xxxi) operates as a limitation on an exercise of the legislative power of the Commonwealth under s 122 of the Constitution.
Characterisation of a law capable of dual characterisation
Whether s 122 can be relied upon to the exclusion of s 51(xxxi) where a law is capable of dual characterisation.
Meaning of "acquisition of property" in s 51(xxxi) of the Constitution
Whether proclamation prohibiting mining effects an acquisition of mining tenements.
MINING
Validity of mining leases
Mining leases purportedly renewed under Mining Ordinance 1939 (NT) after commencement of Northern Territory (Self- Government) Act 1978 (Cth)
Whether right of renewal in existence.
Whether government approval or authority necessary for renewal of particular lease
Whether renewal effective at time of Northern Territory (Self-Government) Act 1978 (Cth).

Other References:
Constitution of the Commonwealth, ss 51(xxxi), 122.
Northern Territory (Self- Government) Act 1978 (Cth) ss 50(2), 70.
Northern Territory (Administration) Act 1910 (Cth).
National Parks and Wildlife Conservation Act 1975 (Cth).
National Parks and Wildlife Conservation Amendment Act 1987 (Cth).
Mining Ordinance 1939 (NT).
Mining Act 1980 (NT).

Judgment date: 14 AUGUST 1997

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ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court, save in so far as they allowed the appeal and dismissed the cross- appeal to that Court, and in lieu thereof:

(a)

declare that immediately prior to the proclamation made on 13 November 1989 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 78-89 was still in force;

(b)

declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), each of the mining leases MLNs 23, 25-28, 751- 756 was still in force;

(c)

declare that immediately prior to the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth), neither of the mining leases MLN 19 nor MLN 24 was any longer in force; and

(d)

order that the costs of Newcrest Mining (WA) Limited and of BHP Minerals Limited of the appeal to the Full Court and of the proceedings to date before French J be paid by the Commonwealth and the Director of National Parks and Wildlife.

3. Liberty to apply on 7 days notice.

1. In respect of the matter reserved by order of the Chief Justice made on 21 May 1996, namely the question whether the proclamations made under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) published in the Commonwealth of Australia Gazette on 12 June 1987, 22 November 1989 and 24 June 1991 are invalid by reason of s 51(xxxi) and s 122 of the Constitution of the Commonwealth:

(a)

Declare that in respect of mining leases MLNs 78-89 the proclamation made on 13 November 1989 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) was invalid to the extent that it effected acquisitions of property from Newcrest Mining (WA) Limited other than on just terms within the meaning of s 51(xxxi) of the Constitution of the Commonwealth.

(b)

Declare that in respect of mining leases MLNs 23, 25- 28, 751-756 the proclamation made on 21 June 1991 under s 7(8) of the National Parks and Wildlife Conservation Act 1975 (Cth) was invalid to the extent that it effected acquisitions of property from Newcrest Mining (WA) Limited other than on just terms within the meaning of s 51(xxxi) of the Constitution of the Commonwealth.

(c)

Order that the costs of Newcrest Mining (WA) Limited of the proceedings before the Full Court be paid by the Commonwealth and the Director of National Parks and Wildlife.

(d)

Liberty to apply on 7 days notice.