Graham & Ors on Behalf of the Ngadju People v St Ives Gold Mining Company Pty Limited & Ors [2016] HCATrans 241 (14 October 2016)

Last Updated: 18 October 2016

[2016] HCATrans 241

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P15 of 2016
No P16 of 2016

B e t w e e n -

JOHN WALTER GRAHAM AND BETTY BULLEN AND AD (DECEASED) AND OD (DECEASED) AND SONNY GRAHAM AND KATIE RAY AND GEORGINA SCHULTZ AND JACK SCHULTZ AND MABEL WILSON AND MAUREEN YOUNG ON BEHALF OF THE NGADJU PEOPLE

Applicants

and

ST IVES GOLD MINING COMPANY PTY LIMITED

First Respondent

BHP BILLITON NICKEL WEST PTY LTD

Second Respondent

PANORAMIC RESOURCES LIMITED

Third Respondent

STATE OF WESTERN AUSTRALIA

Fourth Respondent

COMMONWEALTH OF AUSTRALIA

Fifth Respondent

Applications for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 OCTOBER 2016, AT 9.29 AM

Copyright in the High Court of Australia

____________________

MR B.W. WALKER, QC: May it please the Court, I appear with my learned friend, MS T.L. JOWETT, for the applicants. (instructed by Goldfields Land and Sea Council Aboriginal Corporation)

MR N.J. YOUNG, QC: May it please the Court, I appear with my learned friend, MR D.G. MORGAN, for the first and second respondents. (instructed by Ashurst)

MR G.T.W. TANNIN, SC: May it please the Court, with MS C.I. TAGGART, I appear for the fourth respondent. (instructed by State Solicitor (WA))

GAGELER J: Yes, Mr Walker.

MR WALKER: If it please, your Honours. This is a case which, if special leave were to be granted, would provide the Court with the need to consider important aspects of the operation of an important provision in an important Act. Section 26D is one of the significant ways in which the very large statutory right under section 28 of the Native Title Act is to be disapplied. Section 28 has the effect of invalidating future Acts unless, among many other important things, there has been what might be called the right to negotiate exhausted.

Section 26D is of significance therefore because it applies in relation to rights to mine, and what I might call the right to negotiate and the invalidating effect sanctioning it is disapplied by the operation of section 26D. This is a case which, in particular, as your Honours have seen, focuses on what might be called the continuity from a pre-Native Title Act regime of the rights which constitute the mining title.

GAGELER J: So the question is not so much – well, not at all the construction of the Native Title Act, but the application of the Native Title Act given the interlocking State legislation?

MR WALKER: Yes, it is application, but no, it is not devoid of interpretive issues. There are - - -

GORDON J: What are those determinative issues in terms of construction that you say arise on the application?

MR WALKER: In terms of the reasoning of the Full Court against us, the word “rights” in the expression “no rights are created in connection with the right” is, we think, something that is interpretive. Of course it is involved in the application. As your Honours appreciate, it was the removal of restrictions - I will take the two that are the flagship ones – the restrictions as to the nature of the minerals that could be obtained, looked for and obtained, and second, the number of - I will call them renewals in a non-technical sense.

In our submission, this is a case which presents for this Court the appropriateness of determining that rights are created in connection with what I will call the new right that were not created in connection with the earlier right when restrictions that defined the content of the earlier right are removed whereby there is a right to do things – look for other minerals – there is a right to renew for longer periods than hitherto could have been done that were created.

Now, that is our application argument but it involves first overcoming the approach taken in the Full Court we think on a proper understanding whereby the removal of a restriction on a right is not to be equated with the creation of a right.

GORDON J: Does that involve a question about instruction of what is a right for this Act?

MR WALKER: Yes.

GORDON J: Where is the error in the Full Court’s analysis for those purposes?

MR WALKER: The error is not to perceive - to use the mineral identity one as the simplest one for argument - is not to perceive that a right to mine for all minerals is not different in content from a right to mine for named minerals and not then to say that if the right to mine for all the minerals other than those previously named in the restricted list, not to see that that has been created by the statutory step that is said to have produced that effect, and not to then say that that is a right created in connection with the later right.

It is for those reasons that, in our submission, both the importance of the issue in terms of the meaning of the Native Title Act, certainly as it applies, as it must under 26D, to particular regimes, the essence of 26D is to take particular regimes as they arise from time to time classically under State legislation. In our submission, what this Full Court decision and reasoning stands for is that if an earlier right is free from restrictions, then no question arises of rights being created in connection with what I will call the new right.

GAGELER J: It has to be a larger proprietary interest, does it not?

MR WALKER: The word “larger” is of course problematic. It needs to be – because of section 28 obviously there has to be this affecting and there has to be an inconsistency, and for most purposes of argument the word “larger” – others could be chosen – but the word “larger” is a good word in order to conceptualise the effect which either does or does not fall within paragraph 26D(1)(e).

GAGELER J: Yes.

MR WALKER: But of course we say ours is a classic case where, with all the caveats that I have just expressed about the word “larger” or other such words, that is exactly what this was. It used to be only those minerals. Now it is not just only those minerals. It used to be only this one or two terms and now it is indefinite succession of terms.

So, yes, this is a provision which is looking to ensure that the continuity, the protection from the right to negotiate and the major burden that that would represent, a right for the native title owners, the protection for that in relation to these Mining Acts is not to be a protection which, as it were, permits the aggrandisement in a substantive fashion of that which is the basis of the intended continuity.

GORDON J: Regardless of this argument, do you still face the hurdle that you have to identify or establish as a matter of principle that the 1968 agreement was a source of power?

MR WALKER: There is no doubt, as we have written, that that is an essential step in argument.

GORDON J: But the first step?

MR WALKER: It is, I think, logically the first step.

GORDON J: If that is not right, that is, if that is legally wrong and this question does not arise, is that the way it is put?

MR WALKER: It depends at what juncture the distinction between agreement and statute is introduced. If it is introduced at the point of considering future Acts of course, then of course contractual or statutory does not matter; it could be either. If, however, it has to do with the particular terms of the Western Australian legislation, the transitional provisions of which are at the heart of the case, as we have pointed out - we stand or fall by our success on that argument – then, in our submission, it is a point that we have to win. It is logically anterior and it is one which, with respect, has its own importance in terms of special leave.

Government agreement acts – small letters rather than capitals – are very important legislative provisions. We know there is a spectrum or at least a familiar dichotomy of the effects that might be produced by such statutes. This is a case where unquestionably, bearing in mind the powers given by the agreement given effect to by the statute for a minister to grant mining tenement, there could be no doubt that what I will call municipal law, State law, has been made in the terms of the agreement, not by the agreement as an agreement, but by the agreement as something given effect to by statute.

GORDON J: But it is not given statutory force by the Government Agreements Act.

MR WALKER: It depends what one means by “not given statutory force”.

GORDON J: Section 3 says that, does it not?

MR WALKER: No, what it is is it is given effect to and, in our submission, when a statute gives effect to a contract it is not superfluously doing that which the common law had already done.

GAGELER J: Recognising the importance of the issue, you really need to convince us that there is an arguable case that the Full Court was wrong on the construction of the Second Schedule of the 1978 Act.

MR WALKER: May I take you directly to that then? Page 361 of the application book – I am starting at 361, not 362, because, as your Honours know, we say look to section 5. The error, in answer to Justice Gageler’s question, lies in failing to appreciate the effect of section 5. In section 5 you will see that there is a concept in subsection (1) of the provisions of an Act:

that approves or ratifies any agreement to which the State is a party and under which a party to the agreement –

That means under the Act:

is authorised or required to carry out any mining operations pursuant to the agreement.

So the link between the approving or ratifying Act and the agreement and the obligations imposed are all there in subsection (1). In subsection (2) the concept is further spelled out, see paragraph (a):

the holder of an existing mining tenement under that agreement –

Mining tenements are not held as a matter of contract, as your Honours know. They are held as a matter of statute law, in this case statute law giving effect to the government agreement scheduled to it under which certain tenements can be given on terms which relevantly were different from the then existing general mining legislation. Section 5, therefore, spoke specifically to the case of all the tenements in question in this case. They fell within that description.

We then turn to the Second Schedule, next page, 362. The first thing to be observed is that this is general compared to the specific of section 5. It then refers to leases granted under the 1904 Act “in force immediately before the commencing date” and we of course submit that those opening words are utterly inapt to describe these special tenements granted under the Agreement Act and under the agreement to adapt the language of section 5, which I remind your Honours has this notion of holding a mining tenement under the agreement. That is the first argument. Clause 2 simply never bit at all.

However, one then sees that the deeming of that to be a mining lease granted under the new Act, the 1978 Act coming into effect in 1982, it is to be the difficult parenthetical phrase that comes up:

insofar as those terms and conditions and encumbrances are not inconsistent with this Act, subject to —

(a) the terms and conditions on which it was granted –

and, in our submission, those terms and conditions had the specification of the minerals that could be obtained, had the specification of the terms, et cetera, that could be granted. Thereafter, dropping down after (a) and (b), one sees that the remaining in force is for the then current term, upon which it shall expire, and obviously enough those are provisions which really cannot apply to those matters which have been saved by the operation of section 5.

Now, section 5 and clause 2 all have to be read together and, in our submission, there was therefore this two-pronged answer to the Full Court’s approach. Section 5 specifically applies and clause 2 by its opening words is inapt, in any event, to capture these leases.

GAGELER J: So that argument can be reduced to a proposition that if a mining tenement is under the agreement, it cannot also be under the 1904 Act - - -

MR WALKER: That is correct.

GAGELER J: - - - within the meaning of the 1978 Act?

MR WALKER: Yes. If one were to state those propositions, as it were, in the abstract and devoid of the necessary examination of the Government Act, it would be a puzzling proposition because the 1904 Act is called up by the agreement. But for the reasons I have put, the language of section 5 which plainly is by reference to what the legislature already knew it had authorised under the Agreement Acts plainly used the expression “a tenement held under that agreement” in contradistinction from what they intended in clause 2, because otherwise there is a mysterious mismatch between section 5 and clause 5. On any view of it, they are doing different things and we say to different classes of case.

GAGELER J: Your second point, Mr Walker, could you rearticulate that? I am not sure I fully grasped it.

MR WALKER: The second point was that, in any event, clause 2 contemplates that the terms of the lease on which it was granted in relation to in particular renewal are terms which continue, and it is for those reasons that – and they were limited terms. It is for those reasons that in 1982 these leases were not already aggrandised before 1993, which is what the whole case is about. Had the position been brought about before section 27 operated so as to mean that there were no new rights created in connection with the later grant, that which is the putative future Act - - -

GAGELER J: I think you have indicated that really your argument stands or falls on the viability of those two propositions.

MR WALKER: We have written it, we say it is the case and we have tried to focus it entirely on that and partly obviously to recognise that everything else that is the detail that we have spelled out in writing by which I will call the chain of title and the evolving administration of mining tenements in Western Australia, the detail about which I think there is virtually common ground, nonetheless simply produces this one point which is, as we say, of great significance in relation to the physical scope and the economic importance both from the native title owners’ point of view in terms of right to negotiate and from what might be called the national governmental and economic point of view that is conveyed by those words in 26D(1)(e) that this legislated compromise by which continuity is given as an answer to a right to negotiate entrenching on one of the most significant – I will call them substitutes for native title rights – that that is a limit that this Court has not looked at and, with respect, this case is an appropriate vehicle for it to be done. May it please the Court.

GAGELER J: Thank you, Mr Walker. Mr Young.

MR YOUNG: If the Court pleases. The central point identified by the applicants concerns section 26D and the right to negotiate. That provision is an appendage to a situation where you have identified a re-grant or renewal that constitutes allegedly a future Act, that is to say, you need to find a re-grant or renewal post-1996.

GAGELER J: Yes. That is why Mr Walker quite properly accepts that his argument needs to focus on the effect of the 1978 Act.

MR YOUNG: Yes, I understand. Well, before I move to the 1978 Act, can I make one point? Central to that is the transitional provision. The transitional provision only applied to 1904 Act leases that were on foot in 1982 and the provision is almost entirely spent. That is because 26D can only apply to a re-grant of such a lease. All of those leases in our case have either come to an end or have almost come to an end in 2017. That is because they all had a cumulative period of 21 plus 21 years. So the transitional provision is almost entirely spent and that is one reason for conceiving that it does not give rise to an issue of general importance. But can I move directly to the clause 2(1) issue and the issue concerning the application of section 5 as well?

GAGELER J: Yes.

MR YOUNG: What the Full Court found was that there were two suggested changes that were made by re-grants that occurred in 2004 and 2006 on the one hand, and then the termination agreement in 2008. Now, the error in relation to the first category of minerals and whether there was some expanded right in relation to minerals that took place much later than 1996, there was no issue as to whether the grant of a right in respect of new minerals would not be a right. That was not the issue. The issue in the case was that the expansion of the right in respect of minerals was effected by the 1978 Act by force of clause 2(1)(a), and that took place effectively in 1982 when this Act came into force. So, the suggested error about the interpretation of rights does not arise.

GAGELER J: I understand that. The critical issue is whether he has a viable argument as to the construction or interaction of section 5 and clause 2(1)(a).

MR YOUNG: Yes, and essentially it is an argument of inconsistency.

GAGELER J: Yes.

MR YOUNG: It does not raise any serious issue for these reasons. Can I deal firstly with clause 2(1)?

GAGELER J: Yes.

MR YOUNG: Clause 2(1) is triggered by – or applies to every gold mining lease granted under section 48 of the 1904 Act. So the critical inquiry is, were the relevant leases granted under the 1904 Act? That is beyond argument. Some of the leases in question were granted prior to the 1968 agreement, as the Full Court pointed out at paragraph 47. Secondly, clause 5(3) of the 1968 agreement itself makes that perfectly plain. Clause 5(3) is extracted at application book 371. The relevant words are opposite about – well, the second line of that passage at 371. It is:

the right to apply for and be granted by the State a mineral lease . . . under and subject to the provisions of the Mining Act –

and that is the 1904 Mining Act.

GAGELER J: Yes.

MR YOUNG: The passage continues to make it very clear that even the agreement refers to the grant as a grant under the Mining Act. There is also the point that the power to grant a mining lease must be found in statute and not solely in a State agreement that is simply ratified by an Act but not given the force of an enactment. They were the points made by the Full Court, and rightly so. But as to the inconsistency, if we can turn back to section 5 which is back at page 361, there is no inconsistency.

GORDON J: I was going to ask you that, given the opening words of – I know you are starting at 2(1), but if you go to 5(2), it has:

Notwithstanding anything in the Second Schedule - - -

MR YOUNG: Yes, of course, your Honour. Your Honour is right, and perhaps I should have started there, but clause 2(1) was described as central. But accepting the full force of those opening words, the threshold entry point for clause 2(a) of section (5) is that you have a holder of an existing mining tenement under the State agreement. Now, that is a different inquiry as to what statutory power was used to grant the lease. There is no issue but that where you have a State agreement intersecting with a power to grant a lease under the WA State legislation, in practical terms, the holding of the tenement is going to be regulated by the provisions of both.

So effectively, whether you class them as contract or some kind of extra status contract or whether you say they have statutory force, the ongoing holding of the tenement is going to be regulated both by the provisions of the State agreement and by the provisions of the Mining Act. So, all that section 5 does is that it is facultative in that it permits a party to the State agreement to continue to exercise the rights conferred by the State agreement and, to the extent relevant, by the Act.

Now, the next point is that there was no prohibition in the 1968 agreement on a statute widening the minerals referred to in the 1904 Act because if you look at the provisions of clause 5(3) again, the mineral lease in question contemplated by the agreement was a mineral lease for “nickel copper lead cobalt”, et cetera. It always remained so.

The lifting of the section 48 restriction in the 1904 Act by force of clause 2(1)(a)(i) merely broadened the minerals that could be the subject of exploration. It did not impose any restriction on the rights that were exercisable under the State agreement at all. By force of statute, it simply widened the class of minerals from that prescribed by the original 1904 Act mineral lease.

So, on that view, there is no inconsistency. Nothing in clause 5(2)(a) is inconsistent with the lifting of the restriction by force of the transitional provision that in clause 2(1)(a) in the parenthetical passage removes the terminal condition from the lease that previously restricted the lease to certain minerals. So, in short, the relevant restriction on minerals was removed by statutory force in 1982 and that removal created no inconsistency with the State agreement. All of the rights under the State agreement remained exercisable in respect of the minerals to which it applied.

So my learned friend’s proposition that your Honour Justice Gageler put to him does not hold water. The proposition – and he agreed to it – was that if there is a tenement under the agreement, it cannot also be a tenement under the Act. It can be both, and there is no inconsistency between the operation of these two provisions.

GORDON J: Well, you would go further, would you not, as I understood your submissions, to require that there had to be a tenement under the Act because that was the source of the grant?

MR YOUNG: Yes, but that is also the express terms of clause 5(3), in any event. So, with respect, the Full Court was correct in its disposition of the first issue concerning minerals. Can I then turn to the second issue that my learned friend did not explain in the same depth, if that would assist?

GAGELER J: It would actually.

MR YOUNG: This is the possibility of additional renewals.

GAGELER J: Yes.

MR YOUNG: The point – I think it is fair to say it was touched upon below, but not argued in any detail and so it is not the subject of any extensive consideration by the Full Court. Again, we submit the point is not seriously arguable. Section 26D will not be attracted unless there is a new right created in connection with a re-granted right to mine. We submit there is no difference from the earlier right because immediately after the commencement of the 1982 Act, if we turn back to clause 2(1) of the schedule at page 362, the existing lease, looking at the words at the end below paragraph (b), subject to the elimination of the restriction on minerals, was to:

remain in force for the unexpired period for which it was granted or renewed under the repealed Act, and shall then expire –

Then it goes on to confer a right in priority to any person to:

apply for a mining tenement under and in accordance with this Act –

That is the 1978 Act. So the structure of the 1904 Act was that the term of the mining lease under section 53 was 21 plus 21 years. The Court of Appeal discusses the history of the leases, but in short order they were all originally granted between 1966 and 1976 and they all went through a first renewal between 1987 and 1997, and therefore they were getting towards the end of their second 21-year period at the time of the alleged re-grants in 2004, 2006 and 2008. But the leases were on foot - they were continuing leases - up until the events of 2004-2006 and in the case of the Termination Act it did not affect the leases. There was no re-grant, as the Full Court found. They simply continued with a change in the State agreement rights.

GAGELER J: Yes.

MR YOUNG: Now, that is the background but, looking at that, what clause 2(1) did by the words at the end was to add an additional right to those leases effective in 1982, namely, a right in priority to apply for a re-grant under and in accordance with the 1978 Act. Why a re-grant? Well, because the leases were granted under the 1904 Act, they were modified by clause 2(1) in respect of minerals, but after 1982 the Act to which you had to apply for a tenement in respect of the same area would be a different Act, the 1978 Act.

But once you had exercised that right in priority, you would then get a 1978 Act which would have the rights set out in section 78(2), which is appended to our submission at 393. It is essentially the same structure as clause 2(1). There are two periods of 21 years, and then subsection (2), there is a chance to apply to the Minister by application for a further renewal. So, once you have exercised the priority right, which was exercised just before the 2004-2006 re-grants, on exercise you would get a 1978 Mining Act lease which would carry the opportunity referred to in section 78(2).

You get all of that unfolds from the very right that you have got from 1982 under clause 2(1) and that is no different than the situation that obtained in 2004-2006. You get a 1978 lease. What rights does it carry in respect of renewal? They are virtually identical to the clause 2(1) rights - two 21-year terms plus the chance for a further application.

So there is no difference in respect of the chance of further renewals. You had that chance as of 1982 under the transitional provisions, and the re-grants gave you the same corresponding right, therefore 24IC was satisfied and therefore 26D(1)(e) was satisfied.

You might add to those arguments that what 78(2) gave you was perhaps not a right; an opportunity to apply for the exercise of the Minister’s discretion. But that is perhaps neither here nor there because you got the same opportunity under the previous right to mine.

The other broad point is that the way in which the Native Title Act is structured is that renewals are governed by 24IB and 24IC. You wait for

the exercise of the right of renewal and, according to whether you can satisfy the conditions in those sections, the actual renewal will be treated as a future Act and the other provisions will attach.

GAGELER J: Yes.

MR YOUNG: That is the structure of the Act. You wait for the renewal and you apply 24IB or 24IC to it. Now, my learned friend has not touched upon it, but the argument about 2008 fails utterly for more fundamental reasons. The argument below was that the Termination Act impliedly amounted to a re-grant of the leases. The leases in question were continuing. All the Termination Act did was to ratify the changes to the State agreement, and when one looks - - -

GAGELER J: He has fairly placed the weight of his argument on the 1978 Act, I think.

MR YOUNG: He has, your Honour, I mention that for completeness. We would say as well that the general status of State agreements is not really essential to the key issues that I have described this morning. I do not need to rely upon any controversy about their precise status to resist those arguments.

GAGELER J: Yes.

MR YOUNG: So, if the Court pleases, those are our submissions.

GAGELER J: Thank you, Mr Young. Mr Tannin, do you wish to add something?

MR TANNIN: No, sir.

GAGELER J: Mr Walker.

MR WALKER: If it please the Court. Your Honours, the absence of inconsistency that my friend points to for both the terms and the cases covered by section 5 and clause 2 in the Second Schedule of the 1978 Act amounts to this, that the one subsumes the other. But there is relevantly what can be called an inconsistency or at least a difference of application, that is, different cases being covered. It can be seen by a number of phrases of which the most important is the one to which I drew attention in-chief, namely, paragraph 5(2)(a).

The party to something described as “who holds an existing mining tenement under that agreement”, that of course is one which, as I pointed out, means also under the 1904 Act. It is granted under the 1904 Act;

cannot be granted under a simple contract. But that phrase “under that agreement” means of course under the 2004 Act as modified in its application and terms by the statutory giving effect to of the agreement. That is a person who is then – who may continue, and I stress, subject to that agreement, to exercise the rights conferred by the mining tenement. “Subject to that agreement” of course contained the mineral limitations, contained the stipulated limits on renewal, without a discretion for example.

That is, to use a number of different words, inconsistent with, different from, describes a different case than what clause 2 is aimed at. It cannot be said that to say on the one hand “You may continue to exercise those rights subject to the agreement” is the same as saying “And you may exercise those rights no longer subject to that agreement insofar as it imposes restrictions”.

Now, there is no technicality about the use of the word “inconsistency”, but that is as a matter of English and law an inconsistency, a difference between two things which are speaking to the same content, “What minerals can you obtain?”, and providing different answers, opposite answers in relation to a number of minerals, that is, yes rather than no.

It is for those reasons that we have a case of statutory interpretation as to whether section 5 governs the case before the court – we say it plainly does because it describes a specific class of which these are obvious examples – or whether clause 2 which is more general and does not refer to agreements at all, just the 1904 Act unaffected by agreements and their authorising Acts, it is for those reasons, in our submission, that it is not to the point to observe, as we ourselves volunteer, that of course the agreement contemplates the grant of leases under the 1904 Act. What else could have been the subject of the notion in the agreement of a right to apply for and be granted a mining tenement under the Act?

It is for those reasons that there is, in our submission, a very respectable argument that there has been a miscuing by consigning section 5 to being in effect a dead letter, which is odd, given the specificity with which it addresses the very case that these leases presented. May it please the Court.

GAGELER J: Thank you, Mr Walker.

Notwithstanding the careful arguments put on behalf of the applicant by Mr Walker, we see no reason to doubt the correctness of the construction of the relevant Western Australian legislation arrived at by the Full Court of the Federal Court. Special leave to appeal will be refused. Costs are sought, are they?

MR YOUNG: We do not seek costs, your Honour.

MR TANNIN: Nor do we.

GAGELER J: The order of the Court is that special leave is refused.

AT 10.09 AM THE MATTERS WERE CONCLUDED