Hearsay ... the Journal of the Bar Association of Queensland
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Issue 72 - Mar 2015
Fracturing the Prerogative* Print E-mail

mine_intro.jpgSection 8 of the Mineral Resources Act 1989 (Q) provides that minerals generally are Crown property.[1]   Yet at common law the proprietor of freehold land owns minerals there under.[2]  Statute, prerogative and common law can be reconciled.  This article shows that landholders, by constituting the Crown[3] , own minerals.  The Crown, apparently comprised of the parliamentary executive, has the exclusive right to grant mining leases.[4]

Since the Case of Mines,[5] the Executive has claimed to exhaust the Crown and its minerals prerogative.  It is a claim which the courts, including the High Court of Parliament at Westminster, have repeatedly defeated as we shall see.  The Australian High Court decision of Cadia Holdings P/L v NSW[6] offers a guide through the authorities.  On the proposed interpretation, continuing to reduce the Crown to the Executive as in Cadia is fracturing the prerogative of the Crown.

Today

“The people of Queensland, free and equal citizens of Australia … (b) adopt the principle of the sovereignty of the people, under the rule of law, and the system of representative and responsible government, prescribed by this Constitution…”.[7]  This democratic sovereignty, bearing upon the Sovereign’s prerogative as to minerals, can be reconciled with monarchic sovereignty: Her Majesty personifies the Crown which is ultimately a symbol of the sovereignty of the people of Queensland.  The parliamentary executive, the legislature and others can embody the Crown, but the Crown is ultimately a symbol.  The executive power does not exhaust the Crown.

Over centuries the exercise of sovereignty has progressively been divorced from monarchs’ personification of its symbol the Crown.  Sir Owen Dixon remarked upon the “supremacy” of the Crown trumping that of the law and the legislature, following the monarch’s surrender of personal or arbitrary judgment through the Revolution of 1688 and then responsible government in 1832.[8]

The Crown lost none of its majesty. Invested with the formal authority of the State it became the visible sign of national power. The Sovereign remains at the head of each member of the British Commonwealth and its powers are exercised in [her] name. Thus in the end we return to a conception of the supremacy of the Crown. 

Yet, with respect, this view equates the Crown and its majesty merely with supreme executive power.

In the Case of Mines[9] the monarchic Executive purported to exhaust the Crown.  The courts agreed that it alone bore the Crown’s prerogative.  But they then curtailed that prerogative because the Crown made too large a claim over minerals.  It fell to the Revolution of 1688 to differentiate the Crown with its presumption of legality and honour,[10] from the monarchy which parliamentarians immediately restored by investing the Executive with that presumption.  The Revolution established the sovereignty of the King in Parliament instead.  To be precise it differentiated the Crown in Council, from the Crown in Council in Parliament,[11] and then upheld the latter as ultimate.  Only by acting ultimately through that autonomous forum did the political supremacy of the monarchic Executive now amount to the lawful sovereignty of the Crown, under the parliamentary rule of law.[12]

Three hundred years later however, the Crown has again been reduced to the Executive alone, specifically in its prerogative over minerals.  That is despite the Executive fracturing into the parliamentary executive and the monarchic Executive, and having federal, State and Territory forms in Australia in addition to its British incarnation.  In D’Aguilar Gold Limited v Gympie Eldorado Mining Pty Ltd[13] for example, Atkinson J recounted the eight principal objectives of the Mineral Resources Act 1989 (Qld):

“2          Objectives of Act

              The principal objectives of this Act are to –

(a) encourage and facilitate prospecting and exploring for and mining of minerals;

(b)  enhance knowledge of the mineral resources of the State;

(c) minimise land use conflict with respect to prospecting, exploring and mining;

(d) encourage environmental responsibility in prospecting, exploring and mining;

(e) ensure an appropriate financial return to the State from mining;

(f) provide an administrative framework to expedite and regulate prospecting and exploring for and mining of minerals;

(g) encourage responsible land care management in prospecting, exploring and mining.”

Her Honour then observed that s 6 defines mineral substance, adding that “Minerals, as defined, generally remain the property of the State”,[14] noting s 8 of the Act.  Section 8, however, refers to the “Crown’s property in minerals”.  Only if one abbreviates the Crown to the executive power and the State alone, does the State’s financial claim to minerals exhaust the Crown’s property.  Particularly in an age of privatisation and contracting out, the Crown need not be limited to Renaissance or Victorian conceptions of the state.

The High Court later explored the minerals prerogative at length in Cadia Holdings P/L v NSW,[15] delineated below.  Their Honours attenuated conceptions of the Crown, and “the public” which owns minerals, to the Executive and the state.  Presently it is as if the Revolution of 1688 never differentiated the sovereignty of the Crown from the supremacy of the Executive.  It is as if the rule of law established by the Glorious Revolution is merely executive supremacy, exerted through the legislature alone.  The minerals prerogative of the Crown has been shrunk to the minerals power of the Executive, as in the Case of Mines.  By tracing that prerogative and its development we can understand the minerals prerogative today.

The Sixteenth Century

In Cadia Holdings P/L v NSW,[16] Chief Justice French traced the minerals prerogative from the Case of Mines[17] and the later Revolution in 1688:

In 1568, an English court held that the Crown had the prerogative right to mines of gold and silver and other metals … Those events, which occurred more than three centuries ago, determine today the amount of royalties payable ….[18]

In the sixteenth century the Executive purported to exhaust the Crown, a claim the courts accepted.  They then curtailed the Crown, to subject the Executive to the rule of law.

The Attorney-General claimed that the royal prerogative entitled Elizabeth I to all mines of gold and silver.[19]  “The lady the Queen” was also entitled to “other metals whatsoever containing in themselves gold or silver, with all things concerning them, which may or can be found…”[20] within the realm or its dominions.  All the Justices and the Barons of the Exchequer recognised that the right to mines of gold or silver vested in the Crown, which they identified solely with the monarchic Executive.  Yet the prerogative fractured.

Nine out of twelve judges in the Case of Mines held that through its prerogative the Crown possessed gold or silver in a mine, but not copper, tin, lead or iron.  Their compromise acknowledged that there are no royal mines of copper free from gold or silver, and “there is no mine of tin without silver”.[21]  Yet the royal metals were severed from the base metals.

The Crown was identified solely with the monarch and hence the Executive, fragmenting its nascent minerals prerogative.  The Executive also claimed “the right to enter the land of the subject to dig and carry away the ore of gold”,[22] and not other minerals.  As to actually digging and carrying away, over three centuries later Griffiths CJ knew of “no instance recorded in which the Crown has exercised that right”.[23]  This differentiation of the royal metals of gold and silver did pare monarchic claims over minerals down to two metals, whereas some Continental monarchies claimed all mines.[24]  Yet it helped to fracture the minerals prerogative of the Crown.

The courts limited Executive claims made in the name of the Crown and its prerogative, to subject the political supremacy of the Executive to the rule of law.  This was even before the Revolution of 1688 delineated the rule of law more exactly.  Yet the juxtaposition of the Crown and prerogative, with the rule of law, has survived as we shall see.

The Case of Mines split royal metals from base metals, dividing the Crown’s prerogative over gold and silver, from its prerogative over base metals.  Four hundred years later, ss 8 and 9 of the Mineral Resources Act 1989 (Q) for example, differentiate gold, coal and all minerals, despite then equating them as Crown property.[25]

Even the justification for the Case of Mines was fragmented, by both the court and later commentators.  The court identified the need for coinage, the defence of the realm, and the excellence of the monarch attracting other excellent things such as gold and silver, at the root of the decision.  Commentators focused on one or other of such justifications, as French CJ remarked in Cadia.[26]  Coke and Blackstone relied upon the prerogative over coinage; Chitty, on the danger of a subject becoming “too formidable”.[27]  The fractured minerals prerogative continued to feature in the common law, despite one Californian judge in the nineteenth century disdaining those justifications.  That judge saw how the Case of Mines identified the Crown with arbitrary power rather than the rule of law:

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 ground that the mines were required as a source of revenue.[28]

Yet the Crown need not be identified solely with the arbitrary supremacy of an unrestrained Executive.  Instead it is submitted that minerals at large are Crown property, but the Crown is ultimately a symbol of sovereignty rather than just the politically supreme Executive which frequently embodies that symbol.

The identity of the Sovereign, whose sovereignty is symbolised by the Crown, then comes into focus.  Had the Case of Mines not condensed the Crown to the Executive, miners could have conducted their operations as another form of the Crown.  The forms of the Crown would have been multiplied rather than the fracturing the applications of the prerogative from each other.  Miners could have paid the monarch a “royalty” for the privilege of participating in sovereignty, however large for particular minerals such as gold and silver.  All metals could have been “royal” minerals.  The fundamental separation from base metals need never have troubled the courts as in Cadia Holdings P/L v NSW[29] for example.

This is of course the modern view, projected back to the 1500s, a century before the Revolution of 1688 imposed upon the monarch the Crown-ness or “sovereignty” of Parliament.

mine_02.jpgThe Seventeenth Century

For all of its compromise the Case of Mines did not settle the minerals prerogative, or even miners’ claim to it.  Uncertainty attended the proportion of gold needed to attract the precedent.  A further accommodation appeared in 1640-1: the base metal belonged to the Crown if the value of the gold exceeded the cost of its refinement, or if that value exceeded that of the base metal spent in refinement.[30]  However, the largest change in the prerogative during the seventeenth century was the location of its ultimate exercise.  Here we must temporarily part company with Cadia as a guide to the minerals prerogative.

The High Court of Parliament

The phrase has become a malediction.  Apartheid legislation in the 1950s gave the South African legislature power to judge its own legislation under its High Court of Parliament Act 1952, an Act firmly rejected by Centilivres CJ and the South African Supreme Court in Harris v Minister of the Interior.[31]  Lord Steyn also condemned the High Court of Parliament in that sense;[32] a sense quite similar to that used by Australian Minister for Immigration Phillip Ruddock who claimed that the Australian “High Court of Parliament” was asserting the conclusivity of decisions by its delegate the Migration Review Tribunal.[33]

But at the founding of the sovereignty of Parliament, in the seventeenth century, the Lords sat as the supreme court of England and Wales as an ordinary part of their parliamentary duties.  The Crown and Parliament Recognition Act 1689 used the phrase when establishing the new constitutional order after the Revolution:

Wee Your Majestyes most humble and loyall Subjects the Lords Spirituall and Temporall and Commons in the present Parlyament assembled doe beseech your most excellent Majestyes that it may be published and declared in this High Court of Parlyament and enacted by authoritie of the same …

The supreme court of England and Wales was part of the High Court of Parliament; a “supreme court – legislature” which the Lords constituted in two capacities.  Only in O’Connell v The Queen[34] did the supreme court of the United Kingdom later specialise and separate from the upper house of the legislature, and therefore the legislature at large.  Australian colonies similarly separated courts from the legislature in the nineteenth century, as did the Australian Federation in 1901 when establishing the High Court of Australia as separate from the national Parliament, described below.

The curiality of post-medieval Parliaments is barely mentioned in the literature on the High Court of Parliament.  Thus, De Smith and Brazier[35] recall that once “the High Court of Parliament was a judicial as well as a legislative body”,[36] but do so largely to discuss only bills of attainder.  In Erskine May, parliamentary power to punish for contempt is derived from the legislature descending from the undivided medieval High Court of Parliament,[37] but the later O’Connell[38] separation of the supreme court from the legislature is not analysed, let alone its consequences for the sovereignty or privileges of Parliament.  Likewise, Halsbury’s Laws of England refers to the appellate jurisdiction of the medieval High Court of Parliament when discussing courts and tribunals.[39]  But it truncates the High Court of Parliament to “The House of Commons together with the House of Lords and the Sovereign”,[40] without asking whether the supreme court of the United Kingdom continues to constitute the High Court of Parliament, since its separation from the legislature and the abolition of the judicial House of Lords.

Jeffrey Goldsworthy neglects the judicial House of Lords after the emergence of a specialised legislative function in Parliament, in the 1640s.[41]  In this respect his work resembles that of C.H. McIlwain,[42] and A.F. Pollard,[43] who each emphasised the curiality of the medieval High Court of Parliament but overlooked how the supreme court of England and Wales, and later the United Kingdom, continued to constitute part of “Parliament”.  The learned author’s otherwise comprehensive analysis of Parliament is thereby skewed away from upholding judicial independence from political power, in favour of the enduring political supremacy of the Executive, now the Executive in the legislature.  Rather than recognising a dualistic “supreme court – legislature” bearing the judicial and legislative prerogatives of the Crown, the legislature is characterised as a purely political forum that wields the legislative power of the Executive, as if that alone amounts to the Crown’s prerogative.  The Crown’s legislative prerogative is compressed to an unmediated assertion of supreme executive power as enacted through the legislature, whose majority itself appoints the parliamentary executive.

Instead, the Glorious Revolution required executive power to act ultimately through an autonomous forum, the “supreme court – legislature”.  The High Court of Parliament established an Executive duty to act “judicially – legislatively”,[44] it is submitted.  Parliamentary autonomy also mended the fractured minerals prerogative. 

The minerals prerogative in the seventeenth century

James II claimed to suspend the application of legislation discriminating against Dissenters and Catholics.[45]  While his concern for certain minorities’ human rights can be admired, he thereby asserted an extra-Parliamentary prerogative as superior to his prerogative inside Parliament.

James failed to demonstrate that claim, in response to the Revolution of 1688 and legislation such as the Crown and Parliament Recognition Act 1689.  Thereafter the High Court of Parliament was recognised as the most autonomous and therefore ultimate forum of the monarchic Executive.  We must not assume that a parliamentary executive was immediately established, by a legislature acting alone, for that would be to insert “legislative supremacy” into the seventeenth century.  Instead the King’s Council was no longer the forum through which the monarchic Executive could act to invest his power with an independent and conclusive stamp of authority.  The autonomy founding the prerogatives of sovereignty which the Crown symbolises, a symbol which the monarch still personifies today, now originated in the parliamentary forum, a supreme court and legislature.[46]  The High Court of Parliament demonstrated its autonomy by showing that the Executive had no superior external prerogative that could trump prerogatives inside that forum.

The Bill of Rights in 1688 set out the new order.  Following the Revolution the Sovereign acted ultimately inside the parliamentary court, to make law, suspend law, and tax for example.  Under the heading of “Levying Money”, the Bill of Rights accused James II and his advisors of subversion.  It later declared in very similar terms: “That levying Money for or to the Use of the Crowne by pretence of Prerogative without Grant of Parlyament for longer time or in other manner then the same is or shall be granted is Illegall”.  Yet the Sovereign who wielded the judicial, executive, and legislative prerogatives was no longer the Executive exercising such powers unilaterally but the dualistic, sovereign king-in-Parliament; hence the “sovereignty of Parliament”.  AF Pollard remarked that “The revolution of 1688 weakened the king, but strengthened the crown”.[47]

In Cadia Holdings P/L v NSW[48] the High Court of Australia related Revolutionary legislation as to minerals, to the Case of Mines.  The dispute turned on characterising the copper intermingled with gold on the appellants’ lands.  The Royal Mines Act 1688 provided that the presence of royal metals did not render a mine a royal mine from which miners of copper, tin, iron, or lead were excluded.  The primary judge in Cadia, with whom the High Court agreed, saw the Royal Mines Act 1688 as encouraging metal extraction by curtailing the prerogative: 

There is no doubt … that the purpose of the [Royal Mines] Act was to remove the Crown’s prerogative right to the specified metals where the subject would be discouraged from working deposits of them because they also contained royal metals…[49]

Instead it is respectfully submitted that the Royal Mines legislation actually established the Crown’s prerogative over the specified minerals, by differentiating the Crown from the Executive.

If the Crown is reduced to the Executive alone, its prerogative can be very readily identified with sheer executive power, which the Act clearly abrogated.  Instead, the Crown also has a legislative prerogative.  The Crown offers a model for constitutional development, rather than merely persisting as an anachronistic Renaissance imposition upon modern jurisprudence.  The Crown can be considered ultimately as a symbol of sovereignty, one the Executive may embody rather than exhaust, by acting through an autonomous forum; the High Court of Parliament.

The Royal Mines Act 1688 actually instituted the Crown’s prerogative right to the specified metals.  It established that claims by the monarchic Executive did not exhaust that prerogative.  Therefore the presence of royal metals, and royal claims there, did not render an ordinary mine a royal mine.

The Glorious Revolution restored the Crown and its prerogative.  The autonomy of the High Court of Parliament now founded the sovereignty symbolised by the Crown, rather than unmediated executive power doing so.  Parliamentary autonomy gave the Crown and even monarchy an independent stamp of authority, one that trumped the recent disgrace of James II.  Sovereignty, its symbol the Crown, and the prerogative had moved.  They had transferred from the isolated monarchic Executive, not to a parliamentary executive but to a joint entity in a joint entity; the monarchic Executive in the High Court of Parliament.  The King in Parliament, a supreme court and legislature, now exercised sovereignty.  The sovereignty of Parliament, defined thus, perpetuated the monarchy.  For an end to monarchy we must look to the American and French Revolutions in the eighteenth century, rather than the English Revolution in the seventeenth century.

Miners participated in the sovereignty won by the parliamentary court.  The presence of royal metals no longer rendered a mine a “royal” mine; the exclusive purview of a Crown which continued to be identified with the monarch alone.  This encouraged Crown subjects to work deposits which may also contain gold and silver.  The presence of royal metals no longer excluded non-royals.  The sovereignty of the High Court of Parliament, unlike monarchic sovereignty as asserted in the Case of Mines, was inclusive.

The Case of Mines had acknowledged that at common law, minerals vest in the landowner, before carving out an exception for gold and silver.  That exception proceeded to expand and culminate in the current position where all minerals are in effect said to be “royal” minerals, so far as all minerals are said to belong to the Crown which is then identified with the Executive alone.  The Case of Mines also juxtaposed the prerogative with the rule of law, requiring courts to curtail what they saw as the prerogative, to uphold the rule of law.

The Revolution instead founded the Crown, its prerogative and the parliamentary rule of law, upon the autonomy to define supreme power.  Supreme power itself, which the Executive continued to exercise, was no longer exhaustive.  In place of the supremacy of the monarch, the sovereignty of “Parliament”, a supreme court and legislature, now founded the rule of law and hence the minerals prerogative as in the Royal Mines Act 1688.  The abstraction of the Crown from executive power enhanced monarchy, as a symbol.

The Nineteenth Century

Responsible government

In 1832 a parliamentary executive replaced the monarchic Executive, establishing responsible government.[50]  The legislature thereby ceased to comprise an independent forum which in itself could be presumed to give an independent stamp of authority to the Executive, despite the Glorious Revolution having earlier established the Crown as an independent stamp of authority.  Responsible government pared the Crown to the Executive, and the Crown’s prerogative to an assertion of executive power.  The legislature no longer offers an autonomous forum that can define the prerogative independently of the Executive’s supremacy.  No political forum now offers the autonomy originating in the High Court of Parliament as in 1688.

Politically speaking, parliamentary autonomy has been shrivelled to parliamentary supremacy, a mere assertion of executive supremacy in the legislature or “legislative supremacy”, as Dicey described it.[51]  This fact explains much political theory in constitutional jurisprudence today, particularly the ultra vires doctrine in the United Kingdom.[52]  The participation of the supreme court of England and Wales in “Parliament” has been neglected.  Therefore judicial review of legislation is limited to what the legislature itself approves, as if the supreme court was not part of Parliament at the establishment of the sovereignty of Parliament.

O’Connell

In 1844 however, the potential for parliamentary autonomy was restored.  In O’Connell v R[53] the supreme court of the United Kingdom was recognised as specialised and separate from the legislature, and hence from the executive power in the legislature, just as the separation of the common law courts from the executive branch had been recognised in Case of Prohibitions.[54]

This restored the parliamentary capacity to define the prerogative, independently of Executive supremacy in both the executive branch and the legislature.  Since O’Connell the High Court of Parliament can again offer the autonomy founding the sovereignty symbolised by the Crown at the Revolution of 1688.  The specialised and separate supreme court can provide a forum through which the prerogative can again be autonomously defined and exercised.  As at the Glorious Revolution, the executive power need no longer preclude the High Court of Parliament’s autonomously definition of the prerogative.

In 1844 “Parliament” acquired its modern, specialised meaning of a legislature alone.  That independence was recently demonstrated in Jackson v Attorney General.[55]  The supreme court rather than the legislature, the executive branch or the monarchy was shown to originate the autonomy founding the validity of legislation, even after the Hunting Act 2004 (UK) received royal assent.

Two centuries earlier The Prince’s Case asserted the common law jurisdiction to determine the validity of purported statutes.[56]  But the supreme court membership also sat as the upper house of the legislature.  The supreme court could hardly have sat as an independent forum in an appeal.  At the Glorious Revolution and later, the supreme court of England and Wales and the subsequent United Kingdom was part of “Parliament”.  The Lords sat as the supreme court in addition to constituting the upper house of the legislature, in the “High Court of Parlyament”.[57]  It is only through O’Connell in 1844 and Jackson in 2005 that the autonomy to define supreme power was finally differentiated from an executive forum, including the legislature; showing that the judicature and not the legislature originates that autonomy in the United Kingdom as well as in Australia.

It is of great importance to the minerals prerogative in Australia.  In Jackson the courts were shown to originate the autonomy founding the sovereignty symbolised by the Crown, a symbol Her Majesty continues to personify.  That origination provides for the differentiation of sovereignty from the monarch, as at the Revolution of 1688.  Accordingly sovereignty is phrased democratically in the Constitution of Queensland 2001, as that “The people of Queensland, free and equal citizens of Australia … (b) adopt the principle of the sovereignty of the people, under the rule of law, and the system of representative and responsible government, prescribed by this Constitution…”.[58]

Since 1844 executive power can no longer simply assert its enduring political supremacy, to wield the Crown’s prerogative.  Instead, like the monarchic Executive before it, the parliamentary executive is required to act through an independent forum, if it is to acquire the independent stamp of authority as symbolised by the Crown.  As in the seventeenth century, executive power can be invested with an autonomy that is not merely its own supremacy, as was that of James II before the Revolution.

However, Jackson showed that the supreme court alone, rather than the legislature also, presently originates the autonomy founding the sovereignty symbolised by the Crown.  The courts can still defer to the legislation of the High Court of Parliament, without deferring to mere Executive supremacy.  Yet the part of the High Court of Parliament which originates parliamentary autonomy, to which the courts can lawfully defer, is now distinct from the legislature.  In the United Kingdom it requires continuing to identify the Supreme Court as part of the High Court of Parliament, even after the Constitutional Reform Act 2005 established the new Supreme Court as separate from the Westminster Legislature.  The supreme court can define executive power independently of the legislature.  The autonomy founding the sovereignty symbolised by the Crown now originates in a forum that is separate from both the executive branch and the legislature.

mine_03.jpgThe colonial Crown

In accordance with O’Connell separating the supreme court from the legislature, Australian colonial legislatures were established separately from their respective supreme courts in the nineteenth century.  Such Parliaments, like Parliaments today, were separate from the Federal, State, and Territory Supreme Courts[59] that originate the autonomy founding the sovereignty symbolised by the Crown.

Just before O’Connell, Kielley v Carson[60] showed that such a Parliament is not a High Court of Parliament.  The Newfoundland Parliament possessed “only such powers as are reasonably necessary for the proper exercise of its functions and duties as a local legislature”.[61]  The British House of Commons, however, was part of the High Court of Parliament.  It possessed the power of arrest, with a view to adjudication on a contempt committed out of the House, by virtue of the ancient law of Parliament.[62]

Appleby et al summarise the colonial development of key Australian institutions.[63]  Australians were quick to use the Australian Constitutions Act (No 2) 1850 (Imp), and constitute responsible government and bicameral legislatures.[64]  Each colony established its Parliament as a legislature alone, separately from specialised supreme courts, rather than establishing High Courts of Parliament in Australia.  A supreme court was not part of the Queensland Parliament which opened on 22 May 1860, following Queensland’s separation from New South Wales on 6 June 1859 by Letters Patent.  The specialist and separate Supreme Court at Brisbane, later the Queensland Supreme Court, was founded on 7 August 1861.  The Constitution Act 1867 (Imp) consolidated the applicable constitutional documents.

Australian legislatures are not “High Courts of Parliament”.  Here, “Parliament” denotes a legislature that is separate from the judicature.  Australian colonies established their supreme courts separately from their legislatures, sometimes even before O’Connell.[65]  Accordingly at federation the Federal Supreme Court was established separately from the federal Parliament.

Australian legislatures cannot claim the sovereignty of “Parliament”, a supreme court and legislature at the Glorious Revolution, which established the parliamentary rule of law.  In Australia the autonomy to define the judicial, executive, and legislative prerogatives independently of supreme executive power, founding the sovereignty symbolised by the Crown as at the Revolution, now originates solely in the judicature.  Neither the executive branch nor the legislature can be presumed to enforce the rule of law, devoid of the autonomy originating in the judicature.  As Brennan J observed in Church of Scientology v Woodward:[66]

Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.

In Australia jurisdictional error is the basis of the rule of law.[67]  Curial autonomy imbues “legislative supremacy” with legality. Without that autonomy, executive supremacy itself is exercised through the legislature from which the parliamentary executive itself is drawn.  It cannot offer a presumption of conformity with the rule of law, demonstrated in 1688 as requiring supreme power to act ultimately through an independent forum.  Since 1832 legislative supremacy cannot found the Crown, in the sense of an autonomous definition of prerogatives as to minerals or other matters, independently of supreme executive power.  To claim that it does is to assert unmediated executive power; the lawless supremacy of James II which the sovereignty of Parliament itself originally overcame at the Glorious Revolution.

Thus, the parliamentary executive has not simply replaced the monarchic Executive as the Sovereign.  Accordingly the Constitution of Queensland 2001 clearly states the sovereignty of the people.  Landholders and others can participate in the mineral prerogatives of the Crown, which illuminate Cadia, considered shortly.

Torrens title

Property law and specifically Torrens title are rarely related to mining law, despite the landholder owning minerals in common law as we saw earlier.  Yet it is submitted that Torrens title offers a mild and systematic precedent for the minerals prerogative today.

Indefeasibility founds Torrens title.[68]  Yet the legislative and judicial exceptions do not truly undo indefeasibility, it is submitted, because the autonomy founding indefeasibility originates in the judicature rather than the executive branch that grants title, in which that autonomy merely vests.  We saw in Jackson[69] how the judicature originates the autonomy vesting in the legislature and the Crown generally.  It is that autonomy to define even supreme power, which frees land title-holders from encumbrances upon previous incarnations of that title.  Thus, indefeasibility is based upon the independence to define supreme power that has founded the sovereignty symbolised by the Crown since 1688.  Judicial decisions which are final and binding and yet appealable to higher, more autonomous courts.  Likewise Torrens grants indefeasible Crown title to each registered land purchaser, even where the Executive is not a party to the purchase, and yet there are exceptions at ss 184(3) and 185 of the Land Title Act 1994 (Qld), ss 15 and 186 powers to correct the register, overriding statutes, and inherent common law rights.[70]  The joint judgment in Cadia related the minerals prerogative to Torrens title.

Cadia

Three points from the decision pertain to the minerals prerogative.  In separate judgments French CJ and the plurality each traversed, among other matters, the manner in which Australian conditions for the prerogative differed from its English origins.  They also explored Woolley v Attorney-General (Vic),[71] and Wade v NSW Rutile Mining Co Pty Ltd.[72]

Conditions in New South Wales and Victoria were very different to those in England,[73] particularly regarding the “squatting question”.  Yet Crown title to all minerals found on private or public lands could still be upheld locally, through digging licences granted on easy terms, as suggested by advisers to Governor Fitzroy in an 1851 compromise.  It also thereby provided revenue to the Crown,[74] in a manner like that expressed above, in terms of the executive acquiring more royalties by expanding the identity of the Sovereign.  Substantial miner’s licence fees were replaced by the “miner’s right” upon payment of a small fee, and New South Wales and Victoria imposed export duties on gold in its natural state.  The Cadia plurality described the Miner’s Right as entitling one with authority to enter and conduct mining processes by lessees, and cited C W O’Hare.[75]  O’Hare had also stated exceptions in the case of “roads, towns, improved land etc”.[76]

In Woolley v Attorney-General (Vic)[77] the Privy Council described the bill against the respondent as contesting a point that was extremely narrow, though potentially of considerable importance.  At issue was “simply whether upon the sales of waste lands of the Crown, which are set forth in the bill, the gold that might be found in such land passed to the purchasers, there being no words in the grants from the Crown expressly granting it”.[78]  It had been alleged, in particular, that the defendant company had sunk a shaft adjacent to the appellants’ land, and extracted large quantities of auriferous earth and gold therefrom.  Further, the “Respondent pretended that Her Majesty the Queen was entitled to all gold in the lands so vested in the Appellants; and Her Majesty, or he on her behalf, was alone entitled to relief”.[79]

The Privy Council considered whether a particular mining statute had modified the common law prerogative, such that “a sale of waste lands under that statute must be taken to include a grant of the gold and silver that may be found under the lands so granted”.[80]  Crucially, since the Case of Mines, and whatever the reasons assigned there, and “whether they approve themselves or not to modern minds”[81], “the prerogative right of the Crown to gold and silver found in mines will not pass under a grant of land from the Crown, unless by apt and precise words the intention of the Crown be expressed that it shall pass”.[82]  The Crown was the Executive alone, whose prerogative had not been modified.  It retained the metals.

However, statute is a legislative form of the Crown prerogative.  The Royal Mines Act 1688 in particular redefined the minerals prerogative, by providing for its exercise by persons other than the monarch.  Further, it is clear that the appellants received a title from the Crown.  Rather than the Executive alone constituting the Crown even after 1688 and so extinguishing Crown title upon each alienation of title from the Executive, the Crown can be considered as multiplying the forms of its title, through the appellant also constituting the Crown by acquiring title.

Counsel disputed the extent of prerogative rights, recognised by the common law, to publicly owned minerals subject to royalty provisions.[83]  Identifications of the Crown with the Executive alone were not disputed.  The court adopted this view, attenuating the prerogative to arbitrary executive power it is submitted, which the common law yet recognises.  It is Blackstone’s prerogative, which is out of the ordinary course of the common law, and concerns executive enjoyment of “preferences, immunities and exceptions peculiar to it and denied to the citizen or, more specifically, of an exceptional right which partakes of the nature of property”.[84]

In Cadia the Crown and its prerogative were founded upon executive power, rather than the rule of law requiring that the prerogative be defined independently from supreme power.  This cast the prerogative in a narrow, wizened, and brittle form.  It is differentiated from the autonomy founding the sovereignty symbolised by the Crown and originating in independent courts since O’Connell, rendering it susceptible to displacement by an autonomous forum as in Cadia.  Prerogative and sovereignty were juxtaposed with the rule of law, rather than the court identifying the appellants also as the Crown, thereby multiplying the forms in which the Crown occurs.  Instead, in a democratic age the Crown is associated with the monarchic Executive and its successor the parliamentary executive.  Its arbitrariness carves out an exception to the rule of law, rather than Sovereign according with the rule of law and upholding it as Blackstone’s “fountain of justice” and “parent of honour, office and of privilege”[85] might be expected to do.

The last relevant Cadia point was from Wade v NSW Rutile Mining Co Pty Ltd.[86]  The plurality related it to land title,[87] mentioning that the particular Crown grants in the present matter preceded Torrens title.  Sir Victor Windeyer acknowledged that the law had always carved out an exception for the royal metals:

Gold in the Australian colonies belonged always to the Crown, whether it was in Crown land or in lands alienated by the Crown. No express reservation was necessary to preserve the Crown’s rights. They depended upon prerogative rights recognised by the common law. Thus gold did not pass by a Crown grant of the land in which it lies.[88]

Instead we have seen that the Executive does not exhaust the Crown and its prerogative right.  Despite the Case of Mines, the Glorious Revolution and the Royal Mines Act 1688 re-established the Crown and its minerals prerogative upon parliamentary autonomy, multiplying the forms of the Crown rather than confining them to a monarchic Executive alone.  Gold need not pass from the Crown by a grant, but can still pass to the landholder, a form of the Crown itself.  Both Woolley and Wade can be distinguished on the basis that the courts did not consider that the landholder as a form of the Crown.

Even after the Case of Mines, and especially after 1688, the executive could have differentiated the price of gold royalties from other minerals, rather than imposing its differentiation of the Crown and its prerogative from the common law, upon the common law whereby landholders own the minerals under their land.

The Cadia plurality said that the dispute turned upon the extent of the common law prerogative in England and then Australia, and now reflected in the term “publicly owned mineral” in later legislation.  In Queensland however, minerals are not described as “publicly owned”.  Instead s 8 of the Mineral Resources Act 1989 (Q) provides that minerals generally are Crown property.  Landholders can constitute the Crown, alongside the legislature, the parliamentary executive, and the monarch, in accordance with the sovereignty of the people as stated in the Queensland Constitution.  To limit the Crown to the monarchic or parliamentary executive, is to continue fracturing the prerogative.

mine_01.jpgConclusion

The Case of Mines reduced the Crown to the monarchic Executive, attenuating the Crown’s prerogative over minerals generally.  A power over just the “royal” metals, gold and silver, was identified as the Crown’s minerals prerogative, carving out an exception from the common law rule that landholders own minerals under their land.  Legislation establishing the Crown’s minerals prerogative in Queensland, the Mineral Resources Act 1989, does not even mention the prerogative, but instead simply asserts the “Crown’s property in minerals”.  It is much clearer because of that, rather than acknowledging the minerals prerogative and then associating it solely with the monarch.

Sovereignty has moved from the monarchic Executive.  The Revolution of 1688 differentiated sovereignty from supremacy, and prerogative from sheer executive power, by demonstrating that the autonomy to define the prerogative independently of supreme power founds the Crown.  Accordingly the Queensland Constitution clearly states the sovereignty of the people of Queensland, rather than the parliamentary executive simply replacing the monarchic Executive as the Sovereign.  Landholders can participate in the prerogatives of sovereignty, specifically the Crown’s minerals prerogative.  Power over minerals need not continue to be identified solely with the fracturing executive, fracturing the prerogative.



* Tom Spencer, PhD candidate, Queensland University of Technology.

Footnotes 

[1] Despite several exceptions, the generality of the claim can be seen in s 8 providing: “Crown’s property in minerals    (1) Gold on or below the surface of the land is the property of the Crown.

    (2) Coal – (a) on or below the surface of land that was acquired by the Crown as provided in the Agricultural Lands Special Purchase Act 1901 and subsequently alienated in fee simple by the Crown is the property of the Crown;

      (b) on or below the surface of the land (other than land referred to in paragraph (a)) is the property of the Crown except where that land was alienated in fee simple by the Crown before 1 March 1910 and the grant of that land did not contain a reservation to the Crown of the property in that coal.

   (3) All minerals (other than coal and gold but including minerals dissolved or suspended in water within or upon the earth’s crust) on or below the surface of the land in Queensland other than land alienated in fee simple by the Crown pursuant to [three named sections in three listed Acts] are the property of the Crown.

   (4) Each deed of grant or lease of unallocated State land must contain a reservation of –

                         (a) minerals on and below the surface of the land; and

                         (b) the right of access for prospecting, exploring or mining.

   (5) Mineral on or below the surface of the land that is or becomes road is (to the extent of the mineral, but for this paragraph would not be the property of the Crown) on and from the date the land becomes or became road, the property of the Crown”.

…”

[2] R v Earl of Northumberland (Case of Mines) (1567) 1 Plowd 310; 75 ER 472 at 510. See J Southalan, The Laws of Australia, “14. Environment and Natural Resources, 14.12 Mining [14.12.10]”. The exception as to gold and silver, established by the Case of Mines, appears below.

[3] As to difficulties generally with the Crown as truncated to the Executive, see Sue v Hill [1999] HCA 30 at [67] – [97]; N Seddon, “The Crown” (2000) 28 Fed LR 245; M Sunkin and S Payne (eds), The Nature of the Crown: A Legal and Political Analysis (Oxford, OUP, 1999).

[4] See s 9, Mineral Resources Act 1989 (Q) “Exclusive right of Crown to grant mining leases etc. irrespective of ownership of material”.

[5] (1568) 1 Plowden 310 [75 ER 472].

[6] Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27.

[7] Preamble, para (b), Constitution of Queensland 2001 (Qld). Section 3 provides that it “declares, consolidates and modernises the Constitution of Queensland”.

[8] O Dixon, “The Law and the Constitution” (1935) 51 LQR 590, p 614.

[9] (1568) 1 Plowden 310 [75 ER 472].

[10] The monarch and hence the Crown was articulated as the fountain of honour, by W Blackstone, Commentaries on the Laws of England (1765) bk 1, p 269, vol 1, Philadelphia 1872 (electronically - Gale, The Making of the Modern Law, 2015).

[11] The participation of the supreme court of England and Wales in “Parliament”, through the Lords constituting the supreme court as an ordinary part of their parliamentary duties, is explicated below. As to the growth of the Crown in Parliament see AF Pollard, The Evolution of Parliament, (Longmans, Green, 1926), Chap 13. For instance, at p 261: “The crown is, indeed, the core out of which the rest of parliament has grown; for the crown expanded into the ‘crown in council,’ and then into the ‘crown in council in parliament’”.

[12] T Spencer, “An Australian rule of law” (2014) 21 AJ Admin L 98 at pp 99-101.

[13] [2006] QSC 326.

[14] [2006] QSC 326 at [7].

[15] Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27.

[16] Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27.

[17]  (1568) 1 Plowden 310 [75 ER 472].

[18] Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27 at [1].

[19] Case of Mines at 336; [75 ER 472] at 511.

[20] Case of Mines at 310.

[21] Case of Mines, at 497.

[22] Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27 at [82]; per Gummow, Hayne, Heydon and Crennan JJ. They were citing [2008] NSWSC 528 at [17].

[23] Hutchinson v Scott (1905) 3 CLR 359 at 367.

[24] Cadia, (2010) 242 CLR 195, per Gummow, Hayne, Heydon and Crennan JJ; Cf Lewis, The Stannaries (1908), pp 69-74; Holdsworth, A History of English Law, 7th ed (1956), vol 1, pp 151-152.

[25] The provisions set out the Crown’s property in minerals, and the exclusive Crown right to grant mining leases. They are explicated below.

[26] Cadia, (2010) 242 CLR 195, per French CJ at [13]–[14].

[27] Chitty, A Treatise on the Law of the Prerogatives of the Crown (1820), p 145. 

[28] Moore v Shaw 17 Cal 199 at 222 (1861), 79 Am Dec 123 at 135, per Field CJ of California. cf Cadia at [13], per French CJ. See also Gummow, Hayne, Heydon, and Crennan JJ at [85].

[29] Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27. C W Pincus QC defined the decision as the Court preferring to describe a mine containing valuable copper and gold as a mine of copper and a mine of gold, rather than as a mine of copper and gold” – Case note, (2010) 85 ALJ 17 at p 21.

[30] Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27 at [82] per Gummow, Hayne, Heydon and Crennan JJ at [96].

[31] [1952] (2) SA 428 (Appellate Division).

[32] Jackson v Attorney General (2005) UKHL 56; (2006) 1 AC 262. The legislation was the Fox Hunting Act 2004; cf T. Spencer, “An Australian rule of law” (2014) 21 AJ Admin L 98 at p 103.

[33] Mr Ruddock described Migration Review Tribunal powers thus: “…And what I have said to the Parliament is, look, we’ve passed this legislation, this was a decision of the Parliament. The High Court of Parliament is saying decisions of the Tribunal should be final and conclusive and if we need to give the court some further advice we may need your support again”, on the Channel 9 “Today” program (30 May 2002); cited by Frank Brennan SJ, “The limits of judicial review in migration decisions – an international perspective”, http://www.uniya.org/pdf/brennan_12nov03.pdf, viewed 23 January 2015.

[34] (1844) 11 Cl & Fin 155 at 421.

[35] S De Smith & R. Brazier, Constitutional and Administrative Law (Penguin: London, 1998).

[36] S De Smith & R. Brazier, Constitutional and Administrative Law (Penguin: London, 1998), p 309.

[37] T Erskine May, Treatise on the law, privileges, proceedings and usage of parliament, 22nd edn (Butterworths: London, 1997), pp.75-76, 152. See also the Report of the Committee on Contempt of Court, Cm. 5794, (1975), para.2.

[38] O’Connell v. R (1844) 11 Cl. & Fin. 155; 8 E.R. 1061.

[39] Halsbury’s Laws of England, “Courts and tribunals”, Vol 24, (2010), “The Supreme Court of the United Kingdom”, 640. “Origins of appellate jurisdiction”.

[40] Halsbury’s Laws of England, “Legal Professions”, Vol 65, (2015), 845. “The High Court of Parliament”.

[41] J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon Press, Oxford, 1999), pp 132-135; cf T Spencer, “An Australian rule of law” (2014) 21 AJ Admin L 98, pp 99 - 104.

[42] C.H. McIlwain, The High Court of Parliament and Its Supremacy: An Historical Essay on the Boundaries between Legislation and Adjudication in England (New Haven, Yale University Press, 1910).

[43] A.F. Pollard, The Evolution of Parliament, (Longmans and Green, 1926, 2nd ed).

[44] T Spencer, “An Australian rule of law” (2014) 21 AJ Admin L 98, pp 100 - 103.

[45] See Thomas v Sorrell (1674) Vaughan 330; Godden v Hales (1686) 11 St Tr 1165.

[46] T Spencer, “An Australian rule of law” (2014) 21 AJ Admin L 98 at pp 100-101.

[47] The Evolution of Parliament, p 234 (Longmans, Green and Co, 1920).

[48] Cadia Holdings Pty Ltd v State of New South Wales [2010] HCA 27 at [63] per Gummow, Hayne, Heydon and Crennan JJ (Cadia).

[49] [2008] NSWSC 528 at [52].

[50] T Spencer, “An Australian rule of law” (2014) 21 AJ Admin L 98 at pp 101 -104.

[51] T Spencer, “An Australian rule of law” (2014) 21 AJ Admin L 98 at pp 102 -103.

[52] See e.g. H.W.R. Wade and C. F. Forsyth, Administrative Law, (10th ed, Oxford University Press, 2009), pp 33-34.

[53] (1844) 11 Cl & Fin 155 at 421. See T Spencer, “An Australian rule of law” (2014) A J Admin L 98 at 100-103.

[54] Case of Prohibitions (1607) 12 Co Rep 63.

[55] Jackson v Attorney General (2005) UKHL 56; (2006) 1 AC 262. The legislation was the Fox Hunting Act 2004; cf T. Spencer, “An Australian rule of law” (2014) 21 AJ Admin L 98 at p 103.

[56] The Prince’s Case (1606) 8 Co Rep 1a, p 505. See Alison L. Young, “Hunting sovereignty: Jackson v Her Majesty’s Attorney-General” [2006] PL 187 at p 192; cf Jackson v Attorney-General [2005] UKSC 56 at [112]; [2006] 1 AC 262, per Lord Hope.

[57] See e.g. the Crown and Parliament Recognition Act 1689.

[58] Constitution of Queensland 2001 (Qld).

[59] The Australian Constitution refers to Commonwealth judicial power vesting in a Federal Supreme Court, “to be called the High Court of Australia” and other federal courts, at s 71.

[60] Kielley v Carson [1842] IV Moore, 63 (PC).

[61] Kielley v Carson [1842] IV Moore, 63 at 92.

[62] Kielley v Carson [1842] IV Moore, 63 at 89.

[63] See Gabrielle Appleby, Alexander Reilly, and Laura Grenfell, Australian Public Law (2nd edition, Oxford, 2014), pp 43-48, as to the development of key Australian colonial institutions such as responsible government and judicial independence.

[64] Gabrielle Appleby, Alexander Reilly, and Laura Grenfell, Australian Public Law (2nd edition, Oxford, 2014), p 45.

[65] Letters Patent proclaimed the third Charter of Justice in New South Wales in Sydney on 17 May 1824.

[66] Church of Scientology v Woodward (1982) 154 CLR 25 at 70.

[67] Bodruddaza v Minister for Immigration & Multicultural Affairs (2007) 228 CLR 651 at [46]; cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [104].

[68] Bahr v Nicolay (No 2) (1988) 164 CLR 604 at 613.

[69] Jackson v Attorney-General [2005] UKHL 56; (2006) 1 AC 262.

[70] C MacDonald, L McCrimmon, A Wallace, M Weir, S Sheldon, Real Property Law in Queensland (Lawbook, Pyrmont NSW, 2nd ed, 2005) pp 312-375.

[71] (1877) 2 App Cas 163.

[72] (1969) 121 CLR 177.

[73] Also see P Butt, Land Law, Lawbook, Pyrmont NSW, 5th ed, 2006), p 717. He emphasizes the lack, in New South Wales, of a substantial landed class for whom much land law had evolved in England, and the sparse population in a vast territory.

[74] Cadia at [84], Gummow, Hayne, Heydon, Crennan JJ. They were citing Professor Jenks, The History of the Australasian Colonies (1895), p 210.

[75] Cadia at [84], Gummow, Hayne, Heydon, Crennan JJ.

[76] CH O’Hare, “A History of Mining Law in Australia” (1971) 45 ALJ 281 at p 291.

[77] (1877) 2 App Cas 163. at 167, 164.

[78] (1877) 2 App Cas 163 at 166.

[79] (1877) 2 App Cas 163 at 164.

[80] (1877) 2 App Cas 163 at 167.

[81] (1877) 2 App Cas 163 at 166.

[82] (1877) 2 App Cas 163 at 166.

[83] Cadia at [72].

[84] Cadia at [75], citing Commentaries on the Laws of England (1765) bk 1, c 7, p 232; and Pape v Commissioner of Taxation (2009) 238 CLR 1 at 83 [214], Federal Commissioner of Taxation v Official Liquidator of EO Farley Ltd (1940) 63 CLR 278 at 320-321, and Attorney-General (NSW) v Butterworth & Co (Aust) Ltd (1938) 38 SR (NSW) 195 at 246-247.

[85] W Blackstone, Commentaries on the Laws of England (1765) bk 1, p 269, vol 1, Philadelphia 1872 (electronically - Gale, The Making of the Modern Law, 2015).

[86] (1969) 121 CLR 177.

[87] Cadia at [68]-[71].

[88] Cadia at [70], cf Wade v NSW Rutile Mining Co Pty Ltd (1969) 121 CLR 177 at 186.


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