Gold & Copper Resources Pty Limited v The Hon Chris Hartcher, Minister for Resources & Energy, Special Minister

THE COURT: The second respondent, Newcrest Operations Pty Ltd (Newcrest), was the holder of an exploration prospecting licence granted under the provisions of the Mining Act 1992 (NSW) (the Act). The licence had been renewed in 2004 for a period of five years, expiring on 20 May 2009.

On 27 March 2009, Newcrest made an application for further renewal of the licence for a period of two years. Subsequently, and outside the time prescribed by the Act for lodging an application for renewal, Newcrest sent to the New South Wales Department of Primary Industries (the Department) a new first page of the application, in which the period specified for the term of the requested renewal was five years.

On 8 October 2009, the Minister renewed the licence for a period of five years commencing 20 May 2009.

The appellant, Gold & Copper Resources Pty Limited (Gold & Copper Resources) challenged the validity of the renewal of the exploration licence pursuant to s 293(1)(q)(ii) of the Act. Pain J in the Land and Environment Court dismissed that application.

Gold & Copper Resources has appealed to this Court pursuant to the Land and Environment Court Act 1979 (NSW), s 57, (the Court Act) seeking an order that the orders made by Pain J in the Land and Environment Court be set aside and a declaration that the renewal of the licence was void and of no effect on the basis that, as at the date of the renewal, there was no pending application before the Minister within the meaning of s 131 of the Act, so as to enliven the power to renew the licence pursuant to s 114 of the Act.

The appeal under s 57 of the Court Act is on a question of law.

Newcrest and the Minister have each filed a notice of contention in which they contend that the appeal was brought outside the three month period after publication in the Gazette of the grant of the renewal prescribed by s 137 of the Act, and is therefore statute barred.

As the appeal involves a question of statutory construction, it is necessary to set out the relevant provisions of the Act in detail. The relevant provisions of the Act are those in force in the period 7 April to 18 June 2009.

The Act is “An Act to make provision with respect to prospecting for and mining of minerals”.

The grant and renewal of exploration licences is governed by Pt 3 of the Act.

Any person may apply for an exploration licence: Pt 3, Div 1, s 13.

Part 3, Div 2 provides for restrictions on the grant of exploration licences. Relevantly, s 19 provides that once an exploration licence is granted over land, another exploration licence over that land cannot be granted that includes a group of minerals in respect of which the existing licence has been granted. Section 19 also provides that an exploration licence cannot be granted over land that is the subject of an assessment lease, mining lease, or mineral claim.

The Minister, after considering an application for an exploration licence, may grant the application over all or part of the land over which the licence is sought, or may refuse the application: Pt 3, Div 3, s 22(1)(a) and (b) respectively.

Part 3, Div 3, s 25(1) prescribes the minimum and maximum dimensions of land over which an exploration licence may be granted, subject to the Minister’s discretion to grant a licence over a larger area. Section 25(2) provides that the land over which an exploration licence may differ in size or shape from, but may not include land other than, the land over which the licence was sought.

Section 25(3) governs the position where, by operation of s 19, land is excluded from land over which an exploration licence may be granted because the land is subject to an assessment lease, a mining lease, or a mineral claim. The land becomes subject to an exploration licence if such leases or mineral claims cease to have effect and the land is not then subject to another assessment or mining lease or mineral claim.

Section 25(4) makes the same provision where there is a pending application for an assessment lease, a mining lease or a mineral claim, and that application is withdrawn or the resulting grant does not cover the land over which the exploration licence is sought.

Part 7, Div 1 relates to the renewal of authorities. An authority, as defined in the Dictionary to the Act, means an exploration licence, an assessment lease, or a mining lease. This case is concerned with an application for an exploration licence. Other than when citing the provisions of the legislation, it will be convenient in referring to the provisions of Pt 7 to replace the reference to “authority” with “exploration licence”.

Section 113 provides for applications for renewal as follows:

Pursuant to s 114, the power to renew or refuse an application for renewal resides in the Minister. Section 114 provides, relevantly:

Section 117 preserves the status of an existing exploration licence until an application for renewal is dealt with. Its terms are as follows:

Section 118 provides that the renewal of an exploration licence takes effect on the date on which it is renewed, or on such later date as may be specified in the renewal.

Part 8 of the Act contains general provisions in relation to exploration licences. Division 1 specifies “General Procedures” to which applications are subject. Sections 130, 131, 135, 136, and 137(1) and (2) are presently relevant:

Supplementary provisions are contained in Pt 18. Section 382 makes provision, inter alia, for the form in which the application must be made and the information to be contained in that form as follows:

An application under the Act may be lodged in person, by facsimile, or by post: Mining Regulation 2003 (NSW), Pt 4, reg 56(1). If an application is lodged by post, the application is presumed to have been lodged at 9.30 am on the day on which it is received: reg 56(7).

Gold & Copper Resources identified the essential issue on the appeal as being whether, when the decision to renew the exploration licence was made by the Minister’s delegate on 8 October 2009, there was an “application” pending within the meaning of s 113 such as to enliven the Minister’s power under s 114 to renew the exploration licence or to refuse the application. This issue raised the related question whether the application lodged by Newcrest had been “finally disposed of” within the meaning of s 117 and s 131 before the decision to renew the exploration licence was made on 8 October 2009. The appellant submitted that if the application had been “finally disposed of” before the decision was made, there was no “pending application” within the meaning of s 131. In the absence of a pending application, the existing licence had lost the continuing effect given to it by s 117 and had, therefore, expired. It followed that there was no licence to renew.

Although the appeal is limited to a question of law, it is necessary for the resolution of the issue raised on the appeal to understand the factual circumstances, including the circumstances surrounding the lodgement of the application for renewal and the information provided in the approved Form 9 on which the application was required to be made. On Gold & Copper Resources’ argument, the “Instructions for Completing Form 9” and a “primefacts” information sheet issued by the Department were also relevant.

The pro forma Form 9 requires, relevantly, details of the licence number, the expiry date of the existing licence, the name of the holder of the existing licence, an address for correspondence and, relevantly for this case, in section 5 of the form, the “[p]eriod for which renewal is sought: (Maximum 5 years)”. Section 8 of the form requires the applicant to “[f]urnish an estimate of the money proposed to be expended on prospecting operations”. Section 10 of the form is as follows:

Section 11 of the form states:

The “Instructions for Completing Form 9” contained, relevantly, the following directions:

It was Gold & Copper Resources’ position that the Information document and primefacts sheet were incorporated into Form 9 and thereby had statutory effect.

On 24 March 2009, Newcrest forwarded by post an application for renewal of the exploration licence on the approved Form 9. The application was received by the Department on 27 March. Accordingly, the application was lodged within the time specified by s 113(2). In section 5 of the approved Form 9, the period for which renewal of the licence was sought was “Two Years”. As Newcrest was seeking renewal of the licence over all six units subject of the existing licence, Newcrest lodged with its application a “Special Circumstances” submission, as required by s 114(6). The “Special Circumstances” submission included a works program for the two year period for which the renewal was sought, together with the total proposed expenditure over that period.

The certification required in cl 11 of the Form 9 was signed by Lisa Bowyer, Newcrest’s Australian Tenement Manager.

On 20 May 2009, Ms Bowyer sent an email to Kevin Capnerhust at the Department, which stated:

The attached page 1 referred to in the email was page 1 of a Form 9 which contained the same details as page 1 of the Form 9 lodged on 27 March, save that in section 5, “Period for which renewal is sought”, the period of “Five Years” was inserted.

On 25 May, Ms Bowyer forwarded a further “Special Circumstances” submission. Paragraph 3 of the submission, headed “Proposed exploration” was the same for years 1 and 2 as in the original submission. Additional information was provided for years 3 to 5 to correspond with the term of five years sought in the document forwarded to the Department on 20 May.

The relevant section of the Department’s Titles register, which was produced on discovery in the proceedings, contained only the page 1 forwarded by Ms Bowyer on 20 May and the original “Special Circumstances” submission relating to the application for two years. The “Special Circumstances” submission forwarded to the Department on 25 May was also produced by the Minister on discovery. The page 1 of the original application lodged on 27 March was not produced by the Minister on discovery or otherwise in the proceedings.

Gold & Copper Resources advanced two principal submissions as to why there was no extant application to enliven the exercise of the Minister’s power to renew the exploration licence. First, it submitted that the application had been “finally disposed of” within the meaning of ss 117 and 131. Alternatively, it submitted that the application had been withdrawn. The two arguments were, to a significant extent, interwoven.

In support of its first argument, Gold & Copper Resources contended that, in forwarding the new page 1 of the Form 9 to the Department on 20 May, Newcrest had lodged a new application and had thereby, in effect, abandoned its original application. It followed on this argument that the application lodged on 27 March was no longer pending within the meaning of s 131, and s 117, which continues the effect of a pending licence, had no application.

On its second argument, Gold & Copper Resources contended that the withdrawal of an application also constituted a final disposal of the application within the meaning of the phrase “finally disposed of” in s 117. It further submitted, and this was the nub of its argument, that an application may be withdrawn either by notice lodged in accordance with s 130 or by some other means, for example, orally or by conduct. Thus, on Gold & Copper Resources’ argument, any dealing with the application that had the effect of bringing the application to an end constituted a final disposal for the purposes of s 117.

The Minister is empowered by s 114 to “renew” the licence or may “refuse the application”. The Minister has a discretion under s 114(3)(a) to renew the licence for whatever period is considered appropriate, up to a maximum of five years, regardless of the period sought in the application for renewal: Gold and Copper Resources Pty Limited v Minister for Resources and Energy [2013] NSWLEC 66 at [57]-[60]. Gold & Copper Resources accepted that the Minister could, in the exercise of that discretion, grant a renewal for five years notwithstanding that an applicant sought renewal for a lesser period.

If an exploration licence is not “finally dealt with” before the date of its expiration, the licence continues to have effect until the application is “finally disposed of”: s 117. An application is “finally disposed of” for the purposes of s 117 if the Minister takes one or other of the steps specified in s 114. That much was not in dispute.

There are a number of difficulties with Gold & Copper Resources’ construction of the Act. It is convenient to first consider the “withdrawal” argument.

The relevant statutory context for the construction of s 117 is its place in the Act within Pt 7, Div 1 relating to renewal, transfer and cancellation of authorities. Sections 113 and 114, which relate to the making of an application and the Minister’s powers of renewal or refusal respectively, are contained in the same division. Section 130, relating to the withdrawal of an application, is contained in Pt 8, “General Procedures”.

The principles of statutory construction also direct primary attention to the text of the provision: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [23]. This means reading the provision as a whole and according to its plain meaning. Section 117(1) deals with the position where an “application is not finally dealt with”. It provides that an application for renewal continues to have effect until the “application is finally disposed of” in s 117(1). That phrase cannot be read in isolation. As a matter of its ordinary language and syntax, the phrase “the authority continues to have effect … until the application is finally disposed of”, relates back to the phrase “[i]f an application ... is not finally dealt with”.

Although s 117 does not specify by whom an application is “finally dealt with”, its position within Pt 7, Div 1 makes it apparent that this relates to the decision to be made by the Minister under s 114 in respect of an application lodged in accordance with s 113. Section 114 only permits the Minister to grant the renewal or refuse the application. Further, the withdrawal of an application does not fall within the ordinary meaning of the words “finally dealt with” or “finally disposed of” within the meaning of s 117.

Nor does the construction urged by Gold & Copper Resources fit within the scheme of the Act relating to applications for renewal, the Minister’s powers, pending applications, the manner in which an application may be withdrawn and the effect of a withdrawal.

The Act, which, as stated above, is “An Act to make provision with respect to prospecting for and mining of minerals”, contains a highly regulated regime for prospecting and mining of minerals in New South Wales. It is a system of documentation and record. This is demonstrated, not only by the provisions under consideration in this case, but by the scheme of the Act considered as a whole.

It is a criminal offence to carry out mining and prospecting without an authority: s 5, and there are other related offences created by the Act. Applications for exploration licences are governed by Pt 3. The powers of the Minister in respect of an application are prescribed by the Act and are limited to the grant or refusal of the application: s 22. There is a power to impose conditions if a licence is granted: s 26. An exploration licence, if granted, must be in the approved form and is to include the following specified particulars: a description of the land over which the licence is granted; a list of the group or groups of minerals in respect of which it is granted; the conditions to which it is subject; and the period for which it is to have effect: s 28. The rights and duties of the holder of an exploration licence are prescribed by Pt 3, Div 4.

Similar documentary provisions relate to applications for assessment leases and mining leases: Pts 4 and 5 respectively. As is the case with exploration licences, the powers of the Minister in determining an application for an assessment lease or a mining lease are prescribed and limited to a grant of the lease or refusal of the application: ss 41 and 63 respectively. The Minister may impose conditions on the grant of any such lease: ss 44 and 70. The rights and duties of a holder of an assessment lease or a mining lease are likewise prescribed: Pt 4, Div 4 and Pt 5, Div 4 respectively. An assessment lease or a mining lease may be withdrawn by means of a notice of withdrawal pursuant to s 130, which applies to all “authorities” under the Act.

Section 136 underscores the centrality of documentation to the scheme of the Act. It provides for the gazettal of the essential matters for which the legislation provides, namely, applications for exploration licences, assessment leases or mining leases; the grant or refusal of such applications; the withdrawal of such applications; request for the cancellation of authorities; and the grant, renewal, transfer or cancelation of an authority.

The purpose of publication in the Gazette is to provide for public notification of all applications, grants and refusals relating to authorities. It provides information to a prospective applicant for an authority as to whether there is a pending application in respect of the land. It provides information to an entity interested in undertaking exploration and mining as to whether land is subject to pending applications or existing authorities. This has significant economic importance. There is no utility in undertaking preliminary survey work on land which is already subject to an application, licence or lease, not least because the costs associated with the preliminary work in anticipation of making an application are not insignificant. Likewise, there are significant costs involved in making an application for an authority, which would likely be wasted if an authority was already in place in respect of land.

There are also practical reasons why the withdrawal of an application, otherwise than by lodgement of notice in writing, is not feasible within the scheme of the Act. To permit withdrawal by oral communication or by conduct would not provide for certainty in a scheme which governs a valuable resource. The uncertainty that would be engendered if an application could be withdrawn orally or by conduct can be demonstrated by a simple example.

Assume that, an application having been lodged for the renewal of an exploration licence, an officer of the Department, in discussion, informs the applicant that certain conditions will be imposed on the renewal, to which the applicant responds, “I withdraw the application”. On Gold & Copper Resources’ argument, the application would thereby have been withdrawn and notice in the Gazette would be required. However, if the applicant, on reflection, decided not to withdraw and continued to engage in exploration, as is permitted when an application for renewal is pending, then Gold & Copper Resources’ argument, the applicant would commit an offence in doing so.

Assume that on notification in the Gazette of the oral withdrawal, which is required on Gold & Copper Resources’ argument, another applicant made an application for an exploration licence over the same land for the same group of minerals. If the application for renewal was pending, s 19 would prohibit the grant of an exploration licence to the new applicant. However, the new applicant would presumably argue that there was no pending application as notification of withdrawal had been published in the Gazette. The applicant for renewal would contend for the continued effect of the existing licence pending determination of the application for renewal. Whilst any dispute as to the priority of competing applications for authorities is to be determined by the Minister: s 132, the possibility for conflict and litigation, including by way of judicial review should such a circumstance occur, is obvious.

The interaction between s 19(1)(c)(iii) and s 25(4) further demonstrates the unworkability of the Gold & Copper Resources’ construction of the Act. The effect of the interaction between s 19(1)(c)(iii) and s 25(4) is that an exploration licence cannot be granted over land if, at the time that the application for an exploration licence is made the land is subject of an application for, inter alia, a mining lease. However, if the application for a mining lease is withdrawn, so that it ceases to have effect, the previously excluded land is added to the exploration licence. As the Minister submitted, the operation of such provisions would be unworkable, unless there were “bright line rules” as to the withdrawal of an application.

The need for “bright line rules” is also underscored by the continuation of rights pursuant to s 117 where an application is pending and the fact that there are criminal consequences if exploration and mining activities are carried out without a licence.

There is another difficulty with Gold & Copper Resources’ argument. Whilst it contended that a withdrawal other than in accordance with s 130 would have to be notified in the Gazette as required by s 136, it also contended that an informal withdrawal was not irrevocable. The consequence of this submission is that there would be different schemes governing or relating to withdrawals. Withdrawal in accordance with the statute would be irrevocable. Withdrawal by conduct would be revocable. On Gold & Copper Resources’ argument, such revocation could occur notwithstanding that notice of the withdrawal had already been published in the Gazette. The resulting confusion and possible consequences that might flow from this state of affairs are such that a revocable withdrawal, made either orally or by conduct, would make the legislative scheme unworkable.

It follows from what we have said that, contrary to Gold & Copper Resources’ submission, the Act does not permit the withdrawal of an application other than in accordance with s 130. Section 130 is contained within Pt 8, Div 1, “General procedures”. As a system of documentation and registration, it would be contrary to the scheme of the Act and its purposes to permit withdrawal of an application other than in accordance with the specific provisions of the Act. If it was intended that there could be a withdrawal of an application other than by lodging a notice, it might be expected that the Act would expressly make provision for that.

We now turn to the “new” application argument. Gold & Copper Resources contended that the effect of Newcrest forwarding a replacement page 1 was to abandon the application lodged within the statutory time prescribed by s 113(3) and to immediately thereafter lodge a new application which was out of time. Two consequences were said to flow from this: Newcrest’s intention was no longer to apply for a two year application; and the two year application ceased to exist.

Newcrest complained that the question of its intention in forwarded a new page 1 on 20 May was not raised in the court below and Gold & Copper Resources should not be entitled to raise it on the appeal. Even if this Court allowed that argument to be pursued, there was no evidence before the Court of Newcrest’s intention. All that is known is that the replacement page 1 was forwarded in response to some query or invitation from the Department.

There is also a more fundamental point to note. The application lodged by Newcrest was for the renewal of the exploration licence pursuant to s 113. The specification of the term of renewal is a particular of the application, which, in accordance with s 382, is required to be in the approved form.

As noted above, the Minister may grant a renewal for a lesser or greater term than that sought in the application. The Minister may seek further information from the applicant: s 16. Thus, if the Minister, for policy reasons, considered that an authority for a period greater than that sought in the application was appropriate, the applicant could be requested to provide additional information supporting the grant of the licence for the proposed extended period. This would not require the applicant to put in a new application, or to send in a new first page of Form 9, as in fact occurred in this case. The application for renewal would remain extant. It must follow that a new first page and additional information supporting an extended term would not result in the initial application ceasing to exist. All that has changed is a detail of the application.

Having regard to the construction we have given to the provisions of the Act in issue, it is not necessary to determine the notice of contention and certain other arguments advanced on the appeal. We would only note that Gold & Copper Resources’ reliance on the Instructions for Completing Form 9 and the primefacts sheet was misplaced. Those documents are internal departmental documents directed to providing assistance to applicants for authorities under the Act. They are not statutory documents.

The orders of the Court are: