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Federal Court of Australia |
MINES AND MINERALS - mining leases in prescribed substances - Northern Territory - mining lease granted pursuant to Mining Act 1980 (NT) - effect of transition to self-government - whether entitlement to mine, recover and remove prescribed substances could only be granted by the Commonwealth under the Atomic Energy Act 1953 (Cth) - effect of Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and Northern Territory (Self-Government) Act 1978 (Cth) ss 6, 69, 70 - whether the Mining Act 1980 (NT) was capable of operating concurrently with the Atomic Energy Act 1953 (Cth).
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 3, 4, 10, 11, 12, 23, 40, 41, 43, 44, 45, 46, 47.
Aboriginal Land Rights (Northern Territory) Amendment Act (No 3) 1987 (Cth).
Atomic Energy (Control of Materials) Act 1946 (Cth), ss 3, 6, 13A.
Atomic Energy (Control of Materials) Act 1952 (Cth).
Atomic Energy Act 1953 (Cth), ss 5, 17, 34, 38, 39, 40, 41.
Atomic Energy Amendment Act 1978 (Cth), s 9.
Atomic Energy Amendment Act (No 2) 1978 (Cth).
Customs (Prohibited Exports) Regulations, reg 11.
Environmental Protection (Impact of Proposals) Act 1976 (Cth), s 11.
Judiciary Act 1903 (Cth).
Mining Act 1980 (NT), ss 3, 4, 54F, 60, 175.
Mining Act (No 4) 1978 (NT), ss 4, 10.
Mining Ordinance 1939, ss 3, 7A.
Mining Ordinance (No 2) 1953.
Northern Territory Acceptance Act 1910 (Cth), s 7.
Northern Territory (Administration) Act 1910 (Cth), ss 13, 21.
Northern Territory (Administration) Act 1947 (Cth).
Northern Territory (Self-Government) Act 1978 (Cth), ss 6, 7, 8, 9, 32, 35, 57, 69, 70.
Northern Territory (Self-Government) Regulations, reg 4.
Trade Practices Act 1974 (Cth), s 75.
Attorney-General for the Northern Territory v Hand (1989) 25 FCR 345 (FCA/FC), cited.
Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166, cited.
Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248, cited.
The Commonwealth v Bogle [1953] HCA 10; (1953) 89 CLR 229, cited.
The Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167 (FCA/FC), cited.
The Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, cited.
Cudgeon Rutile (No 2) Pty Ltd v Chalk [1975] AC 220, considered.
Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274 (FCA/FC), cited.
Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346, cited.
Newcrest Mining (WA) Ltd v The Commonwealth [1993] FCA 528; (1993) 46 FCR 342, cited.
Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1, cited.
Northern Land Council v The Commonwealth (No 2) [1987] HCA 52; (1987) 61 ALJR 616, cited.
The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34; (1977) 137 CLR 545, cited.
The Queen v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395, cited.
R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, cited.
Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 71 ALJR 1254, cited.
Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548, cited.
Wake v Northern Territory (1996) 109 NTR 1 (S Ct NT/FC), cited.
Webster v McIntosh [1980] FCA 128; (1980) 49 FLR 317 (FCA/FC), cited.
Williams v Attorney-General [1913] HCA 33; (1913) 16 CLR 404, cited.
YVONNE MARGARULA v MINISTER FOR RESOURCES AND ENERGY & ORS
NG 448 of 1997
SACKVILLE J
SYDNEY
11 FEBRUARY, 1998
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 448 of 1997 |
|
BETWEEN: | YVONNE MARGARULA
Applicant |
|
AND: | MINISTER FOR RESOURCES AND ENERGY
First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
ENERGY RESOURCES OF AUSTRALIA LIMITED Third Respondent
NORTHERN TERRITORY OF AUSTRALIA Fourth Respondent |
|
JUDGE: | SACKVILLE J |
| DATE OF ORDER: | 11 FEBRUARY 1998 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The matter be stood over for seven days.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA | |
| NEW SOUTH WALES DISTRICT REGISTRY | NG 448 of 1997 |
|
BETWEEN: | YVONNE MARGARULA
Applicant |
|
AND: | MINISTER FOR RESOURCES AND ENERGY
First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
ENERGY RESOURCES OF AUSTRALIA LIMITED Third Respondent
NORTHERN TERRITORY OF AUSTRALIA Fourth Respondent |
JUDGE:
SACKVILLE J DATE: 11 FEBRUARY 1998 PLACE: SYDNEY
These proceedings concern the validity of a mineral lease granted in 1982 by the Northern Territory of Australia, to permit the exploitation of deposits of uranium ore. The deposits are located at Jabiluka, about twenty kilometres north of Jabilu and twelve kilometres west of the boundary of the Arnheim Land Aboriginal Reserve. Although proposals have been in existence for the exploitation of these deposits for well over twenty years, and the lease was granted over fifteen years ago, it appears that no mining operations have yet been conducted at the site. (Background information concerning the Jabiluka deposits and proposals for their exploitation are contained in the Second Report of the Ranger Uranium Environmental Inquiry (AGPS 1977) (the "Second Ranger Report"), at 161-164).
The applicant, who claims to be the principal custodian by Aboriginal tradition of the land at Jabiluka, seeks declaratory relief against four respondents, namely, the Minister for Resources and Energy ("the Minister"), the Commonwealth, Energy Resources of Australia Ltd ("ERA") and the Northern Territory. The applicant seeks two forms of relief:
* an order prohibiting the Minister from granting approval to ERA, pursuant to reg 11 of the Customs (Prohibited Exports) Regulations, to export minerals, including uranium, mined from land held by the Jabiluka Aboriginal Land Trust at Jabiluka, which is included in the lease; and
* a declaration that the Commonwealth is the owner of uranium and other "prescribed substances" as defined in the Atomic Energy Act 1953 (Cth) (the "Atomic Energy Act") within land at Jabiluka, identified in the application as NT Portion 2253, and that the Commonwealth has granted no valid interest to any person in respect of the uranium.
The substance of the applicant's case is that the lease of uranium and other prescribed substances, granted by the Northern Territory to ERA's predecessors in title in 1982, is void and of no effect. The applicant's pleaded case is that neither the Northern Territory, nor the Minister, had any valid authority under the Atomic Energy Act 1976 or any other law of the Commonwealth, at the date of the execution of the lease, nor at any time since, to execute the purported lease, nor to grant to any person any entitlement to mine and remove the uranium from the land comprised within NT Portion 2253. That land constitutes the bulk of the land included in the lease.
The fee simple estate in the land comprised within NT Portion 2253 is vested in the Jabiluka Aboriginal Land Trust and is "Aboriginal land" within the Aboriginal Land Rights (Northern Territory) Act (Cth) (the "Land Rights Act"). This land, which comprises about 6,758 hectares, was granted by the Governor-General to the Jabiluka Aboriginal Land Trust on 25 June 1982. I shall refer to it as the "Jabiluka Trust Land". I shall refer to the larger area of land included in the lease (a total of about 7,275 hectares) as the "Jabiluka Project Land". I shall refer to the lease as the "Jabiluka Project Lease" or, more simply, the "Lease".
I was informed by counsel that the Jabiluka Project Land is surrounded by what is now the Kakadu National Park, but does not constitute part of the Park itself. No issue arises in this case as to the operation of the legislation and instruments creating and expanding the boundaries of the Park.
In its defence, ERA pleads, inter alia, that the applicant is estopped from denying the validity of the Jabiluka Project Lease. An order made by another Judge of the Court, on 22 August 1997, provides that the questions raised by this paragraph of ERA's defence (designated as the "Estoppel Questions"), to be determined separately and after trial of all other questions in the proceedings. Other orders made on that occasion noted the agreement of the parties that the questions for determination in the proceedings, other than the Estoppel Questions, are limited to the following:
"(a) Whether the entitlement to mine, recover and remove prescribed substances from NT Portion 2253 [the Jabiluka Trust Land] could only be granted by the Commonwealth of Australia under the Atomic Energy Act 1953 (Cth).
(b) Whether the Mining Act 1980 (NT) was a law of the Northern Territory of Australia capable of operating concurrently with the Atomic Energy Act so as to entitle the Minister for Mines and Energy of the Northern Territory of Australia to grant a lease of and a right to mine prescribed substances.
(c) Whether the Atomic Energy Act as in force on 12 August 1982 on its true construction excluded the operation of a law of a Commonwealth Territory purporting to grant or authorise the grant of a leasehold mining interest in uranium or other `prescribed substance' within the meaning of that Act, in such a Territory.
(d) Whether the Northern Territory of Australia was entitled to grant a lease conveying a proprietary interest in prescribed substances within the [Jabiluka Trust Land] which are the property of the Commonwealth of Australia and not the property of the Northern Territory of Australia.
(e) Whether the Northern Territory (Self-Government) Act 1978 (Cth) on its true construction conferred legislative power on the Legislative Assembly of the Northern Territory with the assent as provided by that Act to enact legislation enabling or authorising the grant of a leasehold mining interest in uranium or other prescribed substance in the Northern Territory.
(f) Whether the Northern Territory (Self-Government) Act 1978 (Cth) and the Northern Territory (Self-Government) Regulations on their true construction enabled the conferral of executive authority on the Minister for Mines and Energy of the Northern Territory to grant the Mineral Lease ML N1 dated 12 August 1982 in the circumstances set forth in paragraphs 17 to 20 inclusive of the Defence of [the Minister and the Commonwealth] and sub-paragraphs 5.6 to 5.9 inclusive of [ERA's] Defence.
(g) If the answer to question 2(f) is yes, whether such executive authority was conferred in the circumstances set forth in [those] paragraphs.
The written and oral submissions in the proceedings were not framed explicitly by reference to the series of questions identified in the orders of 22 August 1997. However, the issues raised by these questions were, in substance, addressed in the submissions.
None of the submissions explicitly referred to reg 11 of the Customs (Prohibited Exports) Regulations or to the Administrative Procedures under the Environmental Protection (Impact of Proposals) Act 1974 (Cth). The latter impose requirements which must be satisfied if an approval is to be granted under reg 11. The applicant pleaded that the Minister has no power or authority to grant to ERA an approval in writing to export from Australia uranium which is vested in the Commonwealth, and to which ERA has no lawful right, title or interest. This allegation was denied by each of the respondents, but the pleadings did not make it clear whether the denial was intended to raise any issue other than the validity of the Jabiluka Project Lease. In any event, no further argument was put in relation to the order sought by the applicant prohibiting the Minister from granting approval under reg 11.
The Minister, the Commonwealth and ERA admitted in their respective pleadings that the applicant is a member of a community or group of Aboriginals of local descent having spiritual affiliations to the Jabiluka Trust Land, and is entitled by Aboriginal tradition to forage as of right over that land. The Northern Territory did not admit the applicant's claim to be the principal custodian by Aboriginal tradition of the land. Despite the different form of the defences, none of the respondents challenged the standing of the applicant to seek the relief to which I have referred.
The Minister and the Commonwealth apparently considered that a constitutional issue might arise concerning the executive power of the Commonwealth or the legislative and executive power of the Northern Territory. For this reason, they gave notice of a constitutional matter to the Attorneys-General of the State, pursuant to the Judiciary Act 1903 (Cth). In any event, none of the Attorneys-General of the States wished to intervene in or participate in the proceedings.
THE LEASE
By a mineral lease dated 12 August 1982, the Northern Territory granted to Pancontinental Mining Ltd ("Pancontinental") and Getty Oil Development Co Ltd ("Getty") the Lease of the Jabiluka Project Land comprising, as I have said, about 7,275 hectares, of which about 6,758 hectares is the Jabiluka Trust Land.
The Jabiluka Project Lease is expressed to be granted pursuant to the Mining Act 1980 (NT) (the "Mining Act 1980"), which commenced operation on 1 July 1982. It was executed by the lessees and by the then Territory Minister for Mines and Energy "for and on behalf of the Territory". The Lease includes a grant expressed in the following terms:
"ALL THOSE mines and deposits of uranium ore and other prescribed substances together with the minerals associated or combined therewith so that they must necessarily be mined in the mining of any such uranium ore or other prescribed substances in or under the leased land, together with the rights, liberties, easements, advantages and appurtenances thereto belonging or appertaining, EXCEPTING AND RESERVING out of this lease the rights of ingress, egress and regress hereinafter. ...for the term of forty-two (42) years from the date hereof for the purpose of mining thereon for uranium ore and other prescribed substances."
The expression "prescribed substance" is defined to mean a prescribed substance within the meaning of the Atomic Energy Act 1946 : Jabiluka Project Lease, cl 7(a). In view of the definition of "prescribed substance" in s 5(1) of the Atomic Energy Act, the expression includes uranium, any element having an atomic number greater than 92 and any other substance declared by the regulations to be capable of being used for the production of atomic energy. The Lease is renewable for a further term not exceeding ten years: cl 2.
The lessees are obliged to pay the rent and royalties reserved by the Lease: cl 1(a). Rental is payable yearly at the rate provided from time to time by the Mining Act 1980 and the regulations made thereunder: cl 4(a). Royalties are payable on the value of uranium and other prescribed substances obtained from the leased land at rates specified in the Fourth Schedule: cl 4(b). The Fourth Schedule provides a formula for a royalty payable by the lessees "for so long as ownership of uranium and other prescribed substances is vested in the Commonwealth": Fourth Schedule, cl 1(a). The formula contemplates that, after 30 June 1990, the rate payable to the Commonwealth is to be that determined by the Commonwealth Minister administering s 41 of the Atomic Energy Act: Fourth Schedule, cl 1(a), (c). A different royalty is provided for "in the event of the vesting of ownership of uranium and other prescribed substances in the Northern Territory": Fourth Schedule, cl 1(b).
By agreement dated 6 August 1991, Pancontinental and two other parties (but not Getty) assigned their interest in certain assets, including the Lease, to ERA. This agreement appears not to be referred to in the pleadings and it is not entirely clear how Getty's interest in the Lease vested in the assignors, although the agreement refers to an option agreement to which Getty was a party. In any event, there seemed to be no dispute that the 1991 agreement was effective to vest the benefit of the Lease (assuming it to be valid) in ERA. The case was conducted on this basis.
I shall set out later the factual background to the Lease. However, it is first necessary to deal with the complex and interlocking legislation around which the argument revolved.
LEGISLATION
The 1946 Act
The Atomic Energy (Control of Materials) Act (Cth) (the " 1946 Act 1953 ") was inspired, to some extent at least, by the establishment of the United Nations Atomic Energy Commission and the simultaneous enactment of atomic energy control legislation in other countries, including Great Britain and the United States: see the second reading speech on the Atomic Energy Bill, Cth Parl Deb, HR, 19 March 1953, at 1390.
The purpose of the 1946 Act 1946 , which came into force on 11 September 1946, according to its long title, was
"to make provision, in the interests of the Defence of the Commonwealth, for the Control of Materials which are or may be used in producing Atomic Energy...".
Section 6 of the Act 1946 was as follows:
"6(1) All prescribed substances existing in their natural condition, or in a deposit of waste material obtained, from any underground or surface working, on or below the surface of any land in any Territory of the Commonwealth, whether alienated from the Crown or not, and, if alienated, whether alienated before or after the commencement of this Act, are hereby declared to be the property of the Commonwealth.
(2) The title of the Commonwealth to any prescribed substance under sub-section (1) of this section shall be subject to any rights granted after the commencement of this Act, by or under the law of any Territory of the Commonwealth, with express reference to the prescribed substance, but to no other rights."
The expression "prescribed substance" was defined in s 3 of the Act 1946 to mean:
"uranium, thorium, plutonium, neptunium or any of their respective compounds, and includes any other substance (being a substance which, in the opinion of the Minister, is or may be used for the production or use of atomic energy or research into matters connected with atomic energy) which is declared by the Minister, by order published in the Gazette, to be a prescribed substance for the purposes of this Act."
Sections 8 to 11 of the Act 1946 gave the Minister powers to obtain information, prohibit the mining of prescribed substances and require the delivery up of prescribed substances. Section 12 empowered the Minister to, where he or she considered it necessary in the interests of the defence of the Commonwealth, to acquire all prescribed substances on or under any land. Section 13 empowered the Minister, where any minerals from which a prescribed substance could be obtained were present on or under land, to make an order compulsorily vesting in the Commonwealth the exclusive right to work those minerals. Section 14 of the Act 1946 made the Commonwealth liable to pay compensation to any person who had title to or an interest in prescribed substances that had been acquired by the Commonwealth by virtue of the Act.
The Act 1952 was amended by the Atomic Energy (Control of Materials) Act (Cth). The most important amendment inserted s 13A into the legislation. It provided as follows:
"13A(1) Where it appears to the Minister that any prescribed substances, or any minerals from which, in the opinion of the Minister, any prescribed substances can be obtained, are present on or under the whole or a part of an area of land in a Territory of the Commonwealth, either in a natural state or in a deposit of waste material obtained from any underground or surface working, the Minister may, by writing under his hand, authorise a person to carry on, on behalf of the Commonwealth, operations in accordance with this section on that land."
Section 13A(2) specified the activities that could be undertaken pursuant to an authority granted under s 13A(1). Section 13A was the forerunner to s 41 of the Atomic Energy Act, which was the focus of considerable argument in the present case.
The 1946 Act 1978 was repealed by the Atomic Energy Act, which came into force on 15 April 1953. According to the Minister's second reading speech, the legislation was made necessary because of important discoveries of uranium-bearing ores, especially in the Northern Territory and
"by the Government's determination that those deposits shall be vigorously and promptly exploited for the defence of Australia and its allies, and also ultimately for industrial and other purposes."
Cth Parl Deb, HR, 19 March 1953, at 1390. At the time the Atomic Energy Act was enacted, an agreement had already been entered into between the Commonwealth Government and a company, Consolidated Zinc Pty Ltd, for the development of a site containing uranium at Rum Jungle in the Northern Territory: id at 1391.
The Atomic Energy Act has been amended from time to time, most notably for present purposes in 1978. The provisions I extract and refer to in this part of the judgment reflect the form of the Act in August 1982, the time at which the Jabiluka Project Lease was executed. Where I refer to the legislation in its original form, I say so.
The Atomic Energy Act established the Australian Atomic Energy Commission: s 8. The functions of the Commission included the following (s 17(1)):
"(a) to undertake, or arrange for or encourage other authorities or persons to undertake, exploration for, and mining and treatment of, uranium and minerals found in association with uranium;
(b) to supervise the activities of persons who, in pursuance of contracts with the Commonwealth, are exploring for, mining, treating or selling uranium, or minerals found in association with uranium, and to exercise the rights and powers of the Commonwealth under any such contract;
(c) to co-operate with the appropriate authorities of a State in matters associated with -
(i) the discovery and mining in the State of uranium and minerals found in association with uranium; or
(ii) the treatment, use or disposal of uranium, or of any such mineral, found in the State."
The functions of the Commission were to be exercised only for the purposes specified in s 17(4). These included ensuring the provision of uranium or atomic energy for the defence of the Commonwealth or for any other purpose of the Commonwealth and the provision of uranium to other countries.
Section 34(1) of the Atomic Energy Act required the powers conferred by Part 3 (ss 34-43) to be exercised only for the purposes specified. These purposes reflected various heads of Commonwealth legislative power under the Constitution and included purposes related to the defence of the Commonwealth (s 34(1)(a)), overseas and interstate trade (s 34(1) (b),(c)) and external affairs (s 34(1)(d)). In addition, the powers could be exercised
"(f) in relation to substances situated in or recovered from, or things done or proposed to be done in or in connection with, a Territory".
Section 34(1)(f) invoked the Parliament's power under s 122 of the Constitution, to make laws for the government of a Territory.
In its original form, s 34 had provided that the powers conferred by Part 3 were to be exercised for defence purposes or in relation to substances situated or things to be done in a Territory. The invocation of the broader range of Commonwealth heads of power was effected by the Atomic Energy Amendment Act (Cth), s 9, which substituted a new s 34 in the principal Act.
Section 35 of the Atomic Energy Act 1946 was the counterpart to s 6 of the Act 1946 and provided as follows:
"35(1) This section applies to substances which, on or after the commencement of the Act, are prescribed substances existing in their natural condition, or in a deposit of waste material obtained from an underground or surface working, on or below the surface of land in a Territory, whether alienated from the Crown or not and, if alienated, whether alienated before or after the commencement of this Act.
(2) A substance to which this section applies which -
(a) is a prescribed substance at the commencement of this Act; and
(b) was not the property of the Commonwealth immediately before 11 September 1946 (being the date of commencement of the Atomic Energy (Control of Materials) Act 1946),
is declared to have become the property of the Commonwealth on that date.
(3) A substance to which this section applies which -
(a) becomes a prescribed substance after the commencement of this Act; and
(b) is not, immediately before the date on which it becomes a prescribed substance, the property of the Commonwealth,
becomes, by force of this Act, the property of the Commonwealth on that date.
(4) The title of the Commonwealth to any substance to which this section applies is subject to any rights granted after 10 September 1946 by or under the law of a Territory, with express reference to that substance, but to no other rights."
The definition of "prescribed substance" in s 5(1) of the Atomic Energy Act (as amended in 1978) was similar, but not identical, to that in the Act 1978 :
"`Prescribed substance' means -
(a) uranium, thorium, an element having an atomic number greater than 92 or any other substance declared by the regulations to be capable of being used for the production of atomic energy or for research into matters connected with atomic energy; and
(b) any derivative or compound of a substance to which paragraph (a) applies."
Section 36 required a person who discovered a prescribed substance anywhere in Australia to notify the Minister and s 37 empowered the Minister to require persons to furnish information as to prescribed substances in their possession. Section 38 conferred a power to make regulations, inter alia, prohibiting (except under a licence), regulating or controlling the working of minerals from which a prescribed substance could be obtained, or the production or processing of a prescribed substance. Section 38(3) empowered the Minister to grant or refuse a licence for the purposes of the section. Section 38(4) was as follows:
"(4) Notwithstanding the provisions of section 34, where a person applies for a licence under this section in respect of anything proposed to be done in a State, the Minister shall grant the licence unless he considers it necessary or desirable for a purpose referred to in paragraph (a), (b) or (d) of sub-section (1) of section 34 to refuse to grant the licence."
Section 39 empowered the Minister to authorise a person to enter lands on or under which prescribed substances are reasonably thought to exist, for the purpose of making tests and extracting samples. Section 40 authorised the Minister to require a person who has a prescribed substance in his or her possession to deliver up the substance.
Section 41 is of importance in this case. It provided as follows:
"41(1) Subject to sub-section (2B), where it appears to the Minister that a prescribed substance, or minerals from which, in the opinion of the Minister, a prescribed substance can be obtained, is or are present on or under the whole or a part of an area of land, either in a natural state or in a deposit of waste material obtained from an underground or surface working, the Minister may, by writing under his hand, authorise a person, or 2 or more persons engaged in a joint venture, to carry on, on behalf of or in association with the Commonwealth, operations in accordance with this section on that land.
(2) Subject to any conditions or restrictions specified in the authority, the person so authorised in relation to any land may -
(a) enter upon that land, with such workmen and other persons as he thinks fit, and bring on to that land such machinery, vehicles and other things as he thinks fit;
(b) take possession of the whole or a part of that land;
(c) carry on, upon or under that land, operations for discovering prescribed substances, and for mining, recovering, treating and processing prescribed substances and such other minerals as it is necessary or convenient to mine or recover in order to obtain prescribed substances;
...
(g) do all such other things as are necessary or convenient for the effectual exercise of the powers specified in the preceding paragraphs of this sub-section.
...
(2B) The Minister shall not confer an authority under sub-section (1) in relation to land in a State without the consent of the Government of that State unless that authority is conferred for a purpose that is, or purposes each of which is, related only to the defence of the Commonwealth.
(3) All prescribed substances and minerals mined or otherwise recovered in pursuance of an authority under this section that are not otherwise the property of the Commonwealth are, by force of this section, vested in the Commonwealth.
(4) Except as provided by the regulations, this section shall not be construed as intended to exclude or limit the operation of any provision of a law of a State or Territory that is capable of operating concurrently with this section."
The bolded words in s 41(1) were added by amendments in 1978, and s 41(4) was added in the same year: Atomic Energy Amendment Act (Cth), s 11(a), (c); Atomic Energy Amendment Act (No 2) 1978 (Cth), s 4(a).
As I have already indicated, the precursor to s 41 of the Atomic Energy Act 1946 was s 13A of the Act. However, there were two major differences between the provisions. First, s 13A(1) was confined to operations in a Territory, while s 41(1) extended to operations in both States and Territories. Secondly, s 41(3), which vested property in the Commonwealth in prescribed substances recovered under an authority, had no equivalent in s 13A.
Section 41A, which was added to the legislation in 1978, provided that, subject to ss 41B and 41C, an authority granted under s 41 was not to be varied or revoked otherwise than under and in accordance with s 41A itself. Revocation could take place, for example, where the person in whom authority was conferred applied for revocation, or where that person failed to comply with a condition to which the authority was subject: s 41A(2), (4). In exercising the powers under s 41A, the Minister was not to act in a manner inconsistent with the obligations of the Commonwealth under any agreement entered into under ss 44 and 46 of the Land Rights Act 1987 : s 41A(8).
The Commonwealth was liable to pay compensation where any prescribed substance was acquired by the Commonwealth by virtue of Part 3 or where a person suffered loss or damage by reason of anything done in pursuance of ss 39-41: s 42.
The Lands Rights Act
The Land Rights Act commenced on 26 January 1977. It defined "Aboriginal land" to include "land held by [an Aboriginal] Land Trust for an estate in fee simple": s 3(1). That definition applied to the Jabiluka Trust Land and it is therefore necessary to consider the effect of the Land Rights Act in the present case. The following outline of the Land Rights Act relates, unless otherwise stated, to the legislation as it stood at the date the Jabiluka Project Lease was executed.
The Land Rights Act provided for the establishment of Aboriginal Land Trusts, to hold title to land in the Northern Territory for the benefit of Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned: s 4. The Land Rights Act identified certain tracts of land in respect of which the Minister was required to recommend to the Governor-General that a fee simple grant be made to a Land Trust: s 10. The Minister was also required, subject to certain conditions, to grant land to a Land Trust where it was recommended by the Aboriginal Lands Commissioner in a report, that such a grant should be made: s 11. A deed of grant to a Land Trust had to be expressed to be subject to a reservation that the right to any minerals existing in their natural condition or in a deposit of waste material from any underground or surface working, being minerals all interests in which were vested in the Commonwealth, were to remain with the Commonwealth: s 12. A Land Trust was subject to the supervision of the Land Council for the relevant area in relation to the Land Trust's holding of Aboriginal land: s 23(1)(h).
Part 4 of the Land Rights Act dealt with mining interests and operations. (Part 4 was repealed and replaced by a new Part 4 by the Aboriginal Land Rights (Northern Territory) Amendment Act (No 3) (Cth).) A mining interest in respect of Aboriginal land could not be granted unless both the Minister and the Land Council for the area consented to the making of the grant (s 40(1)(a)), or the Governor-General had declared that the national interest required that the grant be made (s 40(1)(b)). A "mining interest" meant any lease or other interest in land granted under a law of the Northern Territory relating to mining for minerals: s 3(1).
Section 41 addressed the application of the Atomic Energy Act 1910 to Aboriginal land. Section 41(1) provided as follows:
"41(1) The Atomic Energy Act 1953 or any other Act authorising mining for minerals does not apply in relation to land that is Aboriginal land so as to authorise the entry or remaining of a person on the land or the doing of any act by a person on the land unless -
(a) the Governor-General has, by Proclamation, declared that both the Minister and the Land Council for the area in which the land is situated have consented to the application of that Act in relation to entry on that land; or
(b) the Governor-General has, by Proclamation, declared that the national interest requires the application of that Act in relation to entry on that land."
Section 43(1) provided that a Land Council could agree with an applicant for a mining interest in respect of Aboriginal land for the giving of consent by the Land Council in return for agreed payments. Where by virtue (inter alia) of a proclamation made by the Governor-General under s 40(1)(b) a mining interest in respect of Aboriginal land could be granted without the consent of the Land Council for the relevant area, the mining interest was not to be granted unless the applicant for that interest had entered into an agreement with the Land Council: s 43(2). The agreement was to contain such terms and conditions as the parties might agree, having regard to the effect of the grant of the mining interest on Aboriginals. The terms and conditions could include a requirement that moneys be paid to the Council.
Section 44(1) provided that a Land Council could agree with the Commonwealth for the giving of the Council's consent to the application of the Atomic Energy Act to Aboriginal land, in consideration of agreed payments and subject to any other terms and conditions as were provided for in the agreement. If a proclamation were made under s 41(1)(b), without the consent of the relevant Land Council, the Land Rights Act did not authorise any act on the Aboriginal land unless an agreement was entered into between the Commonwealth and the Land Council providing for the payment of agreed amounts to the Council and containing such other terms and conditions as might be agreed: s 44(2). A Land Council was not permitted, without the approval of the Minister, to enter into a contract involving the payment or receipt of an amount exceeding $50,000: s 27(3).
Where the Minister was satisfied that a Land Council was unwilling to give its consent to the grant of a mining interest because the applicant for the grant would not agree to the consideration proposed by the Council, the Minister could appoint an arbitrator to determine the terms and conditions of the agreement that should have been acceptable to the Council: s 45(1). The Land Council was obliged to enter an agreement with the applicant on the terms and conditions specified by the arbitrator: s 45(2).
Section 46(1) established an arbitral mechanism in relation to the agreement contemplated by s 43(2) and s 44(2) of the Land Rights Act. The sub-section was as follows:
"46(1) Where the Minister is satisfied that -
(a) a Land Council has refused, or is unwilling, to negotiate with respect to the terms and conditions of an agreement required by sub-section 43(2) and 44(2); or
(b) the Land Council and the applicant for the relevant mining interest or the Commonwealth, as the case may be, cannot agree on the terms and conditions of the agreement,
the Minister may, after consultation with the Land Council and, where appropriate with the applicant for the grant, appoint an Arbitrator, being a person whom the Minister considers to be in a position to deal with the matter impartially, to determine the terms and conditions of the agreement...".
Section 74 of the Land Rights Act provided that the Act did not affect the application to Aboriginal land of a law of the Northern Territory to the extent that the law was capable of operating concurrently with the Act.
The Self-Government Act
Before 1 January 1911, what is now the Northern Territory was part of the State of South Australia. By the Northern Territory Acceptance Act (Cth), (the "Acceptance Act"), which commenced on 1 January 1911, the Northern Territory was surrendered by South Australia and the surrender was accepted by the Commonwealth, a course contemplated by ss 111 and 122 of the Constitution. The Acceptance Act 1910 continued all laws in force at the time of acceptance but provided that they could be altered or repealed under a law of the Commonwealth: Acceptance Act, s 7. It also provided that all estates and interests held by any person from South Australia within the Northern Territory at the time of acceptance would continue to be held from the Commonwealth on the same terms and conditions as they were held from the State: s 10.
The Northern Territory (Administration) Act (Cth) (the "Administration Act") provided for the appointment by the Governor-General of an Administrator for the Territory: s 4. In its original form, s 13 of the Administration Act 1947 empowered the Governor-General to make ordinances having the force of law in the Territory. This was later repealed and, in 1931, s 21 was inserted into the Act, providing for the making of ordinances having the force of law in the Territory. Section 21 itself was repealed in 1947, with the creation of the Legislative Council for the Territory: Administration Act, s 4B, inserted by the Northern Territory (Administration) Act (Cth). Section 21 provided the foundation for the Mining Ordinance, as originally enacted, to which I refer later: Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 71 ALJR 1346, at 1399, per Gummow J.
The purpose of the Northern Territory (Self-Government) Act 1978 (Cth) (the "Self-Government Act 1982 "), as stated in the recitals, is
"to confer self-government on the Territory, and for that purpose to provide, among other things, for the establishment of separate political, representative and administrative institutions in the Territory and to give the Territory control over its own Treasury."
The Self-Government Act, most provisions of which came into force on 1 July 1978, established the Northern Territory as a body politic under the Crown, by the name of the Northern Territory of Australia: s 5. The Act created the Legislative Assembly of the Northern Territory and conferred powers upon it as follows (s 6):
"6. Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General, as provided by this Act, to make laws for the peace, order and good government of the Territory."
While the grant of power under s 6 is in wide terms, the Legislative Assembly is subject to certain constraints. Every proposed law passed by the Legislative Assembly must be presented to the Administrator for assent: s 7(1). The Administrator is appointed by the Governor-General and is charged with the duty of administering the government of the Territory: s 32(1), (2). The Administrator is to exercise and perform all powers and functions, except (relevantly) for those relating to matters specified in s 35, in accordance with such instructions as are given by the Commonwealth Minister: s 32(3). If the proposed law makes provision only for or in relation to a matter specified under s 35 (that is, a matter in respect of which Territory Ministers have executive authority), the Administrator must declare either that he or she assents or withholds assent to the proposed law: s 7(2). In any other case, the Administrator must either assent, withhold assent or reserve the proposed law for the Governor-General's pleasure, in which case the Governor-General must assent or withhold assent to the proposed law, or return the proposed law with any amendments that he or she recommends: s 8.
The Governor-General also has power, within six months of the Administrator's assent to a proposed law, to disallow the law or part of the law or to recommend to the Administrator any amendments to the laws of the Territory he or she considers desirable: s 9(1), (2). If the Governor-General recommends such amendments, the time within which a law may be disallowed is extended until the expiration of six months from the date of the recommendation: s 9(3).
Section 35 of the Self-Government Act provides that the regulations "may specify the matters in respect of which the Ministers of the Territory are to have executive authority". The power conferred by s 35 was exercised in the Northern Territory (Self-Government) Regulations (No 102 of 1978), (the "Self-Government Regulations") which came into force on 1 July 1978. They were later amended and, as at August 1982, the Self-Government Regulations took the form described below.
Part 7 of the Self-Government Act is headed "TRANSITIONAL PROVISIONS" and includes provisions designed to continue existing laws of the Territory after the date of commencement of the Act. Section s 57(1) provides that
"[s]ubject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under an enactment."
Section 69 addresses the question of transfer of Commonwealth property to the Northern Territory, including Commonwealth interest in minerals:
"(1) In this section -
`mineral' means a naturally occurring substance or mixture of substances, whether in a solid, liquid or gaseous state;
...
(2) All interests of the Commonwealth in land in the Territory, other than interests referred to in sub-section (5), are, by force of this section, vested in the Territory on the commencing date.
(3) All interests in land in the Territory held from the Commonwealth immediately before the commencing date are, by force of this section, held from the Territory on and after the date on the same terms and conditions as those on which they were held from the Commonwealth.
(4) All interests of the Commonwealth in respect of minerals in the Territory (other than prescribed substances within the meaning of the Atomic Energy Act 1953 and the regulations made under that Act and in force immediately before the commencing date) are, by force of this section, vested in the Territory on that date."
Part 7 of the Self-Government Act also provides for the acquisition by the Commonwealth of any interest on land vested in the Territory pursuant to s 69(2) of the Act. Section 70 provides as follows:
"70(1) The Minister may, from time to time, recommend to the Governor-General that any interest in land vested or to be vested in the Territory by sub-section 69(2) (including an interest less than, or subsidiary to, such an interest) be acquired from the Territory by the Commonwealth under this section.
(2) The Governor-General may, on the recommendation of the Minister under sub-section (1), authorise the acquisition of the interest for a public purpose approved by the Governor-General.
(3) The Minister may cause to be published in the Gazette notice of the authorisation by the Governor-General and, in the notice, declare that the interest is acquired under this section for the public purpose approved by the Governor-General.
(4) Upon publication of the notice in the Gazette or immediately after the commencement of section 69, whichever is the later, the interest to which the notice relates is, by force of this section -
(a) vested in the Commonwealth; and
(b) freed and discharged from any restriction, dedication or reservation made by or under any enactment (not being an interest to which sub-section (6) applies),
to the intent that the legal estate in the interest, and all rights and powers incident to that estate or conferred by the Lands Acquisition Act 1955 in relation to that estate, are vested in the Commonwealth."
...
(6) Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interest derived from the first-mentioned interest are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory."
The words "or to be vested", in s 70(1), appear to be explained by the fact that s 70 came into force on 22 June 1978, the date of assent, while the other provisions of the Self-Government Act came into force on 1 July 1978: see Newcrest Mining v Commonwealth, at 1405, per Gummow J. Section 70(11) was added by the Northern Territory (Self-Government) Amendment Act (Cth), s 11:
"Where sub-section (4) has effect in relation to an interest in land, that sub-section has the like effect in relation to any interest vested in the Territory by sub-section 69(4) in respect of minerals in or on that land."
The Self-Government Regulations
As I have noted, the power conferred by s 35 of the Self-Government Act 1901 was exercised by the promulgation of the Self-Government Regulations. Regulation 4(1) provides that, subject to subregs (2) and (4), the Ministers of the Territory are to have executive authority under s 35 of the Act in respect of a large number of specified matters, including
"Mining and minerals (including gases and hydrocarbon fuels)".
Regulation 4(2) creates an exception to the operation of reg 4(1), but is itself subject to a qualification. Regulation 4(2) is as follows:
"(2) Subject to sub-regulation (6), a matter specified in sub-regulation (1) shall not be construed as including or relating to -
(a) the mining of uranium or other prescribed substances within the meaning of the Atomic Energy Act 1953 and regulations under that Act as in force from time to time; or
(b) rights in respect of Aboriginal Land under the Aboriginal Land Rights (Northern Territory) Act 1976."
Regulation 4(6) provides that
"[s]ub-regulation (2) does not apply to a matter specified in sub-regulation (1) if the matter is also included in the matters specified in sub-regulation (5)".
The Ministers of the Territory therefore have executive authority in matters relating to the mining of prescribed substances or rights in respect of Aboriginal land if the matters fall within reg 4(5). Regulation 4(5) states that the Ministers of the Territory are to have executive authority under s 35 in respect of a number of "matters", including the following:
"(a) ...
(b) matters in respect of which duties, powers, functions or authorities are expressly imposed or conferred by or under another Act in force in the Territory, or by or under an enactment or an agreement or arrangement referred to in paragraph (f), on the Administrator or a Minister or officer of the Territory;
(c) matters under an enactment (including the making of regulations, rules, by-laws and other instruments) made for the purposes of, and to the extent provided by, such another Act that expressly provides for the making of such an enactment;
...
(f) agreements and arrangements between the Territory and the Commonwealth or a State or States, including the negotiation and the giving effect to any such agreement or arrangement by the Territory by way of enactment, regulations or other instrument, or otherwise."
The word "enactment", used in subregs (b) and (c), is defined in s 4 of the Self-Government Act to mean
"(a) a law (however described or entitled) passed by the Legislative Assembly and assented to under section 7 or 8; or
(b) an Ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by this Act."
The definition of "enactment" in the Self-Government Act applies in the absence of a contrary intention, to the Self-Government Regulations: Acts Interpretation Act (Cth), s 46(a).
The Mining Ordinance and the Mining Act 1939
Prior to self government in the Northern Territory, mining in the Territory was governed by the Mining Ordinance 1939, as amended from time to time. The Mining Ordinance continued in force after self-government until its repeal in 1982, and was cited after self-government as the Mining Act 1939 . However, I shall refer to it as the "Mining Ordinance". (For a general description of the operation of the Mining Ordinance and the Mining Regulations 1940, see the judgment of French J in Newcrest Mining (WA) Ltd v The Commonwealth [1993] FCA 528; (1993) 46 FCR 342, at 398-401.) The Mining Ordinance repealed earlier legislation, including specified Acts of South Australia which continued to apply in the Territory after its acceptance by the Commonwealth in 1910, and Ordinances of the Northern Territory: Mining Ordinance, s 3.
Part 5 of the Mining Ordinance authorised the Administrator of the Northern Territory to grant a variety of mining leases, including leases of Crown land for the working of "minerals", subject to the payment of rent and royalties: Part 5, Div 2. The expression "minerals" was defined in s 7 to mean
"all minerals other than gold, and includes all...naturally occurring inorganic or fossil substances...as the Administrator...declares to be minerals".
The Mining Ordinance was amended in 1953, shortly after the enactment of the Atomic Energy Act 1978 : Mining Ordinance (No 2) 1953, commencing on 3 September 1953. The amendments authorised the Administrator to grant a lease of such area as he or she saw fit "for the purpose of mining for a prescribed substance within the meaning of the Atomic Energy Act 1953": Mining Ordinance, s 47A; see also ss 51(3), 87A.
The Mining Ordinance continued in force under s 57 of the Self-Government Act, until repealed by the Mining Act 1980, which came into force on 15 April 1982: Mining Act 1980, s 3, Schedule. Between the date of commencement of the Self-Government Act and the coming into force of the Mining Act 1980, the Mining Ordinance was amended on three occasions. The Mining Act (No 4) (NT), s 4, which came into force on 3 January 1979, inserted s 7A into the Mining Ordinance (which by then was cited as the Mining Act 1978 ). Section 7A provided as follows:
"7A(1) Subject to sub-section (2), but notwithstanding anything elsewhere contained in this Act or the Regulations made thereunder, in respect of a prescribed substance within the meaning of the Atomic Energy Act 1953 of the Commonwealth, the Minister -
(a) shall exercise his powers in accordance with and give effect to the advice of the Minister of the Commonwealth for the time being administering section 41 of that Act; and
(b) shall not exercise his powers otherwise than in accordance with such advice.
(2) Sub-section (1) does not operate to prevent the Minister from acting without advice, or to require the Minister to take or give effect to advice, in relation to a matter arising under Part IVA."
(Part 4A dealt with exploration licences.) The Mining Act (No 4) (NT), s 10, introduced a further amendment which required the lessee under a special mineral lease granted in respect of a prescribed substance to pay royalty to the Commonwealth at the rate specified in the lease and approved by the Commonwealth Minister for the time being administering s 41 of the Atomic Energy Act 1980 : see Mining Act, s 54F(1A).
The Lease in the present case was granted under the Mining Act . At the relevant time, Part 6, Division 2 of the Mining Act 1980 regulated the grant of mineral leases. Section 60 empowered the responsible Minister of the Territory to grant a lease for a term of twenty-five years for the mining of minerals specified in the lease and for related purposes. The Act defined "mineral" to include any naturally occurring inorganic element or compound obtainable from land by mining: s 4(1). The Act established a regime for such matters as surveys (s 61), conditions of lease (s 66) and renewal of leases (s 67).
Section 175 of the Mining Act 1980 was headed "PRESCRIBED SUBSTANCES UNDER THE ATOMIC ENERGY ACT" and reflected the terms of s 7A of the Mining Ordinance. Section 175 provided (incorporating amending legislation passed prior to the commencement date of 15 April 1982) as follows:
"(1) Subject to sub-section (2), but notwithstanding anything elsewhere contained in this Act (other than sub-section (3)) or the Regulations, in respect of a prescribed substance within the meaning of the Atomic Energy Act 1953 of the Commonwealth, the Minister -
(a) shall exercise his powers in accordance with, and give effect to, the advice of the Minister of the Commonwealth for the time being administering section 41 of that Act; and
(b) shall not exercise his powers otherwise than in accordance with such advice.
(2) Sub-section (1) does not operate to prevent the Minister from acting without advice, or to require the Minister to take or give effect to advice, in relation to a matter arising under Part IV.
(3) The lessee of a mineral lease granted in respect of a prescribed substance referred to in sub-section (1) is liable to pay royalty to the Commonwealth, in respect of that prescribed substance obtained from the land comprised in the lease, in such manner and at such times, and at such rate on an amount calculated or assessed in accordance with such method, as are -
(a) specified in the lease; or
(b) varied or determined in accordance with the terms of the lease."
The reference in s 175(2) to Part 4 of the Act was to the provisions governing the grant of exploration licences.
THE RANGER PROJECT
Frequent reference was made in the parties' submissions to the Ranger Project and, in particular, to the legislative amendments designed to permit that project to proceed. Since some of those amendments bear on the issues in the present case, it is convenient to trace briefly the relationship between the Ranger Project and the complex legislation already outlined.
In October 1975, the Commonwealth and two co-venturers entered into a Memorandum of Understanding relating to the exploitation of Ranger uranium deposits situated (like Jabiluka) near Jabilu in the Northern Territory. Under the Memorandum of Understanding, the Commonwealth, through the Atomic Energy Commission, was to contribute most of the working capital and was to receive 50 per cent of the net proceeds of sale: First Report of the Ranger Uranium Environmental Inquiry (AGPS 1977), at 9; Second Ranger Report, at 249. Prior to the signing of the Memorandum of Understanding, the then Prime Minister, in July 1975, directed that an inquiry be held into the Ranger proposal under s 11 of the Environment Protection (Impact of Proposals) Act 1974 (Cth). That inquiry, known as the Ranger Inquiry, produced the two reports to which I have referred, both published in 1977.
While the Ranger Inquiry was under way, but before its completion, the Commonwealth Parliament enacted the Land Rights Act. Section 40(6) of that Act provided that s 40(1) (relating to the conditions for the grant of mineral interests on Aboriginal land) was not to apply if the land known as the Ranger Project Area became Aboriginal land. Similarly, s 41(2) provided that s 41(1) (concerning the application of the Atomic Energy Act 1946 to Aboriginal land) was not to apply to the Ranger Project Area if it became Aboriginal land.
The Ranger Inquiry considered whether the mining legislation of the Northern Territory should be used to authorise the Ranger Project. The Inquiry concluded that to take this course was inappropriate, although it does not seem to have been suggested that the Northern Territory legislation was incapable of application: Second Ranger Report, at 246-248. The Inquiry also considered, but recommended against the use of, s 41 of the Atomic Energy Act to authorise exploitation of the uranium reserves by the co-venturers. The Second Ranger Report pointed out that s 41(1) of the Atomic Energy Act, in its then form, empowered the Minister to authorise operations only if they were conducted "on behalf of the Commonwealth". The Inquiry considered it was doubtful whether the Ranger Project was to be carried out "on behalf of the Commonwealth", since it was "an ordinary commercial [project]" (at 249). Moreover, s 41 was an inappropriate source of authority for a project which required strict environmental controls. The Inquiry pointed out that s 41 of the Atomic Energy Act derived from s 13A of the Act 1978 (introduced in 1952) and made the following comments (at 249):
"Section 13A was enacted in order to make more clear and certain the powers already existing under the 1946 Act (see House of Representatives Hansard for 21 May 1952, 614, 950).
It seems to us that s 41 is a special power which was enacted at a time when the need to secure Australian uranium for use by Great Britain and the United States of America in nuclear weapons was uppermost in the minds of those concerned. If its use is to be continued in a situation where peaceful uses only are in mind and commercial profit is intended, the changed rationale should be recognised. The power, if it can be applied in the circumstances, should not be used simply because it exists and may appear convenient.
In our First Report we explained the very special nature of uranium, and described it as being a highly strategic material. It is therefore necessary for there to be close government controls. This does not mean that the actual mining operations must be conducted by or on behalf of the Government, still less that the local environment controls be determined or supervised under the Atomic Energy Act."
As has been previously noted, the Atomic Energy Amendment Act (Cth) amended s 41(1) of the Atomic Energy Act 1978 (by inserting the words "or in association with") and introduced s 41(4) into the legislation (contemplating the concurrent operation of State and Territory law). It also substituted a new s 34, invoking a number of available heads of Commonwealth legislative power, in addition to the powers with respect to defence and the Territories.
The second reading speech of the Minister stated that the 1978 amending bill was part of a package of legislation designed to give effect to the Government's decision on the further development of Australia's uranium resources including, as a "fundamental element" the development of the Ranger deposit in accordance with the 1975 Memorandum of Understanding: Cth Parl Deb, HR, 10 April 1978, at 1293 (Minister for National Development). The speech recorded the Government's rejection of the Ranger Inquiry's recommendation that the Atomic Energy Act could not provide an appropriate basis for mining operations at Ranger: id at 1294. The Minister stated that amendments were to be made to broaden the basis of the Act, clearly authorise the participation of the Atomic Energy Commission in the project and "remove the main obstacle that the Ranger Inquiry saw in proceeding with the Ranger project under the Atomic Energy Act": ibid.
The amendments effected by the Atomic Energy Amendment Act (Cth) apparently did not resolve all difficulties, since further amendments were made by the Atomic Energy Amendment Act (No 2) 1978 (Cth). The later Act, inter alia, inserted the words "or 2 or more persons engaged in a joint venture" in s 41(1) and introduced ss 41A to 41C into the legislation (dealing with revocation and variation of authorities, assignment of interests and further authorities in respect of the Ranger Project Areas). The Minister stated in the second reading speech that the main purpose of the Bill was to ensure that the authority issued under s 41 of the Atomic Energy Act 1980 afforded the joint venturers security of tenure similar to that enjoyed by the holder of a mining lease under State or Territory law: Cth Parl Deb, HR, 16 November 1978, at 2920 (Minister for Trade and Resources). The Minister made the following observations (at 2920):
"The Ranger joint venturers have pointed out that section 41 of the Atomic Energy Act, as it presently stands, does not provide them with adequate security of tenure. While the Act was designed to allow mining, detailed provisions to cover mining on a commercial basis were never included. Consequently, the Act does not address these issues. Because of the decision to proceed with Ranger under the Act, amendments to deal with them have now become necessary. This does not indicate, however, that the Government has in mind using the Act for other mining projects."
Further amendments were made later to the Atomic Energy Act to accommodate the Ranger Project. Following assignment by the joint venturers of their interests in the authority in September 1980, the Act was amended to provide that operations on the Ranger Project Area, if carried out as provided in the authority and in accordance with other requirements, were to
"be deemed for the purposes of this Act, to be carried on on behalf of the Commonwealth and to be authorised by the authority":
Atomic Energy Act, s 41(2AA), inserted by the Atomic Energy Amendment Act (No 2) (Cth), s 5.
In Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1, the High Court upheld the "statutory fiction" enacted by s 41(2AA) as a drafting device supported by the Territories' power in s 122 of the Constitution. See also Northern Land Council v The Commonwealth (No 2) [1987] HCA 52; (1987) 61 ALJR 616, in which the Court held that s 44(2) of the Land Rights Act, of itself, did not impose a fiduciary duty on the Commonwealth when negotiating with a Land Council.
EVENTS PRECEDING THE LEASE
I have referred earlier to the terms of the Jabiluka Project Lease. It is necessary to provide some further details of the events leading up to the Lease.
On 29 June 1978, shortly before the Self-Government Act 1946 came into force, the Governor-General, under s 70(2) of the Self-Government Act, authorised the acquisition of an area of about 20,000 square kilometres for the purpose of creating Kakadu National Park. This acquisition was of land which otherwise would have vested in the Territory on the commencement of the Self-Government Act, by virtue of s 69(2) of the Act. The land included what later became the Jabiluka Project Land. (The terms of the notice of acquisition appear in the judgment of French J in Newcrest Mining v Commonwealth [1993] FCA 528; (1993) 46 FCR 342, at 350-351.)
On 22 March 1979, the Commonwealth and the Northern Territory executed an agreement. The agreement provided that, in all matters under the Mining Act (that is, the Mining Ordinance as continued in force by the Self-Government Act) relating to prescribed substances situated in the Territory, the Territory Minister administering that Act would exercise or perform his or her duties, powers and functions in accordance with the advice of the Commonwealth Minister administering s 41 of the Atomic Energy Act, and not otherwise: cl 3. This agreement was entered into shortly after s 7A was introduced into the Mining Ordinance.
By a second written agreement between the Commonwealth and the Northern Territory, dated 8 February 1982, it was agreed that in all matters under the Mining Act 1980 (which by then had been enacted but was not yet in force) relating to prescribed substances situated in the Territory the Territory Minister would exercise and perform all duties, powers and functions in accordance with the advice of the responsible Commonwealth Minister and not otherwise: cl 3. Clause 4(a) of the second agreement required the Territory Minister to ensure that, whenever any mining project involving prescribed substances was under consideration, consultations would be held between the Commonwealth Minister and the Territory Minister at the earlier practicable stage. Clause 4(b), as amended by a further agreement of 12 May 1982, required that in every mineral lease granted or approved under the Mining Act for the mining of a prescribed substance, there would be specified, in terms approved by the Commonwealth Minister, all relevant matters relating to the determination, variation, assessment and payment of royalty in respect of prescribed substances mined in the Territory under the mineral lease.
On 25 June 1982, the Commonwealth Minister for Trade and Resources wrote to the Territory Minister for Mines and Energy. The letter included the following passages:
"On 16 March 1982 I announced that I had given conditional development approval under the Government's uranium export policy for the development of the Jabiluka uranium deposits in the Northern Territory. As the project is partly on land which has been recommended for granting to an Aboriginal Land Trust, I indicated at that time that my approval was conditional upon Pancontinental Mining Limited and Getty Oil Development Company Limited ("the Project Partners"), concluding an agreement with the Northern Land Council on the terms and conditions under which development might proceed and that a lease would not be issued until after then. I understand that such an agreement is close to finality and I am therefore now writing to you in relation to determining the terms and conditions for the Jabiluka Mineral Lease, so that certain other administrative steps which must be taken before the lease is issued can be completed.
...
Section 175 of the Mining Act 1980, as amended, of the Northern Territory envisages that you would exercise your powers under that Act in respect of a prescribed substance within the meaning of the Atomic Energy Act 1953 of the Commonwealth, in accordance with my advice as the Commonwealth Minister administering section 41 of that last-mentioned Act. I advise therefore that the terms and conditions of the mineral lease to be issued for the Jabiluka uranium project, under the Mining Act 1980 as amended should, in respect of prescribed substances, include those set out in the attachment hereto. Because the administrative steps that I have mentioned have yet to be completed, I advise further that the mineral lease should not be issued until I have requested you to do so."
The schedule set out the detailed terms and conditions of the mineral lease later incorporated in the Lease to Pancontinental and Getty.
On 25 June 1982, the same date as the letter extracted above, the Governor-General made a grant to the Jabiluka Aboriginal Land Trust of a fee simple estate in 6,758 hectares of land, said to be more or less NT Portion 2253 (that is, the land to which I have referred as the Jabiluka Trust Land). The deed reserved to the Commonwealth the right to any minerals existing in their natural condition, being minerals all interests in which were vested in the Commonwealth.
By letter dated 29 June 1982, the Territory's Acting Minister for Mines and Energy responded to the Commonwealth Minister's letter of 25 June 1982. The response advised that the Acting Minister had determined that the terms and conditions of the proposed lease should be those set out in the schedule accompanying the earlier letter. The Acting Minister stated that he was prepared to grant the lease after the commencement of the Mining Act 1980 on 1 July 1982 and after the Commonwealth Minister's further advice that all other necessary procedural steps had been completed.
On 21 July 1982, the Northern Land Council (which was responsible for the Jabiluka Trust Land) and the proposed lessees entered a deed of agreement, pursuant to s 43 of the Land Rights Act. Under this agreement, the Northern Land Council consented to the prospective grant of the mineral lease by the Northern Territory to Pancontinental and Getty, on the terms and conditions specified in the agreement. The deed was a detailed one, running to ninety-two pages, and covered such issues as financial arrangements, rights of traditional owners, sacred sites and Aboriginal places and cultural appreciation. The Commonwealth Minister gave consent, pursuant to s 27(3) of the Land Rights Act, to the Northern Land Council entering the agreement.
On 23 July 1982, the Commonwealth Minister wrote to his Territory counterpart, as follows:
"On 23 July 1982 the Acting Minister for Aboriginal Affairs consented in writing to the making of a grant of a mining interest in respect of Aboriginal land, being a Mineral Lease to be granted under the Mining Act 1980 of the Northern Territory over land including Aboriginal land, the subject of a Deed of Grant dated 25 June 1982 to the Jabiluka Aboriginal Land Trust. The Northern Land Council has also given its consent.
I am informed that on 22 July 1982 there was registered by the Registrar-General of the Northern Territory a transfer to the Northern Territory of the title to certain land other than Aboriginal land within the Jabiluka Project Area and the title to minerals other than prescribed substances within that area.
Accordingly, I now advise you to grant a Mineral Lease for the Jabiluka uranium project, in so far as it relates to prescribed substances, in the form and subject to the terms and conditions determined by the Acting Minister for Mines and Energy of the Northern Territory on 29 June 1982."
On the same date the Acting Minister for Aboriginal Affairs executed a consent, pursuant to s 40(1)(a) of the Land Rights Act, to the grant of a mining lease over the Jabiluka Trust Land.
It will be seen that the Commonwealth Minister's letter of 23 July 1982 refers to the registration of a transfer to the Northern Territory. Immediately prior to the registration of that transfer, the Commonwealth was the registered proprietor of an estate in fee simple in
* any minerals on or below the surface of the Jabiluka Trust Land; and
* the Jabiluka Project Land, other than the Jabiluka Trust Land which had already been granted in fee simple to the Jabiluka Aboriginal Land Trust.
By a transfer dated 21 July 1982, the Commonwealth transferred to the Territory its interest in the minerals, on or below the surface of the Jabiluka Trust Land, except that it reserved its interest in all prescribed substances. By a second transfer of the same date the Commonwealth transferred to the Territory its interest in the Jabiluka Project Land other than the Jabiluka Trust Land.
On 12 August 1982, the Territory Minister advised his Commonwealth counterpart that the Lease had been issued on that day.
THE SUBMISSIONS
The Applicant's Case
The starting point for the applicant's argument was that, at the date of the Jabiluka Project Lease, the Commonwealth had title to all prescribed substances in the Northern Territory. The effect of the Acceptance Act was that, as from 1 January 1911, the Commonwealth became the owner of land in the Territory, subject to interests previously created and to existing native title interests. As from 11 September 1946, title to uranium and other prescribed substances in the Territory was declared to be the property of the Commonwealth by the Act, s 6, and the Atomic Energy Act 1946 , s 35(2). Prescribed substances were excluded from interests of the Commonwealth in minerals which were vested in the Territory by the Self-Government Act, s 69(4). Mr Basten QC conceded on behalf of the applicant, for the purposes of these proceedings, that the Act 1946 was effective to extinguish any native title rights to uranium deposits which are the subject of the Jabiluka Project Lease.
The conveyancing documents creating interests in the Jabiluka Project Land had preserved the Commonwealth's title to the prescribed substances. The deed of grant of the Jabiluka Trust Land under the Land Rights Act had excepted minerals all interests in which were vested in the Commonwealth (as the Land Rights Act required). When the Commonwealth transferred to the Territory its interest in minerals on or under the Jabiluka Trust Land, on 21 July 1982, it reserved its interest in prescribed substances. Thus, at the time of the Lease, property in the prescribed substances remained vested in the Commonwealth.
Next, the applicant submitted, on the authority of Cudgeon Rutile (No 2) Pty Ltd v Chalk [1975] AC 520, at 532-534, that the Crown in right of the Commonwealth cannot create or dispose of any interest in land vested in it in the absence of statutory authority and strict compliance with the terms of any statutory authority. Section 41 of the Atomic Energy Act provided authority for the grant of mining leases in respect of prescribed substances, but the Jabiluka Project Lease had not been granted pursuant to s 41. Section 41, in Mr Basten's words, constituted a "mandatory requirement" and, in the absence of compliance with that provision, there was no statutory authority to support the grant of the Jabiluka Project Lease. Although both the Act, s 6(2), and the Atomic Energy Act, s 35(4), envisaged that the title of the Commonwealth to any prescribed substance would be subject to rights granted under the law of a Territory "with express reference to that substance", those provisions did not support the grant of the Jabiluka Project Lease.
That compliance with s 41 of the Atomic Energy Act 1946 was required for the creation of interests in prescribed substances was further demonstrated by the "dual scheme" established under the Land Rights Act with respect to mining on Aboriginal land. The first part of the scheme was that mining interests could be created under Territory law only where both the Minister and the Land Council consented: ss 40, 43. The second part of the scheme was that an authority under the Atomic Energy Act or any other Commonwealth Act could apply to Aboriginal land only if the Commonwealth Minister and the Land Council consent to the application of the Act, or the Governor-General declared that the national interest required the Act to apply: ss 41, 44. The parallel schemes suggested that it would make little sense for a Northern Territory lease, of itself, to be sufficient to create interests in prescribed substances. Otherwise, the need for Land Council approval to the application of the Atomic Energy Act, and the provision for the Commonwealth to pay for that approval under s 44, could be circumvented. Indeed, the amendments to the Atomic Energy Act designed to facilitate the Ranger Project (notably the insertion of s 41(2AA) into the Atomic Energy Act, upheld in Northern Land Council v The Commonwealth (No 1)) would have been unnecessary if there had been no need for an authority under s 41 of the Atomic Energy Act.
The Land Rights Act, as at 1982, envisaged that the Atomic Energy Act would apply to Aboriginal land. To accede to the proposition that a valid lease of prescribed substances could be created under Territory law would enable the Commonwealth to avoid the "protective requirement" of an agreement with the Land Council and the payment of moneys pursuant to that agreement.
In the event that the principal argument was rejected, the applicant made further submissions.
First, the Mining Act 1980 could not and did not have the effect of authorising a lease which divested the Commonwealth of its interest in prescribed substances. Where a Commonwealth law and a Territory law are inconsistent, the Commonwealth law has primacy: Attorney-General for the Northern Territory v Hand (1989) 25 FCR 345 (FCA/FC), at 366-367, per Lockhart J. The Territory therefore could not enact laws inconsistent with the constraints, express and implied, imposed by the Atomic Energy Act and the Land Rights Act. If the applicant's primary argument were correct, the Mining Act 1980, insofar as it purported to authorise leases over prescribed substances, was inconsistent with the Atomic Energy Act.
In any event, the Self-Government Act, on its proper construction, did not contemplate that the Territory could legislate so as to authorise the grant of leases in respect of prescribed substances. This conclusion flowed from the terms of s 69(4) of the Self Government Act (excepting prescribed substances from the vesting of Commonwealth interests in minerals in the Territory) considered in conjunction with the Atomic Energy Act and the Land Rights Act. Further, s 175 of the Mining Act 1980 specifically stated that the Territory Minister was to exercise his or her powers in accordance with the advice of the Commonwealth Minister administering s 41 of the Atomic Energy Act. This provision assumed that the Self-Government Act did not permit the Territory to make laws with respect to the Commonwealth's property in uranium. A Territory law of general application should not be construed as giving power to a Territory Minister to create or dispose of Commonwealth interests in land.
Secondly, the Territory Minister lacked the executive authority to execute the Jabiluka Project Lease. That authority had to be found in the Self-Government Regulations promulgated under the Self-Government Act. None of the paragraphs of reg 4(5) relied on by the respondents was sufficient to support the actions of the Territory's Minister. This was because
* the relevant regulations applied only in relation to agreements or arrangements entered into by the Territory that were within power and the agreements in this case incorrectly assumed that the Mining Act 1980 could apply independently to prescribed substances;
* in any event, insofar as the Self-Government Regulations authorised executive authority in relation to agreements or arrangements between the Commonwealth and the Territory, such agreements or arrangements could not avoid the need for statutory authority to enable the Territory to grant interests in land.
The Respondents' Case
The respondents (except for the Minister and the Commonwealth) were separately represented: Mr Walker SC and Mr Gageler appeared for the Minister and the Commonwealth; Mr Young QC and Mr Mukhtar appeared for ERA; and Mr Sullivan QC and Ms Webb appeared for the Northern Territory. Thus three separate sets of submissions were made on behalf of the respondents. While there were differences of emphasis, for example in relation to the power of the Northern Territory legislature to bind the Commonwealth, in substance the submissions were to the same effect. For the purposes of this summary, therefore, I shall not refer to the submissions separately.
First, the respondents accepted that property in the prescribed substances covered by the Lease was, at the time the Lease was granted, vested in the Commonwealth. They also accepted that no authority was granted in respect of the Jabiluka Project Land pursuant to s 41 of the Atomic Energy Act and, indeed, could not have been granted because the project was not to be conducted on behalf of or in association with the Commonwealth.
However, the respondents contended that s 41 of the Atomic Energy Act was merely facultative and was not intended to be an exhaustive statement of the circumstances in which the mining of prescribed substances could be authorised. It was not so expressed and the background circumstances did not suggest that it should be given such an interpretation. The section simply did not address the question of mining or uranium by private interests, not associated with the Commonwealth.
In this connection, the respondents argued that to construe s 41 of the Atomic Energy Act in this way created no difficulties for the operation of the Land Rights Act. Sections 41 and 44 of the Land Rights Act, as the legislation stood in 1982, were intended to provide for the specified consents and for payments by the Commonwealth only where mining of a prescribed substance is to take place on behalf of or in association with the Commonwealth.
Secondly, the grant of legislative power to the Territory under s 6 of the Self-Government Act was of sufficient breadth to support Territory mining legislation which authorised exploitation of prescribed substances, property in which was vested in the Commonwealth. There was nothing to prevent the Commonwealth from authorising dealings with its property by conferring the necessary powers on a Territory legislature or upon the Executive Government of a Territory. Cudgeon Rutile did not stand for any contrary proposition. Even if there were any doubt, ss 35(4) and 41(4) of the Atomic Energy Act specifically contemplated and authorised Territory legislation granting rights in prescribed substances, notwithstanding that property in those substances was vested in the Commonwealth.
Thirdly, the Mining Act 1980 was a valid exercise of the legislative power conferred on the Territory by s 6 of the Self-Government Act. There was no basis for reading s 69(4) of the Self-Government Act as withdrawing legislative authority that would otherwise have been conferred on the Territory. The Mining Act 1980, at the relevant time, authorised the grant of leases in respect of uranium vested in the Commonwealth, provided certain conditions were met. Those conditions were satisfied.
Fourthly, the Self-Government Regulations conferred executive authority on the Territory Minister to execute the Jabiluka Project Lease as an exercise of executive authority of the Territory.
THE ATOMIC ENERGY ACT
The Scope of s 41(1)
The first question is whether, at the date of the Jabiluka Project Lease, s 41(1) of the Atomic Energy Act was the only provision under which a grant of an entitlement to mine and recover prescribed substances from the Jabiluka Project Land could be made. In Mr Basten's submission, the legislation implemented a policy of Commonwealth control of uranium resources, because of uranium's indispensable role in the production of nuclear energy, both for defence and peaceful purposes. The Atomic Energy Act achieved this objective by authorising the exploitation of uranium and other prescribed substances by means only of operations conducted on behalf of or in association with the Commonwealth, pursuant to s 41(1), or by the exercise of the other powers granted under the Act.
Although Mr Basten relied on the legislative history of the Atomic Energy Act, the appropriate starting point is the language of the Atomic Energy Act as it stood in 1982. It will be remembered that s 41(1) empowered the Minister where, in his or her opinion, a prescribed substance was present on or under land, to
"authorise a person, or 2 or more persons engaged in a joint venture, to carry on, on behalf of or in association with the Commonwealth, operations in accordance with this section on the land".
The person so authorised was empowered to enter and take possession of the land and to carry on mining activities upon or under the land: s 41(2). An authority was not to be conferred in relation to land within a State without the consent of the State, unless the authority was conferred for defence purposes: s 41(2B). Section 41(4) stated that, except as provided by the regulations, s 41 was not intended to exclude or limit the operation of a State or Territory law "capable of operating concurrently" with s 41. These provisions, considered in their context, create a number of difficulties for the applicant's argument.
The first difficulty facing the applicant is that s 41(1) of the Atomic Energy Act was expressed as a grant of power to the Minister to authorise mining operations on behalf of or in association with the Commonwealth. Neither s 41(1), nor any other provision of the Atomic Energy Act, expressly prohibited the mining of prescribed substances otherwise than in accordance with an authority granted under s 41(1). In short, the language of s 41(1) itself is not apt to create (in Mr Basten's words) a "mandatory requirement" for the exploitation of uranium ore in a Territory. Had Parliament intended to prohibit all mining of uranium or prescribed substances in a Territory otherwise than in accordance with an authority granted under s 41(1) of the Atomic Energy Act, it would have been easy to say so. In particular, had Parliament intended to prohibit mining of prescribed substances except on behalf of or in association with the Commonwealth, it would have been easy to say so. The applicant's argument requires a negative inference to be drawn from a provision empowering the Minister to grant an authority to carry on operations in particular circumstances.
The second difficulty confronting the applicant is that s 41(1) empowered the Minister to authorise operations on behalf of or in association with the Commonwealth relating to prescribed substances in both States and Territories (although an authority in a State could only be granted over the opposition of the State concerned in the circumstances specified in s 41(2B)). The significance of s 41(1) extending to both States and Territories is that the Atomic Energy Act, when read as a whole, clearly contemplated that the mining of uranium and other prescribed substances could take place in the States, under State law. The Act provided for regulations prohibiting the working of prescribed substances, except under a licence granted by the Governor-General (s 38(1),(2)), such licence to be granted only for the purposes identified in s 38(4) (defence, overseas trade, external affairs). But until the regulations were promulgated and acted upon, or until an authority was granted under s 41(1) in relation to a State, the States were free (so far as Commonwealth law was concerned) to permit mining of prescribed substances, including mining by private corporations or individuals. That the Atomic Energy Act contemplated that mining of uranium might take place under State law is shown by the fact that the functions of the Atomic Energy Commission included co-operating with appropriate authorities of a State "in matters associated with...the discovery and mining in the State of uranium": s 17(1)(c). It is also shown by s 41(4), to which I shall return shortly.
It follows that s 41(1) was not intended to be the exclusive source of power for the mining of uranium in a State. Since s 41(1) did not distinguish between authorising mining operations in the States and in the Territories, it would seem to be strange if the sub-section were to be read as constituting a "mandatory requirement" for mining of prescribed substances in the Territories, but not for mining of prescribed substances in the States. If Parliament were prepared to contemplate the mining of uranium under State law, otherwise than on behalf of or in association with the Commonwealth, it is difficult to see why the policy underlying the legislation would require s 41(1) to be read as precluding equivalent action under Territory law.
Mr Basten countered the second difficulty by invoking the declaration in s 35(2) of the Atomic Energy Act, and its predecessor, s 6(1) of the Act. Section 35(2) provided that prescribed substances in a Territory at the date the Act commenced (15 April 1953), not being the property of the Commonwealth immediately before 11 September 1946 (the date of commencement of the 1946 Act 1946 ) were deemed to have become the property of the Commonwealth as from 11 September 1946. This declaration was consistent with the terms of s 6(1) of the Act, which had declared all prescribed substances (as defined in s 3 of that Act) in a Territory to be the property of the Commonwealth. As Mr Basten pointed out, the Atomic Energy Act 1946 did not provide for all uranium deposits in a State to become the property of the Commonwealth, although the Commonwealth could acquire property in prescribed substances by taking possession of them under s 40 of the Act.
The applicant's reliance on s 6(1) of the Act 1946 and s 35(2) of the Atomic Energy Act highlights the third difficulty facing her argument, namely, the effect of ss 35(4) and 41(4) of the Atomic Energy Act. Section 35(4), the counterpart to s 6(2) of the Act, provided that the title of the Commonwealth to any prescribed substance was
"subject to any rights granted after 10 September 1946 by or under the law of a Territory, with express reference to that substance, but to no other rights."
Mr Basten argued that s 35(4) should be confined to rights created between 11 September 1946 and 15 April 1953, the date of commencement of the Atomic Energy Act 1946 . Putting that argument to one side for the present, s 35(4) of the Atomic Energy Act and s 6(2) of the Act 1946 clearly contemplated that Territory laws could grant rights in prescribed substances, notwithstanding that property in those substances had vested in the Commonwealth pursuant to s 35(2) of the Atomic Energy Act and s 6(1) of the Act. In other words, the provisions contemplated that prescribed substances, property to which had vested in the Commonwealth, could be subject to rights granted under valid Territory laws. Such Territory laws would be made pursuant to other Commonwealth legislation. In the case of the Northern Territory the source of authority for Territory laws prior to self-government would have been the Administration Act 1946 . After self-government, the source would have been the Self-Government Act.
The subjection of Commonwealth title to rights granted under Territory law did not imply that the Commonwealth had relinquished all control over the exploitation of prescribed substances in the Territories. Section 35(4) of the Atomic Energy Act, like s 6(2) of the Act, applied to rights granted under a law of a Territory "with express reference to that substance". There is a question as to whether the quoted words qualify "rights granted" or "law of the Territory". I am inclined to the view that it was the law of the Territory that had to be made "with express reference to that substance". This construction would give the Commonwealth greater opportunity to consider whether to exercise the powers of disallowance of Territory laws available to it (in the case of the Northern Territory) both before and after self-government: Administration Act, s 4W; Self-Government Act 1974 , s 9(1). It is consistent with the goal of close Commonwealth control of uranium resources in the Territories which lies at the heart of the Atomic Energy Act. Whichever construction of s 35(4) is adopted, the provision was consistent with the Commonwealth's ultimate control over prescribed substances, since it could take action under the Administration Act or the Self-Government Act to override action by or under a law of the Territory.
In any event, other measures were open to the Commonwealth to control the exploitation of prescribed substances in the Territories. Section 38 of the Atomic Energy Act provided for regulations prohibiting the working of minerals from which prescribed substances could be obtained, except under and in accordance with a licence. This section applied to minerals in the Territories, as well as the States (as to the States, see s 38(4)). And, of course, the Parliament's power under s 122 of the Constitution, to make laws for the government of any territory surrendered by any State and accepted by the Commonwealth (as was the Northern Territory) provided the ultimate safeguard from the Commonwealth's perspective.
While s 35(4) of the Atomic Energy Act contemplated that Territory laws could grant rights in prescribed substances, the sub-section was not intended, in my view, to operate as an independent grant of power to the legislative authority for a Territory, to make laws providing for the grant of rights in prescribed substances. Rather, s 35(4) of the Atomic Energy Act removed a barrier that otherwise might have arisen to the operation of a Territory law, authorising the grant of rights in prescribed substances, by reason of the Commonwealth's title to all prescribed substances in that Territory. Any Territory law authorising the grant of such rights would have to find support in other legislation, such as s 6 of the Self-Government Act.
It is now necessary to turn to s 41(4) of the Atomic Energy Act, introduced in 1978. Although having some similarities to s 35(4), the two provisions addressed different questions. Section 35(4) considered the relationship between the Commonwealth's title to prescribed substances in a Territory and rights granted in those substances under the law of the Territory. Section 41(4) addressed the intended operation of s 41 itself and, in particular, the relationship intended between the power granted by s 41(1) and the State and Territory laws operating in the same field.
The formula employed in s 41(4) of the Atomic Energy Act was similar to that sometimes used in Commonwealth legislation to make it clear that the Commonwealth does not intend exclusively to cover a particular field. For example, s 75(1) of the Trade Practices Act (Cth) ("TP Act") provides that Part 5 is "not intended to exclude or limit the concurrent operation of any law of a State or Territory". In The Queen v Credit Tribunal; Ex parte General Motors Acceptance Corporation [1977] HCA 34; (1977) 137 CLR 545, Mason J (with Barwick CJ, Gibbs, Stephen and Jacobs JJ agreed) explained the operation of s 75(1) of the TP Act 1946 as follows (at 563-564):
"...a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.
It is of course by now well established that a provision in a Commonwealth statue evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic, making it impossible for both laws to be obeyed....But where there is no direct inconsistency, where inconsistency can only arise if the Commonwealth law is intended to be an exhaustive and exclusive law, a provision of the kind under consideration will be effective to avoid inconsistency by making it clear that the law is not intended to be exhaustive or exclusive."
Section 41(1) of the Atomic Energy Act was enacted to enable operations in relation to prescribed substances in the States and Territories to be conducted on behalf of or in association with the Commonwealth. The sub-section was necessary to authorise such operations in the Territories, notwithstanding that the Act 1946 and the Atomic Energy Act had declared that the Commonwealth held property in prescribed substances located in the Territories. Even a project conducted on behalf of or in association with the Commonwealth could not necessarily proceed in a Territory merely in reliance on the Commonwealth's property in prescribed substances. For example, the authorised operator might require the extensive powers conferred by s 41(2) of the Atomic Energy Act, such as the power to enter and take possession of land not owned by the Commonwealth, in order to carry out the project successfully.
In my opinion, s 41(4) of the Atomic Energy Act was intended to ensure that the power conferred on the Minister by s 41(1) would not be read as excluding the operation of otherwise valid State and Territory laws permitting the exploitation of prescribed substances, unless there was a "direct inconsistency" between s 41(1) and the State or Territory law. As The Queen v Credit Tribunal shows, a direct inconsistency occurs, for example, if a Commonwealth and Territory law make contradictory provision on the same topic, thereby rendering it impossible for both laws to be obeyed. There might have been such an inconsistency if the Commonwealth Minister had authorised operations on particular land in the Territory under s 41(1) of the Atomic Energy Act and the Territory had granted a mineral lease over the same land for the purpose of uranium mining. But in the absence of a conflict of this kind, s 41(4) removed any barrier that s 41(1) might otherwise have created to the operation of a Territory law relating to the exploitation of uranium resources in that Territory. As I have explained, the Commonwealth retained other means of exercising control over the Territory's actions, such as disallowing a proposed Territory law or withholding the Commonwealth Minister's advice required by s 175 of the Mining Act 1980 to the grant of a mineral lease in respect of prescribed substances. But s 41(4) removed any barrier that might have been created by s 41(1) to the grant of rights in prescribed substances under Territory law, save in very limited circumstances.
Sub-section 35(4): A Temporal Limitation?
Mr Basten, perceiving the difficulty that s 35(4) of the Atomic Energy Act posed for the applicant's argument, submitted that the sub-section was intended to have a very limited operation. He contended that s 35(4) should be read as restricted to interests created under Territory law between the date of commencement of the Act 1946 (11 September 1946) and the date of commencement of the Atomic Energy Act (15 April 1953). Mr Basten relied on what he said was a significant change of wording between s 6(2) of the Act 1946 and s 35(4) of the Atomic Energy Act. While the former provided that the title of the Commonwealth to any prescribed substance was to be subject to any rights granted under a law of a Territory "after the commencement of this Act", s 35(4) substituted a reference to "rights granted after 10 September, 1946". Moreover, Mr Basten suggested that the change of wording in s 6(2) of the Act 1946 was deliberate and was designed to accommodate the broader, or at least potentially broader, definition of the expression "prescribed substance" in the Atomic Energy Act. In other words, s 35(4) was intended to provide for rights created under the law of a Territory, before the enactment of the Atomic Energy Act, in respect of minerals which became prescribed substances only by reason of the expanded definition in the Atomic Energy Act.
I do not think that s 35(4) contains an implicit temporal limitation of the kind suggested by Mr Basten. I do not attribute any significance to the substitution of a date in s 35(4) of the Atomic Energy Act for the expression "after the commencement of this Act". The substitution merely reflects the fact that, at the time the Atomic Energy Act was passed, the date of commencement of the Act 1946 was known.
Nor do I attribute any significance to the use of the word "is" in s 35(4) of the Atomic Energy Act. In my opinion, s 35(4) was clearly intended to have a prospective operation. It referred to rights granted "after 10 September 1946", without imposing a time limit on the granting of those rights. More importantly, s 35(4) preserved rights granted after 10 September 1946 in "any substance to which this section applies". The section applied not merely to a substance which was a prescribed substance at the commencement of the Atomic Energy Act (s 35(2) (a)), but to a substance which became a prescribed substance after the commencement of the Act (s 35(3)(a)). There is no textual basis for excluding from the scope of s 35(4) substances which the preceding sub-section expressly included in the expression adopted by s 35(4) itself. Had it been intended to confine s 35(4) in the manner suggested by Mr Basten, it would have been a very simple matter to insert the words "but before the date of commencement of this Act".
The Dual Scheme under the Land Rights Act
I have already referred to Mr Basten's argument that the "dual scheme" established under the Land Rights Act reinforced the applicant's argument that s 41 of the Atomic Energy Act was intended to be the exclusive source of authority for laws authorising the grant of rights in prescribed substances in the Northern Territory. Mr Basten contended that the affect of the respondents' arguments was that the Commonwealth could avoid the requirements of s 41 of the Land Rights Act. That section, it will be recalled, provided that the Atomic Energy Act, or any other Act authorising mining for minerals, did not apply so as to authorise the entry of any person on to Aboriginal land, unless the Governor-General declared that the Minister and the relevant Land Council had consented to the application of the Act, or that the national interest required the application of that Act.
In my opinion, the structure of the Land Rights Act is quite consistent with the view that s 41 of the Atomic Energy Act was intended to be (as the respondents put it) "facultative". One element of the dual scheme governed the case where an authorisation was granted under the Atomic Energy Act, or any other Act of the Commonwealth Parliament authorising mining. In such a case, both the Land Council and the Commonwealth had to consent to the application of the Act in relation to entry on to the land, unless the Governor-General proclaimed that the national interest required the application of the Act: Land Rights Act, s 41. The Land Council was entitled to agree with the Commonwealth for the giving of consent to the application, in consideration of the payment to the Land Council by the Commonwealth of an agreed amount: s 44(1).
The second element of the dual scheme concerned the granting of a "mining interest" under a law of the Northern Territory. The definition of "mining interest", read in conjunction with the definition of "minerals", was wide enough to encompass a lease for the mining of prescribed substances: Land Rights Act, s 3(1). Where the lease of prescribed substances was granted under Territory law, the consent of the Minister and of the area's Land Council was required to the grant, unless the Governor-General declared that the national interest required the grant to be made: s 40(1). Thus, even if a lease for the mining of prescribed substances were granted under Territory law, the consents of the Minister and the Land Council were still required. Moreover, the Land Rights Act provided for the Land Council and the applicant for a mining interest to agree that the Land Council's consent should be given in return for payments by the applicant: s 43(1). Thus, the Land Council could require, subject to the provisions for arbitration in the Land Rights Act, payment in return for its consent, but a payment that was to be made by the applicant rather than by the Commonwealth. In these circumstances, I do not think it advances the analysis to characterise the respondents' argument as enabling the Commonwealth to avoid the requirements of ss 41 and 44 of the Land Rights Act. Rather, the Land Rights Act contemplated that rights to prescribed substances under Aboriginal land might be granted otherwise than under s 41 of the Atomic Energy Act or some other Commonwealth Act authorising mining.
In the present case, there was no dispute that the Commonwealth Minister gave his consent, as required by s 40(1)(a) of the Land Rights Act. Nor was there any dispute that the Northern Land Council consented to the proposed grant of the mineral lease by the Northern Territory, pursuant to s 43 of the Land Rights Act.
Legislative History
Mr Basten submitted that the legislative history of the Atomic Energy Act and of related legislation supported the applicant's contention that s 41(1) of the Act was intended to be the exclusive source of authority for the exploitation of prescribed substances located in a Territory. In my view, the legislative history, to the extent it is helpful, tends to support the contrary view.
The Minister's second reading speech for the Atomic Energy (Control of Materials) Bill stressed the general realisation in the international community that the problem of control of atomic energy had to be tackled "immediately and internationally": Cth Parl Deb, HR, 12 July 1946, at 2476. He continued (ibid):
"It appears to be equally agreed...that, within each country, there should be public control of the basic raw materials and their treatment. That is, there must be governmental control of the holdings, development, manufacture, export or import of these substances. For any system of control of atomic energy must be based...upon the certainty that their use is in public hands responsive to public directions and policy."
This statement is of limited value, if any, in interpreting s 41 of the Atomic Energy Act 1946 or, indeed, in construing the Act as it stood in 1982. The forerunner to s 41, s 13A of the Act 1946 , was not introduced until 1952. Moreover, the Minister, in his second reading speech on the Bill stated that, although the Commonwealth Parliament would be "recreant to its trust" if it did not exercise a general control or supervision over all Australian sources of uranium,
"[h]ow complete that supervision or control will require to be must be determined from time to time and according to circumstances. The present bill is an enabling measure which sets up the framework of control" (at 2477).
This language is consistent with the acknowledgment in s 6(2) of the 1946 Act 1945 that the title of the Commonwealth to prescribed substances would be subject to rights created under Territory law. It is also consistent with the fact that, as the Minister noted, legislation was already in place in South Australia controlling the exploitation of uranium in that State: Mining Act Amendment Act (SA), s 4, inserting Part 9A into the Mining Act 1930 (SA). In short, the legislation established a framework of controls, but did not create a regime whereby exploitation of the resource was to be undertaken exclusively by the Commonwealth.
Section 13A was introduced into the 1946 Act 1952 by the Atomic Energy (Control of Materials) Act (Cth). As the second reading speech for the 1952 Bill explained, it had "become necessary to take active steps to win the uranium" to be found in Australia, particularly in the Territories: Cth Parl Deb, HR, 21 May 1952, at 614. The then existing powers (1946 Act, ss 10-13) were thought not to be sufficiently clear-cut and specific for the purposes the Government had in mind: ibid. Accordingly,
"[t]he purpose of the bill is to extend the powers conferred upon the Commonwealth by the [1946 Act] to make it more convenient for persons authorised by the Government to go upon land and mine uranium on behalf of the Commonwealth" (at 615).
There is nothing in this material to suggest that s 13A was to be anything other than an enabling provision, intended to assist in the exploitation of a newly important resources. The framework of control, as far as Territories were concerned, was created by the vesting of property in the Commonwealth, the Commonwealth's control over Territory legislation and the specific powers conferred by the 1946 Act.
As I have previously noted, the enactment of the Atomic Energy Act 1978 in 1953 was regarded as necessary by discoveries of uranium, particularly in the Northern Territory, and the perceived need to exploit those resources for defence and industrial purposes: Cth Parl Deb, HR, 19 March 1953, at 1390. In particular, the Minister's second reading speech noted (at 1391) that the Government had decided to develop the Rum Jungle area as quickly as possible "and that the best way to do so was to engage the services of an experienced and reputable Australian mining company". Once again, there is nothing in the Minister's speech to suggest that the legislation was intended to preclude exploitation of uranium resources otherwise than "on behalf of the Commonwealth" (the expression used in s 41(1) as originally enacted). On the contrary, the Minister reported (at 1392) that
"[t]he question of private prospecting and mining in Commonwealth territories has been under close examination by the Government for some time. At the request of the Government, the Atomic Energy Commission has now formulated proposals, embodying a policy for surveying and prospecting, designed to stimulate private prospecting and the opening up of fresh uranium fields by private enterprise. These proposals will be considered by the Government in the near future, and announcements will be made."
As I have already pointed out, the Mining Ordinance of the Northern Territory was amended shortly after the enactment of the Atomic Energy Act specifically to authorise the Administrator to grant leases for the purposes of mining prescribed substances. This is of course consistent with the view that the Atomic Energy Act was not intended to preclude the grant of rights in prescribed substances under Territory law. As was pointed out in argument, it is clear from Newcrest Mining v Commonwealth (which concerned mining tenements in the Coronation Hill area) that mining leases were granted in the Territory under the Mining Ordinance, so as to permit the mining of uranium: see, for example, the history of MLN 19, given by French J, at 348-349.
I have previously explained the nature of the 1978 and 1980 amendments to the Atomic Energy Act, in particular to s 41, brought about in consequence of the then Government's decision to develop the Ranger deposit. I shall not repeat the explanation. Mr Basten contended that the decision to amend the Atomic Energy Act showed that the Act was never intended to support mining of uranium on a commercial basis and that amendments were required to ensure that the Ranger project could proceed.
The Second Ranger Report and the second reading speeches for the bills amending the Atomic Energy Act demonstrate that doubts about whether the Ranger project could be authorised under s 41(1) of the Atomic Energy Act (in its unamended form) led to the amending legislation. But the fact that the Government of the day chose this legislative route, rather than attempt to achieve the same result under Territory law, does not demonstrate that the Atomic Energy Act was intended to be the exclusive source of power for the exploitation of uranium resources in the Northern Territory. The protracted inquiry into the Ranger project and the desire of the Ranger joint venturers for security of tenure doubtless influenced the Government to take the view that the Atomic Energy Act "could provide an appropriate basis for mining operations at Ranger": Cth Parl Deb, HR, 10 April 1978, at 1294. This decision was implemented by legislation amending the Atomic Energy Act, including the statutory fiction ultimately upheld in Northern Land Council v The Commonwealth (No 1).
There is nothing in the amendments to the Atomic Energy Act, nor in the extraneous materials, to suggest that rights could not be granted in respect of prescribed substances under Territory law. Indeed, at the time the 1978 and 1980 amendments to the Atomic Energy Act were debated and enacted by the Parliament, the Mining Ordinance (which continued in force after self-government until repealed in 1982) specifically provided for leases of prescribed substances. Section 7A of the Mining Ordinance, which had come into force in 1979, required the Territory Minister to exercise his or her powers in respect of prescribed substances in accordance with the advice of the Commonwealth Minister administering s 41 of the Atomic Energy Act. Leases providing for the mining of prescribed substances had been granted under Territory law and, as Newcrest Mining shows, were in force in the Northern Territory. This state of affairs was reflected in an observation by the Minister introducing the Atomic Energy Amendment Bill (No 2) , that the holders of an authority under the Atomic Energy Act 1980 should not be disadvantaged in respect of security of tenure "in comparison with prospective competitors": Cth Parl Deb, HR, 16 November 1978, at 2920. This was a reference to leases granted to companies or individuals under Territory law.
THE TERRITORY'S POWERS TO AFFECT PRESCRIBED SUBSTANCES
The Issue
The second question is whether the Mining Act was capable of operating so as to enable the Territory Minister to grant a lease in respect of prescribed substances. Had I accepted the applicant's submission on the construction of the Atomic Energy Act 1946 , it would have been necessary to approach the second question on the basis that the Atomic Energy Act provided the exclusive source of power to authorise the exploitation of prescribed substances within the Territory. However, in view of the conclusion I have reached, the second question must be approached on the basis that the Atomic Energy Act did not necessarily preclude the grant of rights in respect of prescribed substances under Territory law.
The applicant argued that, even if her submission on the construction of the Atomic Energy Act were not accepted, nonetheless a law of the Territory could not grant rights in respect of prescribed substances. As I followed Mr Basten's submissions, the steps in the argument were these:
* The Commonwealth acquired property in prescribed substances in the Northern Territory through the operation of the Act 1988 and the Atomic Energy Act. It retained that property at all times through the statutory provisions and dealings I have already described. Under the principle stated in Cudgeon Rutile, the Commonwealth's interest in the prescribed substances could be disposed of only pursuant to a power conferred by statute.
* The Self-Government Act, despite the grant of legislative power in s 6, did not confer power on the Territory legislature to make laws with respect to prescribed substances vested in the Commonwealth. This was because s 69(4) of the Self-Government Act, which vested all interests of the Commonwealth in respect of minerals in the Territory as from the commencement date of the Act, expressly excepted "prescribed substances within the meaning of the Atomic Energy Act". The exception was intended to limit the legislative power of the Territory.
* Even if the Cudgeon Rutile principle did not apply to minerals in which the Commonwealth had property, s 69(4) of the Self-Government Act evinced an intention that the Territory should not be able to legislate with respect to Commonwealth property in prescribed substances. In the case of inconsistency between a Commonwealth law and a Territory law, the former prevails.
The respondents relied on the grant of power to the Northern Territory legislature, in s 6 of the Self-Government Act, "to make laws for the peace order and good government of the Territory". They contended that this grant of "plenary" power empowered the Territory to make laws authorising the grant of rights in prescribed substances, notwithstanding that the Commonwealth retained property in those substances after the Self-Government Act came into force.
Section 6 of the Self-Government Act
Section 6 of the Self-Government Act was enacted pursuant to the powers conferred on the Commonwealth Parliament by s 122 of the Constitution. The effect of the Self-Government Act, as Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248, shows, was to create a legislature separate from the Commonwealth Parliament
"so that the exercise of its legislative power, although derived from the Commonwealth Parliament, is not an exercise of the Parliament's legislative power":
Svikart v Stewart [1994] HCA 62; (1994) 181 CLR 548, at 562.
The authorities establish that the scope of the power conferred by s 6 is broad. In Capital Duplicators, a case concerned with s 22(1) of the Australian Capital Territory (Self-Government) Act (Cth), the joint judgment by Brennan, Deane and Toohey JJ said this (at 281):
"Enactments are made under a power to make laws `for the peace, order and good government' of the Australian Capital Territory. Such a power has been recognised as a plenary power, as this Court pointed out in Union Steamship Co of Australia Pty Ltd v King [(1988) [1988] HCA 55; 166 CLR 1, at 9] `even in an era when emphasis was given to the character of colonial legislatures as subordinate law making bodies'. The terms in which s 22 confers power on the Legislative Assembly show - to adapt the language of Powell v Apollo Candle Co [(1885) 10 App Cas 282, at 289] - that the Parliament did not intend the Legislative Assembly to exercise its powers `in any sense [as] an agent or delegate of the...Parliament, but...intended [the Legislative Assembly] to have plenary powers of legislation as large, and of the same nature, as those of Parliament itself'".
Their Honours cited with approval a passage from the judgment of Wilson J in R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, at 279, addressing the scope of s 6 of the Self-Government Act:
"Section 6 invests the Legislative Assembly with power to make laws for the peace, order and good government of the Territory, a power which in my opinion, subject to the limits provided by the Act, is a plenary power of the same quality as, for example, that enjoyed by the legislatures of the States. The constitution of the Territory as a self-government community is no less efficacious because it emanates from a statute of the Parliament of the Commonwealth than was the constitution of the Australian colonies as self-governing communities in the nineteenth century by virtue of an Imperial statute."
See also Wake v Northern Territory (1996) 109 NTR 1 (S Ct NT/FC), at 7-8.
In Svikart v Stewart, the joint judgment (Mason CJ, Deane, Dawson and McHugh JJ) made it clear that a Territory legislature, acting under provisions such as s 6 of the Self-Government Act, could legislate with respect to activities taking place on Commonwealth owned land. Their Honours said this (at 563):
"As Capital Duplicators Pty Ltd v Australian Capital Territory shows, there may be some qualifications to the power to make laws under s 122 which are to be found elsewhere in the Constitution, but which as yet remain unidentified but, putting to one side the special considerations applicable to the `seat of government', there is nothing elsewhere in the Constitution which would inhibit s 122 so as to prevent it conferring power upon a Territory legislature to legislate with respect to Commonwealth places in a Territory. And if s 52(i), which is the source of the exclusive power to make laws with respect to Commonwealth places, does not confine the Parliament's power under s 122 because the places referred to are places in a State, then there is no reason why, in a Territory, a separate legislature should not have power conferred upon it by the Parliament to legislate with respect to places acquired by the Commonwealth within the Territory."
As Black CJ and Foster J pointed out in The Commonwealth v Newcrest Mining (WA) Ltd (1995), 58 FCR 167 (FCA/FC), at 180, there may be a difference between laws which govern behaviour of individuals on Commonwealth land and laws which affect title adversely to the Commonwealth. Mr Basten relied on that distinction in the present case.
The power conferred by s 6, although broad, is not unlimited. Section 6 itself is expressed to be "[s]ubject to this Act", meaning that it must give way if inconsistent with or repugnant to any provision of the Act: Commonwealth v Newcrest Mining, at 181, per Black CJ and Foster J. A more general principle was stated by Brennan J (with whom Deane and Kelly JJ agreed) in Webster v McIntosh [1980] FCA 128; (1980) 49 FLR 317 (FCA/FC), at 320-321:
"The power to make Ordinances conferred by s 12 [of the Seat of Government (Administration) Act 1910 (Cth)] does not authorise the making of an Ordinance which is repugnant to an Act of Parliament...and s 12 does not sustain an Ordinance if it becomes repugnant to a later Act of the Parliament. To the extent to which an Ordinance is repugnant to an Act, the Ordinance has no operation".
The principle applies notwithstanding the passage of the Self-Government Act 1946 : The Queen v Kearney; Ex parte Japanangka [1984] HCA 13; (1984) 158 CLR 395, at 418-419, per Brennan J; Attorney-General for the Northern Territory v Hand (1989) 25 FCR 345 (FCA/FC), at 366-367, per Lockhart J, at 386, per Beaumont J, at 402-403, per von Doussa J.
Section 69(4) of the Self-Government Act
In the light of these restrictions on the scope of s 6 of the Self-Government Act, the critical question is whether s 69(4) of the Self-Government Act qualified the grant of legislative power conferred on the Northern Territory legislature by s 6 of the Self-Government Act. In support of the applicant's contention that it did so, Mr Basten relied on the reasoning of Black CJ and Foster J in Commonwealth v Newcrest Mining. Mr Basten submitted that their Honours' reasoning on this point was unaffected by the successful appeal to the High Court from the decision of the Full Court.
One question in Newcrest Mining was whether a right of renewal of a lease, a right conferred by the Mining Ordinance of the Northern Territory, applied to leases granted under the Mining Ordinance, where the land subject to the lease had been acquired by the Commonwealth from the Territory pursuant to s 70 of the Self-Government Act. The reasoning of their Honours is contained in the following passage (at 182):
"Section 69, broadly speaking, operates to vest in the Northern Territory, as the newly created polity, all land within its boundaries which, at the time of self-government, was in the ownership of the Commonwealth. Section 70, again speaking broadly, enables the Commonwealth to reacquire, within one year, and without compensation to the Territory, any part of that land for an approved public purpose. So far as the interests of third parties in the land are concerned, those interests previously held from the Commonwealth before self-government, become held from the Territory thereafter. In the case of land reacquired by the Commonwealth under s 70 those very same interests are then to be held from the Commonwealth. In each case they are to be held `on the same terms and conditions' as those on which they were previously held. The meaning and content of this expression will be considered later.
All these provisions are made pursuant to the Commonwealth's legislative power under s 122 of the Constitution. Under that power it can validly legislate fore the acquisition of property of the Territory and of private individuals without the requirement imposed in relation to the property of the State or of persons within a State by s 51(xxxi) of the Constitution. No `just terms' relating to compensation or otherwise are required. We are unable to characterise these sections as mere conveyancing provisions. In our view, their proper construction requires the conclusion that the Commonwealth legislature, in passing s 70, was evincing a legislative intention of providing exhaustively for the rights and obligations of the Commonwealth in respect of reacquired lands, and of persons holding previously acquired interests in those lands. It was not intended that the Northern Territory legislature would thereafter be competent to deal with those lands or those interests by its own legislation under s 6, nor that the continuance, by force of s 57(1) and (3), of pre-existing legislation of the nature of the Mining Ordinance, would have any effect upon those lands and those interests."
In the High Court, Gummow J, a member of the majority, analysed the operation of the Self-Government Act in terms with which Toohey, Gaudron and Kirby JJ agreed. Gummow J did not find it necessary to consider the effect of s 70(6) of the Self-Government Act, as Black CJ and Foster J had done in the Full Court. His Honour took the view that the subsection could not apply to the land which the Commonwealth had acquired in that case. This conclusion flowed from the fact that the notice of acquisition in Newcrest Mining v Commonwealth was published under s 70(3) of the Self-Government Act a few days before s 69 came into force. (Section 70 of the Self-Government Act came into force earlier than the other provisions of the Act.) So far as the land covered by the notice of acquisition was concerned, there had never been any "interests...held from the Territory immediately before the acquisition" within the meaning of s 70(6). This was because the Territory had not come into existence as a separate entity until the major provisions of the Self-Government Act had come into force and thus it did not exist at the date of publication of the notice of acquisition. (There may be a question as to whether Gummow J's reasoning gives full effect to s 70(4) of the Self-Government Act, which provided that the notice was not to take effect until immediately after the commencement of s 69, but this question need not be pursued here.)
Gummow J, although not addressing the approach to s 70(6) taken by Black CJ and Foster J, made a general observation (at 1405) that ss 69 and 70
"were directed not to the abrogation of or subtraction from existing private rights created by or pursuant to laws continued in force by s 57 [of the Self-Government Act]. Rather their primary concern was with the adjustment of rights between the Commonwealth and its creation, the new polity established by the Self-Government Act."
This observation does not appear to be consistent with the view of Black CJ and Foster J, that s 70 was intended to provide exhaustively, inter alia, for the rights and obligations of persons holding previously acquired interests in lands acquired by the Commonwealth. If this is the correct reading of Gummow J's judgment, it is difficult to see how s 70 could be regarded as an exhaustive statement of the rights and obligations of third parties.
Notwithstanding this apparent inconsistency, I am prepared to assume for the purposes of this case that the reasoning of Black CJ and Foster J relating to s 70(6) of the Self-Government Act is unaffected by the approach taken by the majority of the High Court in Newcrest Mining v Commonwealth. Even so, I do not think that their conclusion, that s 70(6) limits the scope of s 6 of the Self-Government Act, requires that s 69(4) have the same effect.
Section 69(4) of the Self-Government Act vested in the Territory all Commonwealth interests in minerals, subject to an exception for prescribed substances. The sub-section was enacted against the background of an established legislative regime, whereby the Commonwealth's property in prescribed substances co-existed with Territorial legislation authorising the creation of rights in relation to those substances. The exception in s 69(4) preserved the position obtaining prior to self-government, namely, that the Commonwealth retained property in prescribed substances by force of the Act 1946 and the Atomic Energy Act. Prior to self-government, as I have explained, the Commonwealth's title to prescribed substances was subject to rights granted under Territory laws with express reference to those substances. This subjection flowed from the terms of s 35(4) of the Atomic Energy Act, which continued to apply after the Self-Government Act came into force. It was reinforced by s 41(4) of the Self-Government Act. In these circumstances, in my opinion, there is no basis for attributing to Parliament the intention that s 69(4) withheld from the Territory legislature precisely that law-making authority in relation to prescribed substances as the Territory legislature had prior to self-government. Section 69(4) merely preserved the title of the Commonwealth in prescribed substances. Just as that title was subject to the law-making authority of the Territory prior to self-government, so it was thereafter.
The Commonwealth's Executive Powers
The respondents disputed the applicant's contention that the Commonwealth could dispose of interests in its own property only pursuant to statutory authority. Mr Walker, on behalf of the Minister and the Commonwealth, submitted that the Commonwealth has executive power under s 61 of the Constitution to dispose of or otherwise deal with property vested in the Commonwealth. He distinguished Cudgeon Rutile, as concerning statutory provisions specifically vesting the control and management of the "waste lands of the Crown" in Colonial legislatures: see Williams v Attorney-General [1913] HCA 33; (1913) 16 CLR 404, at 448-456, per Isaacs J; Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, at 208-212, per Brennan J. He said that the power to dispose of "waste lands" was quite different from the Commonwealth's power to deal with its own property and that the Act and the Atomic Energy Act had vested property in prescribed substances in the Commonwealth. Mr Young, on behalf of ERA, developed similar submissions.
In view of the conclusions I have reached, I do not think it is necessary to explore these issues. Even if the applicant's contention, that legislative authority is required for a valid disposition of property vested in the Commonwealth, is correct, in my view such authority was provided by the combined operation of the Atomic Energy Act, the Self-Government Act and the Mining Act 1980.
Territory Laws Affecting Commonwealth Title
I have referred to Mr Basten's reliance on the tentative distinction drawn by Black CJ and Foster J in Commonwealth v Newcrest Mining, between Territory laws governing the behaviour of individuals on Commonwealth land and Territory laws which affect title adversely to the Commonwealth. Their Honours did not need to develop the distinction, or the basis for it in their judgment. However, they had referred earlier in their reasons to the judgment of Wilcox J in Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274 (FCA/FC), at 297, Wilcox J there applied what he described as the "fundamental principle that the Crown in right of a State or Territory cannot bind the Crown in right of the Commonwealth". Wilcox J cited in support remarks of Fullagar J in Commonwealth v Bogle [1953] HCA 10; (1953) 89 CLR 229, at 259-260, where his Honour expressed the view, inter alia, that the Parliament of a State could not lawfully prescribe the uses which might be made by the Commonwealth of its own property.
The remarks of Fullagar J in Commonwealth v Boyle have recently been critically analysed by the High Court in Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority [1997] HCA 36; (1997) 71 ALJR 1254: see especially at 1269-1270, per Dawson, Toohey and Gaudron JJ at 1275-1276, per McHugh J. Moreover, there is a question, raised but not resolved in Newcrest Mining v Commonwealth, whether the principles governing the power of a State Parliament to enact legislation binding the Commonwealth apply to Territory legislation which purports to bind the Commonwealth. As French J said in Newcrest Mining v Commonwealth, at 409, in each case "the constitutional context is different".
I do not think that these questions need to be resolved in the present case. It is open to the Commonwealth Parliament, in the exercise of the power conferred by s 122 of the Constitution, to empower a Territory legislature to enact legislation creating or authorising the creation of rights adverse to the Commonwealth's title to land or minerals in the Territory. As I have explained, ss 35(4) and 41(4) of the Atomic Energy Act, read with s 6 of the Self-Government Act, had this effect in relation to prescribed substances vested in the Commonwealth. In particular, s 35(4) of the Atomic Energy Act specifically removed any barrier that otherwise might have prevented the Territory legislature granting rights adverse to the Commonwealth's title, provided the Territory legislation was "with express reference to [prescribed substances]". In those circumstances, in my opinion, the conferral of plenary legislative power by s 6 of the Self-Government Act was sufficient to give power to the Northern Territory legislature, subject to the constraints in the Self-Government Act (such as the Governor-General's power of disallowance), to enact a law granting or authorising the grant of rights in prescribed substances adverse to the property of the Commonwealth.
Whatever construction is adopted of the words "with express reference to that substance", in s 35(4) of the Atomic Energy Act, I think they are satisfied in the present case. The Jabiluka Mining Lease was expressed to be granted pursuant to the Mining Act 1980. Section 60 empowered the Minister, in his discretion, to grant an applicant a mineral lease for a term of twenty-five years. However, s 175 of the Mining Act 1980 provided that, subject to an irrelevant exception but notwithstanding anything else in the Act, the Minister was to exercise his powers in accordance with the advice of the Commonwealth Minister administering s 41 of the Atomic Energy Act, and not otherwise. The account of events preceding the execution of the Lease shows that the Territory Minister's powers were exercised in accordance with the advice of the Commonwealth Minister. No issue has been taken in relation to the forty-two year term of the Lease.
If the words in s 35(4) of the Atomic Energy Act were intended to refer to legislation "with express reference to [prescribed substances]", the Mining Act 1980 satisfied that description. If the words were intended to refer to the grant of a lease itself, the Jabiluka Project Lease, satisfied the description. The Lease explicitly granted the lessees the right to mine uranium and other prescribed substances as defined in the Atomic Energy Act. I did not understand Mr Basten to submit to the contrary.
EXECUTIVE AUTHORITY
The final question is whether the Territory Minister had executive authority to execute the Jabiluka Project Lease on behalf of the Northern Territory. The respondents relied on the grant of executive authority to the Ministers of the Territory made by reg 4 of the Self-Government Regulations, the terms of which have been set out earlier. In particular, the respondents relied on reg 4(5)(b) and (f). For convenience, I set out those provisions again:
"(5) The Ministers of the Territory are also to have executive authority under section 35 of the Act in respect of the following matters:
...
(b) matters in respect of which duties, powers, functions or authorities are expressly imposed or conferred by or under another Act in force in the Territory, or by or under an enactment or an agreement or arrangement referred to in paragraph (f), on the Administrator or a Minister or officer of the Territory;
...
(f) agreements and arrangements between the Territory and the Commonwealth or a State or States, including the negotiations and the giving effect to any such agreement or arrangement by the Territory by way of enactment, regulations or other instrument, or otherwise."
I do not think it is correct to read reg 4(5)(b) as conferring executive authority on a Territory Minister in relation to any matter in respect of which duties, powers, functions or authorities are imposed, conferred by or under an enactment. The word "enactment" is, in my opinion, qualified by the requirement that it be an enactment "referred to in paragraph (f)". This is indicated by the absence of a comma after the word "enactment". More importantly, the broader reading would undercut the elaborate scheme set out in reg 4.
However, pars (b) and (f), read together, conferred the necessary executive authority on the Territory's Minister for Mines and Energy to execute the Jabiluka Project Lease. The agreement between the Commonwealth and the Northern Territory of February 1982 required that in all matters under the Mining Act 1980 relating to prescribed substances in the Territory the Territory Minister would exercise and perform all duties, powers and functions in accordance with the advice of the responsible Commonwealth Minister and not otherwise. Section 175 of the Mining Act 1980 (which came into force shortly after the agreement) gave effect to the agreement, by requiring the Territory Minister, in respect of a prescribed substance, to exercise his or her powers in accordance with the advice of the Commonwealth Minister. This linkage between the agreement and the enactment reflected the link between the agreement of March 1979, which was to the same effect, and s 7A of the Mining Ordinance, introduced in January 1979.
The Territory Minister had executive authority (to use the awkward language of reg 4(5)(b)) in respect of matters in respect of which duties, powers or functions were imposed or conferred by or under an enactment of the kind referred to in par (f). The Mining Act 1980 was such an enactment, because it gave effect to the agreement of February 1982 between the Commonwealth and the Territory. Section 175 of that Act imposed duties on the Territory Minister in relation to the grant of a lease of prescribed substances. The Jabiluka Project Lease was a lease of this description. Thus the execution of the Jabiluka Project Lease was a matter in respect of which duties and functions were imposed or conferred by a Territory enactment of the kind referred to in reg 4(5)(f).
Mr Basten's principal argument against this conclusion was that executive authority could not be conferred on Territory Ministers in respect of matters relating to prescribed substances, since the Mining Act 1980 could not validly address such matters. For reasons given earlier, I do not accept that argument.
COSTS
I invited the respondents' counsel to address the question of whether some allowance should be made, in any costs order, for the fact that the respondents appeared to have substantially the same interests in the issues addressed in this judgment (as distinct from the Estoppel Questions). Mr Sullivan pointed out that the interests of the parties were not necessarily identical because, for example, the Commonwealth and the Northern Territory did not share precisely the same approach to the capacity of the Territory legislature to bind the Commonwealth. It is also necessary to take into account the observation of Burchett J in Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166, at 169, that
"a respondent with a real interest in the issue an applicant chooses to contest is not disentitled from incurring the expense of appearing to defend the matter because someone else also appears."
I think it was reasonable for each of the respondents to appear in the proceedings and to take an active part. However, I think that some modest allowance should be made in the costs order to reflect the fact that greater co-ordination among the respondents could have reduced the overlap in their submissions, without disadvantaging any of them. Had this been done, the time required for preparation and presentation of the cases may well have been reduced. In saying this, I do not intend to be critical of the submissions made by the respondents; each was detailed and helpful. But I think justice would be done if the applicant were required to pay seventy-five per cent of the costs of each respondent.
CONCLUSION
For the reasons I have given, the applicant's challenge to the validity of the Jabiluka Project Lease fails. The consequence is that the application should be dismissed. The orders previously made for the separate determination of the Estoppel Questions cannot detract from this conclusion, since the issues to be decided separately related only to alternative defences pleaded by ERA. For the reasons I have already given, the applicant should be ordered to pay seventy-five per cent of the costs of each respondent.
I propose to stand the matter over for seven days. This will enable any party wishing to make an application to do so before the orders are pronounced.
|
I certify that this and the preceding fifty-eight (58) pages are a true copy of the Reasons for Judgment herein of the Honourable
Justice Sackville |
Associate:
Dated: 11 February 1998
|
Counsel for the Applicant: | Mr J Basten QC with Mr N J Williams |
| Solicitor for the Applicant: | Bruce Donald |
| Counsel for the First and Second Respondents: | Mr B Walker SC with Mr S Gageler |
| Solicitor for the First and Second Respondents: |
Australian Government Solicitor |
| Counsel for the Third Respondent |
Mr N J Young QC with Mr N Mukhtar |
| Solicitor for the Third Respondent:
Counsel for the Fourth Respondent:
Solicitor for the Fourth Respondent:
Date of Hearing: | Corrs Chambers Westgarth
Mr A J Sullivan QC with Ms R Webb
Freehill Hollingdale & Page
16 & 17 December 1997 |
| Date of Judgment: | 11 February, 1998. |
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