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Commentary
Mark Newton
The common law of England allows the Crown certain rights over mines of gold and silver, otherwise known as the ‘mines Royal’.[1] These rights adhere to the Crown as part of the royal prerogative. If the threefold classification of prerogatives put forth by Evatt is adopted,[2] then these royal mines are usefully described as being the subject of a proprietary prerogative. There are several such proprietary prerogatives; for example, Evatt refers to:
the prerogatives of the King in respect of his ownership of lands, his right to royal metals, to treasure trove, to escheats, to the ownership of the foreshore and the bed of the sea within territorial limits, and to royal fish — that is, whale and sturgeon.
The decision in Mabo (No 2) overturned the received doctrine concerning the King’s ownership of waste lands.[3] Our purpose here is to see whether the recognition of native title at common law should also throw new light onto the status of another of the sovereign's perquisites — that is, the right to mines of gold and silver. And while it is true that to this day the common law has always jealously guarded these mineral rights of the Crown,[4] it is equally true that the question ought now to be regarded as an open one. Decisions on this aspect of the royal prerogative were all taken well before our law had come to recognise native title to lands; as such, the notion that this aspect of the law is settled may be misguided. The prerogative right has always been thought to confer absolute ownership of gold and silver mines. Now that prior indigenous ownership of the land is recognised, further and deeper inquiry into the nature of the prerogative right has become imperative. The purpose of this commentary, then, is to review the status and scope of the prerogative right to the royal metals.
Such review is plainly important in as much as it may uncover valuable native title interests at common law. However, it should be noted at the outset that in respect of mineral ownership in this country, the doctrines of the common law have very largely been ousted by legislation, with the result that today[5] ‘The general rule is that the Crown (in right of the State) owns all minerals’. This fact notwithstanding, the royal metals may well be an exception to the general rule. It would be wrong to ascribe this to mere legislative oversight; in view of the prerogative any legislative assertion of title to gold and silver would doubtless have seemed ‘otiose’[6]. That the royal metals may be exceptional in this respect implies that their ownership may yet be governed by the common law. This would then leave open the possibility that the Crown in right of its prerogative is not absolute owner of all gold and silver mines. In order to test this hypothesis, it will be convenient to begin by essaying the origins and doctrines of the prerogative, both in the law of England and in our local law — since here, as in much else, ‘the question of origin throws light on the question of validity’.[7]
Although the sovereign's right to mines of gold and silver probably has a much more ancient origin, the genesis of the modern understanding of this right begins with the Case of Mines, decided in 1567. In that case, the prerogative was said to have ‘appeared by several old charters and patents’,[8] which evidence was supplemented by several policy arguments, intended to demonstrate the wisdom in a rule which gave the King rights to mines of gold and silver. These arguments are collected in the Californian case, Moore v Smaw.[9] The first related to the excellence of the thing: since gold and silver are the most excellent of objects the King should own them, being in the eye of law the most excellent of persons. A similar logic was sometimes invoked to suggest that the prerogative, in keeping with the King’s dignity and pre-eminence, was calculated to prevent a subject becoming unduly rich: ‘it is inconvenient that a subject should have the silver mines in his grounds, for so he might become richer than the King’.[10]
A second argument referred to the necessity of the thing: it was viewed as necessary that the King keep treasure for the maintenance of order and the ‘sinews of war’.[11] Lastly was the convenience of the thing, for coinage and other like purposes.
These quaint arguments probably obscured rather more base motives, as the Court in Moore v Smaw remarked:
The right of the Crown, whatever may be the reasons assigned for its maintenance, had in truth its origin in an arbitrary exercise of power by the King, which was at the time justified on the grounds that the mines were required as a source of revenue.[12]
Whatever, it is clear that the prerogative right originally owed more to expedience than to legal niceties. Justice Jacobs, albeit in a different context, has remarked that the King’s prerogative over the seas came about ‘because that King asserted an excellence or pre-eminence’; his claims ‘depended on high politics’ and ‘on considerations of power and expediency’.[13] These remarks apply, mutatis mutandis, to the origin of the King’s prerogative claims to gold and silver mines. There can thus be little doubt that at one time the prerogative right had a political flavour. But neither is there any doubt that, whatever its origin, and however political, the prerogative right to the royal metals was part of the settled law of England at the time of the colonisation of New South Wales. Whether that prerogative was also part of the common law that the settlers carried to the Australian colonies is a separate question to which we now turn.
In order to ascertain whether a prerogative is received into the laws of a colony, it is commonplace to divide the prerogatives of the Crown into two parts. The so-called major prerogatives, the majora regalia, are incidental to sovereignty and take root immediately the mantle of English sovereignty is thrown over a territory. These major prerogatives inhere in the sovereign political capacity and are referable to the ‘primary and inalienable functions of constitutional government’.[14] But not all prerogatives answer this description: ‘We must not confuse prerogative and sovereignty: often these coincide, sometimes they do not’ .[15]
Those prerogatives that do not coincide with the sovereignty are known as minor prerogatives, or minora regalia. Minor prerogatives are not coincidental with sovereignty in the sense that they do not prevail ‘in every part of the territories subject to the English Crown’[16], as do the major prerogatives. Rather, the minor prerogatives, which typically concern the maintenance of royal revenues, must be received by way of the common law. That is to say, the principles governing the reception of an ordinary doctrine of the common law determine whether a minor prerogative becomes part of the law of a colony.[17] Since the prerogative as to the royal mines is minora regalia, those common law principles will therefore define its origin and status in Australian law.[18]
At common law, the principles that govern the extension of doctrines of English law to a settled colony are well known.[19] The colonists are said to carry with them ‘so much of the English law as is applicable to their own situation and the condition of an infant colony’.[20]
The courts are slow to hold aspects of the common law inapplicable by resort to this principle — a rule of law will only be inapplicable to the extent that it cannot reasonably be applied in the colony.[21] Judicial disquisition as to the benefits or suitability, or otherwise, of the law will not be entered into, since these are properly questions for the legislature to decide.[22] This remains the case even when the policies behind some longstanding common law doctrine seem inappropriate by contemporary standards.[23]
In this context, one finds little reason to doubt that the prerogative to royal metals became part of the law of the colonies. The authorities are not in the least equivocal on the question of the extension of common law prerogatives to the colonies.
The prerogative of the Queen, when it has not been expressly limited by local law or statute, is as extensive in Her Majesty’s colonial possessions as in Great Britain;[24]
The laws ... brought to Australia undoubtedly included all the common law relating to the rights and prerogatives of the Sovereign in his capacity as head of the Realm and the protection of his officers in enforcing them ...[25]
At least as regards the proprietary prerogatives, perhaps the sole indication otherwise is to be found in the case of Baldick v Jackson, which concerned the reception of the prerogative right to royal fish into the law of New Zealand.[26] The ratio decidendi of Stout CJ’s rejection of the prerogative seems to be that it would conflict with customs established prior to English sovereignty and with the guarantee of Maori rights to fish in the Treaty of Waitangi.[27] It is clear, if we leave Baldick v Jackson aside for the moment, that a proprietary prerogative will be received by way of the common law irrespective of the policies that underlaid it.
Hence the certitude with which the prerogative to gold and silver mines has been to applied in the colonies.[28] It does not much matter that the reasons for the prerogative are trivial or base or otherwise inapt. The Californian judges of the mid-19th century discounted the fiscal importance of the prerogative right on the ground that the State’s revenue needs were being adequately served by the power of taxation.[29] Although the fiscal argument can scarcely be any more compelling today, this is irrelevant to the application of the prerogative. Hence, when counsel in Woolley’s Case sought to argue that the prerogative as to royal metals was ‘wholly inapplicable to the Colony of Victoria’[30], because it was no longer necessary to prevent the impoverishment of the Crown, the Judicial Committee responded thus:
Now whatever may be the reasons assigned in the case in Plowden, and whether they approve themselves or not to modern minds, it is perfectly clear that [the prerogative right] has been settled law ...[31]
As such, the only real conclusion open to us is to accept that the prerogative as to the royal metals was received into Australian law upon settlement. Be that as it may, the foregoing survey suggests two further things. One, although questionable or archaic policies in a doctrine of the common law will be received into local law, modification of that received doctrine may yet be warrant. Two, the unusual case of Baldick v Jackson suggests that the rights of indigenous inhabitants ought to carry some weight when royal prerogatives — specifically, the proprietary prerogatives — are at issue. These suggestions are taken up in the next part of this commentary.
It is thus far concluded that the prerogative as to the royal minerals is validly part of Australian law. But the matter does not end here. To close the inquiry now would be to beg questions as to the exact meaning and extent of the prerogative. Our ultimate purpose is to ascertain who owns the royal metals. Acceptance of the prerogative as regards the royal minerals need not dictate ownership of those minerals. Mabo (No 2) established that absolute beneficial ownership of the land did not vest in the Crown at point of sovereignty. The question at issue here is whether the acquisition of sovereignty and subsequent reception of the common law, nevertheless vested ownership of the royal minerals in the Crown. The decision in Mabo (No 2) makes the issue a live one since valuable native title interests may rise or fall on its answer. The threshold questions as to whether native title can properly exist in minerals per se, and extend to the commercial exploitation of those minerals, are amply covered elsewhere.[32] It is submitted that the better view is that, as a matter of law, native title can extend to minerals and to their commercial exploitation. This is but a logical consequence of the principle that the content of native title is left to indigenous law and custom to define.[33] However, it must be said that on these questions, which await determination by the High Court, there is still much legal uncertainty.[34]
So it is assumed, for present purposes, that native title can extend to gold and silver mines. But does the common law recognise such title? Meyers et al have argued that the prerogative extinguished native title to the royal metals.[35] This, with respect, confuses issues in so far as it collapses two distinct questions: one being recognition at common law, and the other, extinguishment, whether by legislative or executive act. Native title might well be recognised as a matter of common law but be found to have been somehow and sometime extinguished. It is extinguished by an exercise of sovereignty, not by the reception of a prerogative at common law:
Aboriginal rights and interests were not stripped away by operation of the common law on first settlement by British colonists, but by the exercise of a sovereign authority over land exercised recurrently by Governments.[36]
The prerogative will defeat native title, if at all, because it precludes recognition of the relevant native title interests.[37] The correct method, then, is to ask whether native title to gold and silver is consistent with the common law as it was received upon first settlement. Use of this method reveals that the existence, at common law, of a prerogative right to the royal metals is in no way fatal to the recognition of native title to those same metals. The remainder of this part of the paper seeks to show why this is the case.
In order to make out the submission it will be useful to look to Mabo (No 2), since the argument put forth in that case is like that which here follows. The rejection of the doctrine of terra nullius as a ‘negative’ basis for the denial of native title did not at once clear the way for common law recognition of native title to land. Rather, several more ‘positive’ bases were presented to defeat native title, the most important of which was the contention that feudal doctrine implied that the Crown, as Paramount Lord, owned all lands at time of settlement.[38] The High Court determined that the feudal doctrine of tenure, by which all land is held mediately or immediately by the Crown, had been received as part of the land law and that it was far too late in the day to suggest otherwise.[39] However, it was further held that the doctrine of tenure, properly construed, did not insist that the Crown be beneficial owner of the soil. Instead, the received feudal doctrine could be supported by the ‘logical postulate’ of a radical sovereign title. When faced with a native title, the Crown’s interest in the soil rose no higher than this radical title and did not amount to beneficial ownership, at least before any exercise of sovereign power.[40] This points the way for the next part of this opinion. As in Mabo (No 2), a proper construction of the received doctrine reveals that the prerogative right to the royal metals does not amount to ownership, nor does it vest in the Crown an interest that is inconsistent with the ongoing rights of the indigenous land owners.
It should, however, be noted at the outset that the decision in Mabo (No 2) concerned a separate, albeit cognate, question — that decision cannot be said to have settled the issues surrounding ownership of the royal metals. Amongst other things, the decision in Mabo (No 2) dealt with the doctrine that the Crown is universal proprietor of lands; this is quite distinct from a doctrine that the Crown holds rights to gold and silver by virtue of its prerogative.[41] Both interests spring from different legal bases; whereas the title to the soil was clearly feudal in origin, the King’s prerogative right to the royal metals can perhaps be said to have ‘adhered to him by virtue of his kingship in its national rather than its feudal aspect’.[42]
An additional point of difference arises on account of the fact that the radical title to lands is a concomitant of sovereignty,[43] whereas we have seen that the prerogative right to the royal metals is not part of the sovereignty. This fact is vitally important in so far as it establishes that our question is a justiciable one, and since no questions of sovereignty are involved, the matter will be cognisable in a municipal court.[44]
The fact that the prerogative is not a concomitant of sovereignty also has a deeper significance. It implies that the Crown is competent to carve interests out of its prerogative, since allowing a subject to hold such interests does not thereby diminish the sovereignty.
Mines are one of the ‘jura coronae or rights of the Crown’ which ‘so long as they are attached to the King are called prerogatives, but when such prerogatives are delegated to a subject they acquire the appellation of franchise’.[45]
Thus conceived, the Crown’s prerogative right to the royal metals may be considered a prima facie one; any presumption that the Crown is entitled to the metals is fairly answered by grant or prescription.[46] This conception of the prerogative right has a twofold relevance. First, just as a grant of a franchise involves no derogation from the sovereignty, neither should a corresponding native title be seen somehow to detract from the sovereignty of the Crown. Indeed, franchises and native title alike would operate as a burden upon the presumptive rights of the Crown. Second, given that the Crown is willing to carve franchise interests out of its prerogative — indeed, the ability of the Crown to part with a minor prerogative is what gives that prerogative its fiscal importance and justifies its existence — it can hardly be argued that as a matter of policy the sovereign should at all times hold the beneficial interest in gold and silver mines.
If the prerogative right of the Crown can thus lawfully be made the subject of a franchise, then there seem no high reasons of principle why it could not also be made subject to native title. There do not seem to be any authorities directly on the point; however, we can nonetheless reason by way of analogy. Recall that as another part of its proprietary prerogatives the Crown is entitled to the foreshore,[47] that is, the land which lies between the high and low water marks.[48] There is some support in decided cases for the contention that native title may subsist over the foreshore, notwithstanding the prerogative. In New Zealand, the issue has been considered on several occasions. The leading authority is In re the Ninety Mile Beach,[49] which arose out of an application to the Maori Land Court for a freehold order over certain foreshore lands. The Court of Appeal there had to consider the submission that the Crown, in right of its prerogative, owned absolutely the foreshore; such ownership would have stripped the Maori Land Court of any jurisdiction to investigate the application. The Court of Appeal unanimously rejected the submission:
There is an attractive simplicity about this argument which for a time appealed to me, but on reflection, I have come to the conclusion that the learned Solicitor-General’s contention is not well founded and that the better view is that in early times the jurisdiction of the Maori Land Court was not limited to the investigation of title to customary lands above high-water mark.[50]
As Hardie Boys J was later to point out, when discussing In re the Ninety Mile Beach, ‘It is clear that the Crown’s prerogative right and Maori customary rights can exist together’.[51]
The proposition that the common law recognises native title over the foreshore ought to be regarded as settled by the case of Attorney-General of Southern Nigeria v Holt.[52] There the Privy Council held that on the acquisition of sovereignty over the island of Lagos, ‘the foreshore became vested in the Crown, subject to the then existing rights of the riparian owners’.
Indeed, the prerogative right of the Crown did not seem even to be an issue in Holt’s case; the incumbent rights of the riparian owners were no more affected by the Crown’s interest in the foreshore than by its radical title to the land.[53] Moreover, the proposition established in this case would appear to be an uncontroversial one — for instance, there seems little doubt that native title may rightly be claimed over the Australian foreshore.[54]
If native title survives the prerogative right to the foreshore, it is not immediately clear why the prerogative right to the royal metals should be any greater obstacle to the recognition of native title. In this connection, some assistance may be taken from jurisprudence of the Supreme Court of California, for that Court at one time had to consider issues such as these as a consequence of the transfer of sovereignty over modern day California by way of cession from Mexico to the United States.[55] In one case, Moore v Smaw, the Court undertook a painstaking survey of the municipal law of the previous sovereign, viz Mexico. But this was not a mere historical essay; it was undertaken to definitely establish that there had been no private interests in gold and silver mines under Mexican law.[56] The obvious inference to be drawn from this is that the Court in Moore v Smaw took the view that such interests would have survived the handover of sovereignty. This all but amounts to a concession that gold and silver mineral interests acquired under Mexican law would have had an ongoing legal effect, notwithstanding the prerogative. Further assistance might also be found in the legal argument in an earlier case, Merced Mining. Counsel in that case submitted that the new sovereign's claim in right of its prerogative would be subject to anterior rights over the royal mines.[57] The upshot of this submission would be to treat the royal metals in the same way as the foreshore, at least as regards anterior rights and interests. As it was, the Court did not deal with this submission, but it does not seem to have excited any particular controversy. This fact, together with the approach of the Court in Moore v Smaw, fairly suggests that native title ought to survive the reception of the prerogative to gold and silver mines. That being so, these Californian cases tend to indicate that this branch of the proprietary prerogative should be regarded much as the right to the foreshore is.
It might nonetheless be argued that the Crown’s rights over the foreshore and the royal mines are, despite their shared prerogative basis, in fact rather different in nature, and so, ought to be treated as such. We have seen that the right to the royal mines adheres to the Crown quite independently of its radical title to the soil: it arises ‘not in respect of the land ... but by the royal prerogative, in distinct and peculiar ownership’.[58] The same cannot be said of the Crown’s rights over the foreshore. The view has been expressed that the claim to the foreshore is merely an adjunct to the Crown’s feudal position as Paramount Lord.[59] So much is assumed by Deane and Gaudron JJ who, in their joint judgment in Mabo (No 2), remark in passing that the Crown’s foreshore rights were derived from the ‘basic tenet that all land was owned by the Crown’.[60] The suggested differences between the foreshore and the mineral rights on this score are probably overstated; to this end, Viscount Radcliffe in Burmah Oil Co Ltd v Lord Advocate[61] assumed that the prerogative right to the royal minerals had its origin ‘in the status of the feudal superior’. Whatever, the notion that there is some important difference between the two perhaps admits of an argument that the comparison between the foreshore and the mineral rights is false and that to allow native title in respect of the royal metals would be disruptive where native title on the foreshore is not. It is submitted that such an argument is a fallacious one, and for several reasons.
In the first place, it has been demonstrated here that the laws of England by and large ‘made the journey from England to Australia’,[62] however outdated the policies of those laws might have been. But it is surely legitimate to modify or confine a doctrine of the common law in its operation because its policies are outmoded by reference to contemporary standards. The record shows that the prerogative right to the royal metals is just such a doctrine. In the course of his judgment in Mabo (No 2), Brennan J rejected the argument that fiscal concerns were reason enough to ignore the just claims of the indigenous inhabitants. Native title is not ‘patrimony of the nation’.[63] This implies that even if the gold and silver mines were today ‘required as a source of revenue’,[64] there is no justification for giving them a status going beyond that allowed the other proprietary prerogatives.
Moreover, the policies that underpin the prerogative to the metals are such that to modify or confine its operation would not do any great violence to the skeleton of law in Australia. If skeletal principles of the law are generally to be judged by reference to purpose or effect, it will be necessary either to consider whether the purpose of a legal doctrine is so essential that it could not easily be modified, or to ask whether, irrespective of purpose, the effect of modifying the doctrine would be too disruptive to countenance. Clearly enough, the purposes of the prerogative right are not so important as to make it injudicious to modify the doctrine. It has already been demonstrated that those elements of the royal prerogative that have a really essential, typically constitutional, importance are at one with the sovereignty, as majora regalia. The Crown’s right to mines of gold and silver is not so important as to be a major prerogative.
Neither is the prerogative right otherwise annexed to some fundamental aspect of the sovereignty, which might be thought to give it an incidental importance. For instance, the right to the metals is not concomitant to the Crown’s radical title to the land and cannot thereby be affixed with an incidental importance, in the way of the Crown’s prerogative right to escheats.[65] Likewise, the common law allowed the King a prerogative right to enter private property and take mines of saltpetre, a mineral constituent in gun-powder. This prerogative right was thus invoked in defence of the realm. Being an adjunct to the sovereign — or major — prerogative of war, this right to saltpetre could not be granted out as franchise. In other words, unlike the prerogative right to the royal metals, the right to saltpetre is ‘inseparably annexed’ to the sovereign.[66] Given that the right to saltpetre served such an important and inalienable sovereign purpose, the judiciary would doubtless have been careful not to meddle. But the same argument can not apply to the prerogative to the gold and silver mines.
Nor would the effect of recognising native title in the face of the prerogative right really involve much disturbance to our system of laws; in no way would it ‘fracture the skeleton which gives the body of our law its shape and internal consistency’.[67] Indeed, it is submitted that the recognition of native title in this respect would in fact be quite consistent with established legal principles.
This fact is revealed by close analysis of the principles that govern the various proprietary prerogatives of the Crown. This well settled law is largely confined to expositions of the special rule of construction operating in this area:
in construing grants from the Crown ... Nothing passes except that which is expressed, or which is a matter of necessary and unavoidable intendment, in order to give effect to the plain and undoubted intention of the grant; and in no species of grant does this rule of construction more especially obtain than in grants which emanate from, and operate in derogation of, the prerogative of the Crown.
Royal franchises ... and things which are part of the flores coronae will of course not pass out of the Crown in a grant unless they are mentioned.[68]
In other words, the prerogative rights of the Crown will not be granted out by way of general words. For example, at common law an ordinary grant of a parcel of land adjoining the shore does not pass the foreshore, which is the subject of a prerogative right. If the grantee is to acquire the foreshore, it must be expressly mentioned as part of the grant.
This rule of construction likewise obtains in the case of the prerogative right to the royal metals. As Knox CJ and Starke J observed in Royal Metals case:
It is said ... that a rule of construction prevents the royal metals from passing under general words ... [In] the construction of a Crown grant, the words ... must be taken most strongly against the grantee and most favourably for the King.[69]
Hence, the significance of the decision in Woolley’s case,[70] in which the Judicial Committee held that the prerogative applied in Australia, was that at:
common law a grant in Australia does not pass to the grantee the gold and silver that may be found under the land described in the grant, unless the intention that such minerals should pass is expressly stated in apt and precise words’.[71]
The royal metals are therefore an exception to the usual presumption at common law that ‘the owner of the land is entitled to all that lies above or below the surface: cujus est solum, ejus est usque coelum et usque ad infernos’.[72]
It is worth noting that this interpretation of the royal metals has only recently been affirmed by dicta of the Full Court of the Federal Court in Western Australia v Ward.[73]
This is about all that comes out of the decided cases. The royal prerogative was quite obviously intended to secure for the Crown, by way of the common law, ownership of gold and silver mines. But it would be wrong to suppose that the legal means taken in the service of this political end at once vested ownership of all such mines in the Crown. There is in the cases no real suggestion that because royal mines are the subject of a prerogative right the Crown necessarily has full beneficial ownership of those mines. Indeed, in the course of his judgment in Mabo (No 2), Brennan J identified certain difficulties with the notion that the royal prerogative, without more, can vest in the Crown in right of its colonies the absolute ownership of property.[74] Absolute Crown ownership can only be claimed, if at all, pursuant to a radical title and in the exercise from time to time of sovereign power.[75] There is no doubt that the Crown has the ability to acquire full beneficial ownership of the royal metals; it certainly has a radical title thereto: ‘minerals, as part of the soil, are comprehended within the Crown’s radical title’.[76]
But in order to acquire full beneficial ownership the Crown must do so by way of its sovereign executive or legislative powers. It is submitted that only in the recurrent exercise of its powers to alienate land does the Crown acquire absolute ownership in right of its prerogative. Only at this time does the royal prerogative vest as an ‘expression of executive intent’.[77] Thus, when land is alienated, the prerogative vests in the Crown title to the royal metals and it reserves for the Crown the beneficial ownership of gold and silver, which ownership would otherwise have been conveyed to the grantee. In this exercise of its sovereign power, the Crown thus expands its interest in the metals from a radical title to full beneficial ownership.
It will thus be noted that in this analysis the royal prerogative cannot, without more, extinguish native title. Native title is not a tenure and the special rule of construction applying in respect of the prerogative right cannot therefore be asserted against native title. Those who hold land of the Crown do not own the royal minerals since it was deemed never to be a part of their grant. This principle is simply without application in the case of a native title. In Mabo (No 2), Brennan J argued that because native title is not held of the Crown, the usual presumption against derogation from a Crown grant is inapplicable, rendering native title peculiarly vulnerable to extinguishment.[78] There is no good reason why the non-tenurial character of native title cannot be its source of weakness and strength alike. To suggest otherwise is not only unequal logic; it is both discriminatory and a denial of the sui generis character of native title. Hence, wherever native title to the royal metals subsists, it should operate as a burden upon the radical title of the Crown; where there is no native title, the radical title of the Crown expands to a plenum dominium. In this regard, the Crown acquires the full beneficial ownership not in right of its prerogative, but by virtue of the ordinary expansion of its radical title. This reinforces the fact that the Crown cannot in right of its prerogative obtain the plenum dominium unless it appropriately exercises its sovereign powers. Absent such an exercise of sovereign power, against a native title the Crown’s interest in the royal metals rises no higher than its radical title.
The foregoing analysis does, however, contemplate that native title to the royal metals is extinguished at the moment that the Crown, in the exercise of its sovereign executive power, alienates the land over which the native title subsists. As noted above, it is only at this point that the royal prerogative vests in the Crown full beneficial ownership of the royal metals. Only at this point is the prerogative a clear and plain ‘expression of executive intent’ to deal with the royal mines in a way that is fatally inconsistent with the continuance of native title. Extinguishment in this country thus occurred ‘parcel by parcel’,[79] as the Crown exercised its powers of disposition over land. But this is not the whole story, for it speaks only to the exercise of executive power. Native title to the royal metals might also have been extinguished wholesale by an exercise of sovereign legislative power, provided that the exercise of power evinced a clear and plain intention to do so. Whether or not there have in this country been such exercises of legislative power is the next question to be considered.
The position in each of the relevant jurisdictions shall be dealt with in turn; the task calls for a close examination of the history of mines legislation in each Australian jurisdiction. As a prefatory remark, it is worth noting that the several Australian parliaments do not today have the competence to extinguish native title mineral interests, as once they did: see s 212(3) of the (consolidated) Native Title Act 1993 (Cth). Section 212(1)(a) of that Act does no more than invite the parliaments to ‘confirm any existing ownership of natural resources by the Crown in right of the Commonwealth, the State or the Territory, as the case may be’. It does not permit the legislatures to expand the mineral interests of the Crown at the expense of native title. Since the prerogative right of the Crown does not amount to existing ownership, this provision is of no avail and does not put at risk the mineral interests of native title-holders.
It is convenient to begin with these jurisdictions since there we have the benefit of judicial decisions. In the Wik case, at first instance, Drummond J held that s 6 of the Mining on Private Land Act 1909 constituted a clear assertion of full beneficial ownership in the royal metals and thereby had the effect of extinguishing all private rights thereto.[80] That provision stated that gold and silver:
on or below the surface of all land in Queensland, whether alienated in fee-simple or not so alienated from the Crown, and if so alienated whensoever alienated, is the property of the Crown.[81]
Drummond J further held that, overall, the Queensland legislative scheme was such as to indicate an intention to claim beneficial ownership of all minerals in the State.[82] Likewise, in the case of the Northern Territory, Olney J held in the Croker Island Case that no private mineral rights survived s 3 of the Minerals (Acquisition) Ordinance 1953.[83] Section 3 ‘vested in the Crown in right of the Commonwealth all minerals not already the property of the Crown’.[84] The decision of Olney J has been lately reaffirmed by Beaumont and von Doussa JJ in Western Australia v Ward.[85] In the case of Western Australia, property to all gold and silver was vested in the Crown by operation of s 117 of the Mining Act 1904. This section was identical in substance to s 6 of the Queensland Act of 1909; it would therefore qualify as an assertion of beneficial ownership sufficient to extinguish any private interests in gold and silver mines. Such an interpretation was indeed adopted by the majority judges in Ward.[86] On the basis of these authorities, native title to the royal metals has been extinguished by legislative act in Queensland, Western Australia and the Northern Territory.
On this same basis, in Tasmania legislation seems long ago to have extinguished native title to gold and silver. Section 339 of the Mining Act 1911 (Tas) declared that ‘gold and silver, whether or not alienated, and if so whenever alienated, are the property of the Crown’.[87]
Forbes and Lang point out that the subsequent repeal of this provision did not reverse ‘its effect in establishing Crown ownership of the specified minerals’.[88] It would, in any case, appear to be an assertion by the Crown of full beneficial ownership and would thereby have had the effect of extinguishing — for all time — native title to the royal metals.
Section 45 of the now repealed Mines (Amendment) Act 1983 (Vic) substituted into the Mines Act 1958 (Vic) a new s 291(2), which declared, inter alia, all gold and silver in the State to be Crown property, in terms akin to those used in the aforementioned jurisdictions. This declaration would, therefore, have had the effect of extinguishing native title to the royal minerals. Being after the enactment of the Racial Discrimination Act 1975 (Cth), this assertion of title would be subject to the operation of that Act. Had the purported expropriation effected by the substituted s 291(2) of the Mines Act been confined to gold and silver, it might have been arguable that the legislation was racially discriminatory. But the legislation is not confined to gold and silver in its expropriatory effect and does not appear to discriminate as between native title-holders and other title-holders. It is, rather, an indiscriminate expropriation. As such, the Racial Discrimination Act would not invalidate s 291(2) of the Victorian Act; neither, for the same reason, would it qualify as a ‘past act’ for the purposes of the Native Title Act. It follows from this that the Victorian Act was probably apt to extinguish native title to the royal minerals.[89]
Section 16 of the Mining Act 1971 ‘states that property in all minerals in the state is vested in the Crown’.[90] This declaration of Crown ownership most likely extinguishes native title to minerals in the State of South Australia. However, the Mining Act 1971 further provides that a person divested of property in any minerals under the Act, or a person lawfully claiming under them, may at any time apply to the Minister for royalty payments. Thereafter, the Minister should pay all royalty collected on those minerals to the person divested of property in minerals: s 19(17)-(21). Since this statutory right is not time-limited, native title-holders whose interests were otherwise displaced by the statute could claim it at any time. And since no other legislative assertions of beneficial ownership had before been recorded, native title mineral interests might well have survived up until the enactment of the Mining Act 1971. Native title owners in the State of South Australia thus possess an entitlement to royalty payments in respect of gold and silver on their lands, provided that their title extended to the royal metals.
This throws up a question regarding the position of rights held under South Australian land rights legislation. These acts provide that in respect of mining activities on land held under land rights legislation, the statutory owners shall be paid one-third royalties: Pitjantjatjara Land Rights Act 1981 (SA), s 22; Maralinga Tjarutja Land Rights Act 1984 (SA), s 24. However if, as has been argued elsewhere, native title survives the South Australian grants of statutory title, being not inconsistent with that statutory title,[91] then the land rights legislation effectively downgrades by two-thirds the royalties which the native title owners would otherwise be entitled to under the Mining Act 1971 (SA). This being a derogation falling exclusively on the native title owners, it arguably constitutes racial discrimination within the meaning of s 10(1) of the Racial Discrimination Act 1975 (Cth). Other things being equal, the Commonwealth Act would operate so as to nullify the offending provisions of the South Australian land rights legislation. But, as Brennan J noted in Mabo (No 2), the Racial Discrimination Act 1975:
will not have a nullifying effect if the action taken under the relevant state laws constitutes a special measure falling within s 8(1) of the Racial Discrimination Act and thereby escapes the operation of s 10.[92]
The Pitjantjatjara Land Rights Act 1981 (SA) was, of course, upheld on the basis that it did constitute a special measure within the meaning of s 8(1) of the Commonwealth Act.[93] However, given that the effect of s 22 of the Pitjantjatjara Act and s 24 of the Maralinga Act is to deprive the native title owners of the better part of their royalty entitlement under the Mining Act 1971 (SA), the status of these provisions as special measures must be open to question.[94]
New South Wales is unlike the other jurisdictions in the sense that most private mineral rights, with the exception of rights to coal, have never been expropriated by legislative act. Another exception might be thought to exist in a Royal Proclamation of 22 May 1851, issued by Governor FitzRoy as a response to the then nascent gold rush and in which the Governor apparently declares the Crown to be the full beneficial owner of gold mines. This Proclamation would appear to be a legislative instrument. Certainly, the legislative instruments enacted by the Governor of a Crown colony were ordinarily known either as ordinances or proclamations.[95] But by this time New South Wales had its own Legislative Council, which was competent to make laws ‘for the peace welfare and good government of the colony’, provided that such laws were not repugnant to the laws of England nor interfered ‘with the alienation of Crown lands or with the revenue derived from them’.[96] So, in 1851 the Governor could not, without authority from either the Imperial Parliament or the Legislative Council,[97] legislate by way of proclamation. There is no question of the Governor being seized of a prerogative power to legislate, for in a settled colony no such prerogative existed.[98] Yet the Royal Proclamation of 22 May 1851 does not cite any legislative authority — which seems to have been a departure from the ordinary practice[99] — nor, apparently, was the approval of the Legislative Council sought. These omissions must throw into considerable doubt the validity of this Proclamation as a legislative instrument, if that is what it was.
Perhaps no legislative authority was relied upon because the Governor did not contemplate that he was making law. An examination of the content of the Royal Proclamation tends to support such a judgment. The Proclamation begins:
Whereas by Law, all mines of Gold, and all Gold in its natural place of deposit, within the Territory of New South Wales, whether on the lands of the Queen or of any of her majesty’s subjects, belong to the Crown.[100]
The use of the word ‘whereas’ contemplates an intention to do no more than declare what was thought to be the already existing law. This intention is further revealed later in the Proclamation, when it is stated that those who mine gold without being authorised ‘by Her Majesty’s Colonial Government, will be prosecuted, both Criminally and Civilly, as the law allows’ (emphasis added).
It therefore seems that the Proclamation was no more than a statement of executive intention, that is, the intention to set up a regulatory scheme for dealing with the gold problem and to prosecute individuals as the law allowed. In other words, the Royal Proclamation did not purport to have any effect on already existing legal rights, powers or the like. This must be an irresistible indication that the Proclamation did not make law, since a law is something that ‘creates rights, powers, liabilities, duties [or] privileges’.[101] Hence, the content of the Proclamation adds further support to a conclusion that it could not have been an enactment, but was instead a mere statement of the Governor’s intentions. So it was that the next day Governor FitzRoy, with the advice of the Executive Council, issued provisional regulations purporting to establish a licensing system for gold-digging.
As such, the Royal Proclamation of 22 May 1851 should not be seen as having vested in the Crown beneficial ownership of the gold mines. Likewise, it should not be viewed as having extinguished native title to those mines. And no other assertions of title have ever been made in respect of either gold or silver in the State of New South Wales. Later minerals legislation did no more than to save the prerogative rights of the Crown: see, for instance, s 5 of the Act 37 Vic No 13, An Act to make better provision for the regulation of mining, 16 April 1874. Most recently, s 379 of the Mining Act 1992 (NSW) did no more than once again save the prerogative rights of the Crown. Ownership of the royal metals therefore continues to this day to be governed by the common law, which implies that native title over those metals may yet subsist in New South Wales.
It has been herein argued that a native title to the royal metals might have been extinguished by way of an exercise of the power to grant interests in land. A rather difficult problem arises in this connection where land has been made the subject of a grant under the Aboriginal Land Rights Act 1983 (NSW). The prerogative applies to grants of freehold land under that legislation; indeed the prerogative rights of the Crown are expressly re-affirmed by s 45(11) of that Act. For our purposes, it is noteworthy that this provision refers to the ‘prerogative right’ to gold and silver, as distinct from the Crown’s ‘ownership’ of coal and petroleum. This explicit distinction between ‘prerogative right’ and ‘ownership’ can only be seen to add support to the arguments put throughout this essay.
In any event, a grant of statutory title under the Aboriginal Land Rights Act 1983 would, other things being equal, extinguish native title to the royal metals. However, any action taken under that Act is subject to the paramount operation of the Racial Discrimination Act 1975 (Cth). A question then arises as to the precise effect of the Commonwealth Act on the State action. Frank Brennan has suggested that the Racial Discrimination Act may not invalidate post-1975 grants which had the effect of extinguishing native title.[102] Rather, he has put the view that such grants would instead be actionable in the sense that they could give rise to a claim for fair compensation. If this be the case, it is arguable that the Crown’s exercise of its prerogative right would likewise be conditioned by an obligation to pay compensation.
There is in the cases support for the proposition that the Crown is obliged to pay compensation when it acquires property in an exercise of its prerogative. A majority of the House of Lords decided in the Burmah Oil case that a subject was entitled to be compensated for a loss of property occasioned by the Crown’s exercise of its war prerogative. In the course of his judgment in that case, Lord Reid quoted approvingly a Scottish Lord of the Inner House, who said:
that a British subject can be deprived of his possessions for the common good ‘by exercise of the royal prerogative ..., and this prerogative exercise usually involves payment of compensation appropriate to what the subject has lost.[103]
Likewise, Lord Pearce agreed that:
justice as it was in fact, or ought to be in theory, required compensation for losses inflicted on subjects for the benefit of the community. There is the absence of any decision that the Crown may seize without compensation. On the contrary, there is the Saltpetre case which held that the Crown must pay and make reparation for damage caused in a taking of saltpetre which was justified on the ground of war prerogative.[104]
It therefore seems that the native title holders deprived of their ownership of gold and silver mines, by way of grants under the Aboriginal Land Rights Act 1983 (NSW), could be entitled to compensation at common law. It is thus arguable that the vesting of the gold and silver mines in the Crown in right of its prerogative would not be invalidated by the Racial Discrimination Act 1975 (Cth).
If, in the alternative, the Racial Discrimination Act would operate to invalidate the exercise of the prerogative right, it becomes necessary to have regard to the (consolidated) Native Title Act 1993 (Cth). In the first place, the exercise of the prerogative constitutes an ‘act’ as defined in s 226 of the Native Title Act. Second, any exercise of the prerogative that had been invalidated by the Racial Discrimination Act would, if it occurred prior to 1 January 1994, qualify as ‘past act’ under s 228 and, what is more, as a ‘Category D past act’, as defined in s 232 of the Native Title Act. By force of s 19 of that Act, the State parliaments were empowered to validate any invalid past acts, which the New South Wales Parliament duly did: s 8 of the Native Title (New South Wales) Act 1994 (NSW). In the result, there can no longer be any question about the validity of an exercise of the prerogative right under the Aboriginal Land Rights Act 1983 (NSW).
This does not, however, satisfactorily dispose of the matter. We are still left with a question as to the status of the native title. Sections 229 and 230 of the Native Title Act clearly establish that grants made under the land rights legislation of a state do not extinguish native title. Likewise, s 47A of the Native Title Act provides, relevantly, that in the determination of claimant applications, any extinguishment of native title rights and interests occasioned by acts taken under land rights legislation is to be disregarded.[105] But this legislative injunction does not apply in the case of Crown ownership of natural resources: s 47A(4). This exclusion must be taken to mean that for the purpose of the specified native title determinations, an act that vests ownership of natural resources in the Crown may be regarded as having extinguished native title. And the non-extinguishment principle appears not to apply to that act: contrast 47A(3)(b). The exercise of the prerogative right, by way of a grant under the Aboriginal Land Rights Act 1983 (NSW), constitutes just such an act. This implies that although such an exercise of the prerogative right was a ‘Category D past act’, it does not appear to be subject to the non-extinguishment principle that by force of s 15 ordinarily applies in respect of ‘Category D past acts’. The Native Title Act would therefore seem to speak at cross purposes in this regard. It is noted that s 15 does not apply to an act if ss 23C and 23G apply, but it is submitted that to apply those latter provisions to an exercise of the prerogative right would be to stretch their meaning too far.
As it is, then, it might be argued that this particular exercise of the prerogative right simply falls into lacunae in the Native Title Act 1994 (Cth). By force of s 47A, and notwithstanding s 15, such an act probably extinguishes native title to gold and silver. There is in the Native Title Act no reference to a compensation entitlement in respect of such extinguishment and to suggest that s 17 or Division 5 generally give rise to a compensation entitlement in this case would, again, artificially stretch the meaning of those provisions. But this does not imply that there is no entitlement to be compensated for the loss of this valuable native title interest. It is an established:
principle of statutory interpretation, that if the legislature intends to derogate (without compensation) from the common law rights of the citizen it should clearly demonstrate its intention to do so.[106]
This principle has been upheld by the High Court in the specific context of mineral ownership,[107] and the more general principle has lately been strongly reaffirmed by that Court in Coco v The Queen:
The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.[108]
There is in this case no unmistakable and unambiguous intention to derogate from the common law right to be compensated for loss of property by way of an exercise of the prerogative.[109] A fortiori, in light of the general scheme of the Native Title Act, which manifests a broad intention to compensate native title-holders for loss of their rights and interests, the legislative omission is probably just an oversight.
This commentary has argued that the royal prerogative concerning mines of gold and silver can not in and of itself extinguish native title. The prerogative does not amount to beneficial ownership and indigenous ownership of the royal metals survived the reception of the prerogative as part of the common law. The prerogative only vests in full beneficial ownership at the moment that the Crown grants out a parcel of land. This implies that much native title has over time been extinguished as the Crown exercised its power to dispose of land. In any event, in most Australian jurisdictions the legislature has displaced the common law and declared the Crown to be owner of gold and silver mines. Nonetheless, this paper argues that valuable native title and statutory interests may yet survive in both South Australia and New South Wales.
[1] Case of Mines (1567) 1 Plowd 310 at 315-316. See also Chitty J A Treatise on the Law of the Prerogatives of the Crown Butterworths London 1820, p 145.
[2] Evatt H V The Royal Prerogative LBC Sydney 1987. See also his comments, whilst on the bench, in Federal Commissioner of Taxation v Official Liquidator of EO Farley [1940] HCA 13; (1940) 63 CLR 278 at 320-321.
[3] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1.
[4] Woolley v Attorney-General of Victoria [1876] 2 App Cas 163; Commonwealth v New South Wales (Royal Metals Case) [1923] HCA 34; (1923) 33 CLR 1.
[5] Halsbury’s Laws of Australia, Vol 19, Para 170-60.
[6] Forbes J R S and Lang A G Australian Mining and Petroleum Laws (2nd ed) Butterworths Australia 1987, p 2.
[7] Evatt, above note 2 at 138.
[8] R v Wilson (1874) 12 SCR 258 at 270, per Sir James Martin CJ.
[9] Moore v Smaw (1861) 17 Cal 199 at 220-222.
[10] Moore S A A History of the Foreshore and the law relating thereto and Hall’s Essay on the Rights of the Crown in the Seashore Stevens & Haynes London 1888, p 254 quoting Callis on Sewers.
[11] Moore v Smaw, above note 9 at 221.
[12] Moore v Smaw, above note 9 at 222.
[13] New South Wales v The Commonwealth (Seas and Submerged Lands Case) [1975] HCA 58; (1975) 135 CLR 337 at 489.
[14] Coomber v Justices of Berks 9 App Cas 61 at 74, quoted in the Royal Metals Case by Isaacs J, above note 4 at 47.
[15] Royal Metals Case, above note 4 at 47, per Isaacs J.
[16] Chitty, above note 1, p 25.
[17] Roberts-Wray K Commonwealth and Colonial Law Stevens & Haynes London 1966, pp 557-563; Evatt, above note 2 at 137-142; Chitty, above note 1, p 33. Nyali Ltd v Attorney-General [1956] 1 QB 1 illustrates the reverse proposition: in that case the minor prerogatives were received by way of the common law, in spite of the fact that the Crown was not sovereign.
[18] Royal Metals Case, above note 4 at 47.
[19] These principles, and the relevant authorities have lately been canvassed by Merkel J in The Commonwealth v Yarmirr and Ors (Croker Island Case) [1999] FCA 1668; (1999) 168 ALR 426 at 548-549.
[20] Commentaries, Bk I, ch 4, p 107: Mabo (No 2), above note 3 at 35. The common law position was restated and given statutory force in 1828 by s 24 of the Act 9 Geo IV, c 83; see Castles, A C ‘The Reception and Status of the English Law in Australia’ [1963] AdelLawRw 1; (1963) 2(1) Adelaide Law Review 1.
[21] State Government Insurance Commission v Trigwell [1979] HCA 40; (1979) 142 CLR 617; Delohery v Permanent Trustee Co [1904] HCA 10; (1904) 1 CLR 283; Quan Yick v Hinds [1905] HCA 10; (1905) 2 CLR 345.
[22] As above.
[23] Dugan v Mirror Newspapers Ltd [1978] HCA 54; (1979) 142 CLR 583.
[24] Liquidators of Maritime Bank of Canada v Receiver-General (New Brunswick) [1892] AC 437 at 441, per Lord Watson. See also In re Bateman’s Trust (1873) LR 15 Eq 355 at 361, per Bacon V-C.
[25] R v Kidman [1915] HCA 58; (1915) 20 CLR 425 at 435, per Griffith CJ; see also Attorney-General (NSW) v Butterworths & Co (Australia) Ltd (1938) 38 SR 195 at 238-239, per Long Innes CJ in Eq, and the Seas and Submerged Lands Case, above note 13 at 438-439 (per Stephen J).
[26] Baldick v Jackson (1910) 30 NZLR 343. Stout CJ, at 344, also referred to the allegedly trivial policies used to justify the prerogative right that is, to provide whale-bone for the Queen’s corsets. But it is clear from the foregoing survey that such reasons should not render a law inapplicable. Also noted was the fact that no claims on behalf of the Crown had been lodged over some seventy years since sovereignty. However, non-use does not appear to deprive the Crown of its prerogative: Evatt, above note 2 at 45. Thus, custom — and Maori custom — seems to be the best legal reason for this decision.
[27] As above at 344-345.
[28] Woolley v Attorney-General, above note 4; Attorney-General of British Columbia v Attorney-General of Canada [1889] 14 App Cas 295; Chitty, above note 1, p 33.
[29] Moore v Smaw, above note 9 at 220-222. See also Boggs v Merced Mining Co (1859) 14 Cal 279 at 310.
[30] Woolley, above note 4 at 165.
[31] Woolley, above note 4 at 166.
[32] See Meyers G D, Piper C M and Rumley H E ‘Asking the Minerals Question: Rights in Minerals as an Incident of Native Title’ [1997] AUIndigLawRpr 28; (1997) 2(2) Australian Indigenous Law Reporter 203.
[33] See against, Hunt M W ‘Mineral Development and Indigenous People — The Implications of the Mabo Case’ (1993) 11 Journal of Energy and Natural Resources Law 155. This is of course bound up in the issue as to whether native title consists of a ‘mere bundle of rights’ or a holistic, ‘communal right to land’: Ward v Western Australia [1998] FCA 1478; (1998) 159 ALR 483 at 508, per Lee J; Western Australia v Ward [2000] FCA 191; (2000) 170 ALR 159, per Beaumont and von Doussa JJ.
[34] The orders made by Justice Lee in Ward v Western Australia (1998), above at 639-640, support the view put forth here: native title rights and interests were held to extend so far as the use, enjoyment and trade of (undefined) resources in the determination area. In the Full Court, the majority judges thought that the native title interest, if any, in all minerals save for ochre had been extinguished by legislation: Western Australia v Ward, above at 289-293. Clearly, this is no answer to the abstract question whether native title could encompass mineral ownership. A High Court appeal is currently pending in this matter (special leave granted: 04/08/2000, P29/2000).
[35] Western Australia v Ward, above note 33 at 240; also Forbes J R S ‘Mabo and the Miners’ in Stephenson M A Mabo: A Judicial Revolution University of Queensland Press St Lucia 1993, p 211 and p 78; but contrast with, Yarrow, D ‘Ownership and Control of Natural Resources and Their Impact on Native Title’ in Horrigan, Bryan and Young Commercial Implications of Native Title The Federation Press Sydney in association with The Centre for Commercial and Property Law, Queensland University of Technology 1997, pp 139-140; Bartlett R H Native Title in Australia Butterworths Sydney 2000, p 243.
[36] Mabo (No 2), above note 3 at 68.
[37] See, for example, Olney J’s discussion of ‘extinguishment’ and ‘recognition’ of native title in the context of the Native Title Act 1993 (Cth): Yarmirr v Northern Territory (1998) 156 ALR 370 at 386-387, 389, 427-428.
[38] Mabo (No 2), above note 3 at 31, 46.
[39] Mabo (No 2), above note 3, at 45, 47.
[40] Mabo (No 2), above note 3, at 46.
[41] Royal Metals Case, above note 4 at 22; the Seas and Submerged Lands Case, above note 13 at 440, per Stephen J.
[42] Seas and Submerged Lands, above note 13 at 487, per Jacobs J.
[43] Mabo (No 2), above note 3 at 48, per Brennan J. See also Wik Peoples v Queensland (1996) 187 CLR 1, per Toohey J at 127; Gummow J at 188.
[44] Mabo (No 2), above note 3 at 31.
[45] Royal Metals Case, above note 4 at 47, per Isaacs J.
[46] Chitty, above note 1, p 138.
[47] See, for instance, Evatt, above note 2, pp 38-39.
[48] See the Croker Island case (Federal Court), above note 19, at 470, per Beaumont and von Doussa JJ.
[50] Croker Island Case (FC), above note 19 at 468, per North J; see also TA Gresson J, at 478.
[51] Keepa v Inspector of Fisheries [1965] NZLR 322 at 326.
[52] [1915] AC 599 at 601.
[53] Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 at 407 confirms this view of Holt’s case; see also Roberts-Wray, above note 17, p 633. No distinction between the rights of the indigenous peoples in Lagos and Australia arises on account of the fact that the former was ceded and the latter settled; Amodu Tijani states a general proposition of the common law: Mabo (No 2), above note 3 at 56 per Brennan J.
[54] See ‘Where does native title exist?’, Native Title Questions & Answers National Native Title Tribunal 17 November 1997, p 3. Note that the question did not arise for decision in the Croker Island case, since the claimed area was held not to include the land of the intertidal zone, or foreshore: above note 19 (FC) at 470-471, per Beaumont and von Doussa JJ; at 384, per Olney J.
[55] See, among others, Merced Mining Co, above note 29; Moore v Smaw, above note 9.
[56] Moore v Smaw, above note 9 at 217.
[57] Merced Mining Co, above note 29 at 323.
[58] Hall on the Seashore, in Moore, above note 10, p 710.
[59] Halsbury’s Laws of England (4th ed) Supp 1998, Para 1443.
[60] Mabo (No 2), above note 3 at 80.
[61] [1964] UKHL 6; (1965) AC 75 at 114.
[62] Yanner v Eaton [1999] HCA 53; (1999) 166 ALR 258 at 267, per Gleeson CJ, Gaudron, Kirby and Hayne JJ.
[63] Mabo (No 2), above note 3 at 52-53.
[64] Moore v Smaw, above note 9 at 222.
[65] See Simpson A W B A History of the Land Law, 2nd Ed (1986), quoted in Mabo (No 2), above note 3 at 45 per Brennan J.
[66] The Case of Saltpetre, 7 Coke’s Reports 13; see also Merced Mining, above note 29 at 319; Chitty, above note 1, p 49.
[67] Mabo (No 2), above note 3 at 29 per Brennan J.
[68] Feather v R 6 B & S 283, per Cockburn CJ, quoted in Hall on the Seashore, in Moore, above note 10, p 687; Moore, above note 10, p 147.
[69] Royal Metals Case, above note 4 at 19.
[70] Royal Metals Case, above note 4 at 19.
[71] Veatch Mining Laws of Australia and New Zealand United States Geological Survey, Bulletin 505, 1911 at 169, quoted by Drummond J in Wik Peoples v Queensland, above note 43 at 679.
[72] Forbes and Lang, above note 6, p 14.
[73] Western Australia v Ward, above note 33 at 289, per Beaumont and von Doussa JJ.
[74] Mabo (No 2), above note 3 at 54 per Brennan J.
[75] Mabo (No 2), above note 3 at 54 per Brennan J.
[76] Wik, above note 43 at 686.
[77] Meyers et al, above note 32 at 240.
[78] Mabo (No 2), above note 3 at 64.
[79] Mabo (No 2), above note 3 at 59.
[80] Wik, above note 43 at 678-679.
[81] See s 6(1)(i) and s 6(1)(ii), which latter section contains some additional qualifications left aside here.
[82] Wik, above note 43 at 685.
[83] Yamirr v NT, above note 37 at 437-438.
[84] Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 612 per Gummow J. Section 4 of the Ordinance also provided those divested of a mineral interest by force of s 3 with a time-limited right to claim compensation. This provision, Gummow J speculates, would have sufficed as just terms compensation (as above). In any case, the constitutional requirement to provide just terms does not operate to limit the legislative competence of the Commonwealth Parliament with respect to the territories (s 122 of the Constitution): Teori Tau v Commonwealth [1969] HCA 62; (1969) 119 CLR 564. But see also the judgments of Gummow J and Kirby J in Newcrest. Interestingly, in the case which upheld the validity of the Ordinance (Kean v Commonwealth (1963) 5 FLR 432), Bridge J had proceeded on the basis that the payment of just terms might be constitutionally required. See also Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, on the validity of the Ordinance.
[85] Western Australia v Ward, above note 33 at 289-293; but contrast with North J, above note 33 at 362-367.
[86] Western Australia v Ward, above note 33 at 289-293, 362-367.
[87] Myers et al, above note 32 at 245.
[88] Forbes and Lang, above note 6, p 24.
[89] But contrast with Bartlett, above note 35, p 244.
[90] Forbes and Lang, above note 6, p 23.
[91] Bradshaw R ‘The Relationship of Native Title and the Native Title Legislation to Land Rights Legislation’ in Bartlett R H and Meyers G D (eds) Native Title Legislation in Australia Centre for Commercial and Resources Law, University of Western Australia and Murdoch University Perth 1994 158 at 167; Nettheim G ‘The Relationship between Native Title and Statutory Title Under Land Rights Legislation’ in M A Stephenson (ed) Mabo: The Native Title Legislation University of Queensland Press St Lucia 1995, p 193.
[92] Mabo (No 2), above note 3 at 74.
[93] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70.
[94] See Nettheim, above note 91 at 189.
[95] See Elias T O British Colonial Law Stevens London 1962, p 38.
[96] See Melbourne A C V (R B Joyce (ed), Early Constitutional Development in Australia University of Queensland Press St Lucia 1963, p 270.
[97] Cameron v Kyte (1835) 3 Knapp 332; Melbourne, above note 96, p 280.
[98] Mabo (No 2), above note 3 at 79-80, per Deane and Gaudron JJ.
[99] See, for example, Berry v Graham (1862) 2 Legge 1493; Municipal District of Gundagai v Norton (1894) 15 NSWR (L) 365; Minister for Lands v Chick (1899) 20 NSWR (L) 217; referred to in Fin P Law and Government in Colonial Australia Oxford University Press Melbourne 1987, p 54.
[100] The New South Wales Government Gazette (Supp) (1) (1851). Note also that ‘Victoria issued a similar proclamation on 16 August 1851 following its establishment as a separate colony’ (Forbes and Lang, above note 6, p 2).
[101] Re Dingjan; Ex parte Wagner [1995] HCA 16; (1996) 183 CLR 323 at 369, per McHugh J; or ‘changes, regulates or abolishes’, in Fairfax v Federal Commissioner of Taxation (1965) 114 CLR1 at 7 per Kitto J.
[102] ‘Mabo and the Racial Discrimination Act: The Limits of Native Title and Fiduciary Duty under Australia’s Sovereign Parliaments’ [1993] SydLawRw 16; (1993) 15(2) Sydney Law Review 206 at 212.
[103] Burmah Oil Co Ltd v Lord Advocate, above note 61 at 107, quoting Lord Carmont (1963) SC 410 at 458.
[104] Burmah Oil Co Ltd v Lord Advocate, above note 61 at 156, footnote omitted.
[105] See also Division 2AA of the Act.
[106] Forbes and Lang, above note 6, p 21.
[107] Wade v New South Wales Rutile Mining Co Pty Ltd [1969] HCA 28; (1969) 121 CLR 177.
[108] [1994] HCA 15; (1994) 179 CLR 427 at 437, per Mason CJ, Brennan, Gaudron and McHugh JJ. The application of this principle in relation to mineral ownership is canvassed at length in Durham Holdings Pty Ltd v The State of New South Wales [1999] NSWCA 324; (1999) 47 NSWLR 340 (CA), with a discussion of the relevant authorities at 352-354. An appeal on, among other things, this point of statutory construction is currently pending in the High Court (special leave granted 10/03/2000, S155/1999).
[109] Burmah Oil Co Ltd v Lord Advocate, above note 61 at 156.
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