Wade v. New South Wales Rutile Mining Co Pty Ltd

121 CLR 177
[1969] HCA 619A

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(Judgment by: Barwick, CJ)

Wade v
New South Wales Rutile Mining Co Pty Ltd

Court:

Judges: Barwick, CJ
McTiernan, J
Menzies, J
Owen, J
Windeyer, J

Subject References:
Primary industry
Mining on private lands
Authority to enter
Common law rights

Legislative References: - Mining Act 1906 (NSW) 70D

Hearing date: 24 March 1969 & 25 March 1969 & 26 March 1969 & 19 June 1969
Judgment date: 19 June 1969

Sydney

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Judgment by:
Barwick, CJ

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.

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.

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.