Wade v
New South Wales Rutile Mining Co Pty Ltd

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

Sydney

Judgment by:
Owen, J

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:

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.

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.

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.

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.

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.

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.

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.

I would dismiss the appeal.

W. P. Deane Q.C. (with him K. R. Handley and J. A. Moore), for the appellant.

D. L. Mahoney Q.C. (with him J. R. Gibson), for the respondents.

Solicitors for the appellant, A. E. McIntosh & Henderson.

Solicitors for the respondent, Gill Oxlade & Broad.