CATCHWORDS CONSTITUTIONAL LAW - Northern Territory - self-government - acquisition of land by Commonwealth for National Park purposes - pre-existing mineral interests held from Commonwealth - limit of authority of Territory legislature under self-government - position between Commonwealth and Territory inter se - limit of operation of s 52(i) of the Constitution - extent of Commonwealth legislative power under s 122 of the Constitution. MINING LEASES AND LICENCES - Northern Territory - mining leases - effect of transition to self-government - subsequent acquisition of land comprising leases by Commonwealth - terms and conditions on which held - power of Territory administration to renew - right of renewal - whether Territory administration agent of Commonwealth in purported renewal of leases - whether Commonwealth precluded from denying purported renewals - election and waiver - estoppel through representational conduct - estoppel through common assumption - whether the enactment of the Mining Act 1980 (NT) altered lessee's interest - whether transfer of leases valid - whether absence of consent to renewal significant. AGENCY - Northern Territory administration - purported renewal of mineral interests - whether acting as agent of Commonwealth - evidence as to administration of relevant areas - evidence as to doubt about validity of renewals. ESTOPPEL - election or waiver - uncertainty as to validity of renewals of mineral interests - Commonwealth issued authorities under Lands Acquisition Act 1955 (Cth) - no election or waiver by Commonwealth - estoppel through representational conduct - Ministerial statements - silence - no request for clarification - estoppel arising from common assumption - evidence as to common assumption of general validity of mineral interests. Lands Acquisition Act 1955 (Cth) - s (5)(1)). Northern Territory (Self-Government) Act 1978 - s 6, s 49, s 50, sub-s 50(1), sub-s 50(2), s 51, s 57, sub‑s 57(1), sub‑s 57(3) s 69, sub‑s 69(2), sub-s 69(3), sub‑s 69(4), s 70, sub‑s 70(2), sub‑s 70(3), sub-s 70(4), sub‑s 70(6), sub‑s 70(11). Amendment Act Mining Ordinance 1939 (NT) - s 7, s 39, s 42, s 45, s 49 Transfer of Powers (Self-Government) Ordinance 1978 The Constitution - sub‑s 51(xxxi), sub-s 52(i), s 92, s 109, s 111, s 122. Minister for Arts, Heritage and Environment v Peko-Wallsend Limited (1987) 15 FCR 274 Commonwealth v Maddalozzo (1980) 54 ALJR 209 Capital Duplicators Pty Limited v Australian Capital Territory (1992) 177 CLR 248 Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274 Berwick Limited v Gray (1976) 133 CLR 603 R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 Svikart v Stewart (1995) 69 ALJR 35 Worthing v Rowell and Muston Pty Limited (1970) 123 CLR 89 Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Limited (1970) 124 CLR 262 R v Phillips (1970) 125 CLR 93 Spratt v Hermes (1965) 114 CLR 226 Federal Capital Commission v Laristan Building and Investment Co Pty Limited (1929) 42 CLR 582 Webster v McIntosh (1980) 49 FLR 317 R v Kearney; Ex parte Japanangka (1984) 158 CLR 395 Attorney-General for the Northern Territory v Hand (1989) 25 FCR 345 University of Wollongong v Metwally (1984) 158 CLR 447 Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252 ICI Alkali (Aust) Pty Ltd v Federal Commissioner of Taxation (1979) 53 ALJR 220 Gerraty v McGavin (1914) 18 CLR 152 Mercantile Credits Limited v Shell Co of Australia Limited (1975-76) 136 CLR 326 Commonwealth v Hazeldell Limited (1921) 29 CLR 448 Colonial Sugar Refining Co Limited v Melbourne Harbour Trust Commissioners (1927) 38 CLR 54 Teori Tau v The Commonwealth of Australia (1969) 119 CLR 564 Grundt v Great Boulder Pty Gold Mines Limited (1937) 59 CLR 641 The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Kean v Commonwealth (1963) 5 FLR 432 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 O'Keefe v Williams (1910) 11 CLR 171 Goldsworthy Mining Ltd v Commissioner of Taxation (1973) 128 CLR 199 Wade v New South Wales Rutile Mining Co. Pty Ltd (1970) 121 CLR 177 Commissioner of Stamp Duties (NSW) v Henry (1964) 114 CLR 322 Williams v Robinson (1891) 12 LR (NSW) Eq 34 Adamson v Hayes (1973) 130 CLR 276 Svikart v Stewart (1994) 125 ALR 554 Re Australian Education Union; Ex parte Victoria (1994) 68 ALJR 618 Grain Elevators Board (Vict) v Dunmunkle Corporation (1946) 73 CLR 70 Rimmer v Nissen; Ex Parte Nissen (1993) 113 ALR 502 Hunter Resources Ltd v Melville (1988) 164 CLR 234 Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 Interlego AG v Croner Trading Pty ltd (1992) 38 FCR 348 State of Western Australia v Commonwealth (1995) 128 ALR 1 American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 Downey v Prior (1960) 103 CLR 353 Gardner v Blaxill (1960) 2 All ER 457 Central Mount Lyell Mining Co v Westwood (1902) 2 TLR 111 Associated Minerals Pty Ltd v NSW Rutite Mining Company Pty Ltd (1961) 35 ALJR 296 Trustee Executors & Agency Co Ltd v Peters (1960) 102 CLR 537 Buckland v Papillon (1866) 2 LR 2 Ch App 67 Rider v Ford (1923) 1 Ch 541 Ballas v Theopilos (1958) 98 CLR 193 S & E Promotions Pty Ltd v Tobin Brothers (1994) 122 ALR 637 Cudgen Rutile (No 2) v Chalk (1975) AC 520 Minister for Mines v Harney (1901) AC 347 THE COMMONWEALTH OF AUSTRALIA & ORS v NEWCREST MINING (WA) LIMITED & ORS NO. WG 145 of 1993 BLACK C.J., BEAUMONT AND FOSTER JJ. SYDNEY 5 JUNE 1995 IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. WG 145 of 1993 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE COMMONWEALTH OF AUSTRALIA First Appellant THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE Second Appellant AND: NEWCREST MINING (W.A.) LIMITED First Respondent BHP MINERALS LTD Second Respondent BETWEEN: NEWCREST MINING (W.A.) LIMITED First Cross Appellant BHP MINERALS LTD Second Cross Appellant AND: THE COMMONWEALTH OF AUSTRALIA First Cross Respondent THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE Second Cross Respondent CORAM: BLACK CJ, BEAUMONT & FOSTER JJ DATE: 5 JUNE 1995 PLACE: SYDNEY MINUTES OF ORDER THE COURT ORDERS THAT: (1) The appeal be allowed. (2) The orders made by French J on 3 November 1993, 10 December 1993 and 17 December 1993 be set aside. (3) In lieu of the declaratory orders made by French J it be declared that subject to the operation of the proclamations made under the National Parks and Wildlife Conservation Act 1975 in June 1987, November 1989 and June 1991, the first respondent, Newcrest Mining (WA) Limited is the lawful lessee of mining leases MLN 78-89 referred to in the amended statement of claim. (4) The cross-appeal be dismissed. (5) The costs of the proceedings at first instance and of the appeal and cross-appeal be reserved until after the High Court has determined the part of the proceedings that was not remitted to this court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. WG 145 of 1993 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE COMMONWEALTH OF AUSTRALIA First Appellant THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE Second Appellant AND: NEWCREST MINING (W.A.) LIMITED First Respondent BHP MINERALS LTD Second Respondent BETWEEN: NEWCREST MINING (W.A.) LIMITED First Cross Appellant BHP MINERALS LTD Second Cross Appellant AND: THE COMMONWEALTH OF AUSTRALIA First Cross Respondent THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE Second Cross Respondent CORAM: BLACK CJ, BEAUMONT & FOSTER JJ DATE: 5 JUNE 1995 PLACE: SYDNEY REASONS FOR JUDGMENT BLACK CJ and FOSTER J: The facts with which this appeal is concerned are fully set out in the judgment of Beaumont J. We shall not set them out again. The learned primary judge approached the numerous issues raised by the pleadings by posing for himself and answering a series of questions which emerged from the proceedings. Having regard to the manner in which the appeal has been argued and, also, because new arguments have been introduced based upon a recent decision of the High Court of Australia, we do not propose to deal with this appeal by examining the answers propounded by His Honour in the sequence in which he dealt with them. DID THE NORTHERN TERRITORY ADMINISTRATION HAVE POWER TO RENEW AND TRANSFER THE RESPONDENTS' MINERAL LEASES? As it appears to us, there is a major threshold question to be answered. It is, did the Northern Territory administration, after the commencement of the Northern Territory (Self-Government) Act 1978 (the "Self-Government Act"), retain the power to renew and transfer the respondents' mineral leases? If it did not, all the leases (including MLN19 but excluding MLN78 - MLN89, which did not expire until 31/12/94) would have expired and ceased to exist well before the areas over which they were granted became incorporated in stage 3 of the Kakadu National Park. In respect of MLN78 - MLN89, it is clear that, as at the proclamation of stage 3 on 21 June 1991, they were still in existence. The proclamation had the effect of preventing any mining on those tenements and, therefore, rendered them valueless at that time. If the Northern Territory administration retained the right to renew them after the commencement of the Self-Government Act then it would be strongly arguable that the proclamation had deprived the respondents of a further term of 20 or 25 years commencing from 31 December 1994. The question of their renewability, therefore, would have a considerable bearing upon any amount of any compensation to which the respondents might be entitled. Before the learned primary judge and before this Court, it was contended that the effect of the Self-Government Act was to continue the rights of the respondents to seek a renewal of the leases from the Northern Territory Government and also to maintain the power of that Government to grant such a renewal. Two arguments were put. The first, a narrow argument, depended upon the construction of ss 69 and 70 of the Self-Government Act. The second, a broad argument, depended upon the extent of the powers given by the Commonwealth Parliament to the Northern Territory Government under ss 6 and 57 of the Self-Government Act. We shall deal with the narrow argument first. The Effect of Sections 69 and 70 of the Self-Government Act The relevant provisions of s 69 are referred to in the reasons for judgment of Beaumont J. Section 69(2) vested in the Northern Territory ("the Territory") on the commencing date, 1 July 1978, "all interests of the Commonwealth in land in the Territory". The land in respect of which the mineral leases had been granted was, prior to the conferral of self-government on the Territory, owned by the Commonwealth. This was a result of its having been previously acquired from the State of South Australia pursuant to s 111 of the Constitution. Sub-section 69(4) similarly vested in the Territory, on the same date, "all interests of the Commonwealth in respect of minerals in the Territory". Sub-section 69(3) provides that "all interests in land in the Territory held from the Commonwealth immediately before the commencing date are, by force of this section, held from the Territory on and after that date on the same terms and conditions as those on which they were held from the Commonwealth". The argument assumes, in our view correctly, that the effect of these sections was to transfer to the Territory the Commonwealth land in respect of which the mineral leases had previously been granted, and to provide that the leases should, thereafter, be held from the Territory on the previous terms and conditions. It is the effect of s 70 upon this situation which was the subject of debate. Sub-section 70(1) operates, relevantly, on "any interest in land vested ... in the Territory by subsection 69(2) (including an interest less than, or subsidiary to, such an interest)". The interest recommended for acquisition under this sub-section was the "fee simple interest" in the relevant land. This interest was vested in the Commonwealth on 1 July 1978 by the operation of sub-ss (2), (3) and (4) of s 70. Sub-section 70(6), which is set out in full in the judgment of Beaumont J, provides that "all interests that were held from the Territory immediately before the acquisition" and which were "interests derived from" the interest acquired by the Commonwealth are to be "held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory". The learned primary judge held that the result of these sections was that the Commonwealth had reacquired from the Territory the fee simple of the relevant land including the ownership of the minerals therein which had, in the circumstances, momentarily been transferred to the Territory. The effect of sub-s 70(6) was that the respondents' mineral leases were again held from the Commonwealth as had been the position prior to the operation upon them of sub-s 69(3). This finding was in accordance with the reasoning of Sheppard and Wilcox JJ in Minister for Arts, Heritage and Environment v Peko-Wallsend Limited (1987) 15 FCR 274 at 282, 296 and 298. The respondents, however, argued that s 70 was not effective to vest the minerals, the subject of the respondents' leases, in the Commonwealth with the result that, despite the fact that the minerals were in the Commonwealth's land, they remained the property of the Territory. The respondents' mining leases, therefore, continued to be held from the Territory and subject to its administration. We do not accept that this is the effect of these sections. It is, perhaps, unfortunate that the draftsman did not continue in s 70 the division between interests in land and interests in respect of minerals which appears in sub‑ss 69(2) and (4). However, we are satisfied that the "fee simple interest" in the relevant land which was the subject of the relevant recommendation and notice under sub-ss 70(1), (2), (3) and (4), included the mineral interests in the land. (Commonwealth v Maddalozzo (1980) 54 ALJR 209). It is to be noted that sub-s 70(1) provides for the recommendation of "an interest less than, or subsidiary to," an interest vested in the Territory by sub-s 69(2). In our view, mineral interests can properly be regarded as interests less than, or subsidiary to, the fee simple. The respondents' argument also raised the question of the effect of sub-s 70(11), which provides that "[w]here subsection (4) has effect in relation to an interest in land, that subsection has the like effect in relation to any interest vested in the Territory by subsection 69(4) in respect of minerals in or on that land". Although it is true that sub‑s 70(11) was added to s 70 by amendment in 1982 with retrospective effect, we are satisfied that this does not establish that the notice given in 1978 was ineffective to vest the relevant mineral interests in the Commonwealth. The sub-section, in our opinion, was declaratory only and did not effect any change in the law. It was added to the section for the avoidance of doubt. So much appears from the Second Reading Speech relating to the Amendment Act. It was also submitted, in aid of the general proposition that s 70 did not apply to the acquisition by the Commonwealth of the mineral interests in land transferred to the Territory by s 69, that sub-s 70(6) could not, as a matter of construction, apply to the mineral leases. They could not be interests derived from "the fee simple interest" in the land acquired by the Commonwealth under sub-s 70(4). Put succinctly, the argument was that the leases were creatures of statute, brought into being by virtue of the operation of the Mining Ordinance 1939 (NT) and not finding their origin as a part of the fee simple. In these circumstances they could not properly be described as "interests derived from" the interest acquired by the Commonwealth under s 70. We are not persuaded by this argument. In our view, a mining lease granted under the Mining Ordinance 1939 can quite properly be regarded as an interest having sufficient of the normal characteristics of a leasehold interest, to enable it to qualify for the description of being "derived" from the larger interest of the land holding to which it is appurtenant. Section 39 of the Mining Ordinance 1939, in the case of gold mining leases, and s 45 of the Mining Ordinance 1939, in the case of mineral leases, empowered the Administrator to grant to any person "a lease of any Crown land" for the purposes set out in those sections. This sufficiently indicates, in our opinion, that any lease so granted is "derived" from the Crown's ownership of the land. We are satisfied also that the lease when granted can properly be described as "an interest in land". In Maddalozzo the High Court considered whether the Commonwealth's acquisition of approximately 32 square miles of land near Darwin under the Lands Acquisition Act 1955 (Cth) for "the planned development and control of the City of Darwin and its adjacent areas", should be held to involve the compulsory acquisition of Mr Maddalozzo's mining leases in the area. In that Act an "interest in land" was defined as meaning:- "(a)a legal or equitable estate or interest in the land; or (b) a right, power or privilege over, or in connection with, the land..." (s (5)(1)). Although neither the Self-Government Act nor the Mining Ordinance 1939 contains any definition of an "interest in land", the judgments in Maddalozzo are of assistance in the characterisation of a mining lease under the Mining Ordinance. Thus, Aickin J said in a passage (at 292) which does not appear to be dissented from in any of the other judgments: "It is I think clear that however one may classify a mining lease under the Mining Ordinance such a lease is within either par. (a) or par. (b) of the definition of interest. Indeed it seems to be clear and not really in dispute that it falls within par. (b). There is thus no doubt that the respondent's rights under the mining leases were capable of being acquired by the Commonwealth under the Act." These interests were, it was held, acquired under a Notice of Acquisition of the fee simple in the land in question. This quite sufficiently indicates, in our view, that the gold mining and mineral leases involved in the present case can each properly be characterised as being "interests derived from" the fee simple interest acquired by the Commonwealth under s 70 of the Self-Government Act. We therefore reject the submission that the Commonwealth's acquisition of the relevant lands under s 70 did not operate to vest the minerals in those lands in the Commonwealth. We also reject the associated submission that sub-s 70(6) could not result in the mineral leases being held from the Commonwealth after that acquisition. The Effect of Sections 6 and 57 of the Self-Government Act We turn, then, to the broader question, whether, after the acquisition by the Commonwealth of the relevant lands on 1 July 1978, the Northern Territory Administration, nevertheless retained the power to renew the respondents' leases and otherwise deal with them under the provisions of the Mining Ordinance 1939. On behalf of the respondents it was submitted that the power was retained by virtue of s 6 and sub-ss 57(1) and (3) of the Self-Government Act. Section 6 provides as follows:- "Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General, as provided by this Act, to make laws for the peace, order and good government of the Territory." Sub-sections 57(1) and (3) provide as follows:- "(1) Subject to this Act, on and after the commencing date, all existing laws of the Territory have the same operation as they would have had if this Act had not been enacted, subject to alteration or repeal by or under enactment. ... (3) In this section, `existing law of the Territory' means: (a) any law in force in the Territory immediately before the commencing date, other than an Act or an instrument (not being an Ordinance or an instrument made under an Ordinance) made under an Act; or (b) an Ordinance, or an instrument under an Ordinance, in force immediately before the commencing date or made and assented to before that date but not in force before that date." These two sections, read together, clearly provide plenary power to the Northern Territory legislature in respect of the alteration or repeal of "existing laws of the Territory", as so defined, and all future laws for "the peace, order and good government of the Territory". It is the respondents' contention that the powers given by these sections are sufficient to enable the Northern Territory administration to continue to act in respect of the respondents' mining leases, under and pursuant to the provisions of the Mining Ordinance 1939 after the acquisition by the Commonwealth, pursuant to s 70, of the lands and minerals to which the leases applied. The appellants' countervailing contention was that after the acquisition had taken place the Territory no longer had any power to deal with the leases. More particularly, it had no power to renew or transfer them. Indeed, it was the Commonwealth's submission that the respondents' right to seek renewal or transfer did not, in law, survive the acquisition of the lands by the Commonwealth. The lessees' subsequent rights were to be found in sub‑s 70(6). That sub-section, it was submitted, did not give a right of renewal or transfer. We shall return to this matter later. The learned primary judge held that, although s 122 of the Constitution empowered the Commonwealth Parliament to pass the Self-Government Act establishing the Northern Territory as a body politic with plenary legislative powers, there should, nevertheless, be some qualification implied in the section akin to that to be found in s 109 of the Constitution, in its according of paramountcy to Commonwealth legislation over inconsistent State legislation. His Honour found support for this approach in the decision and reasoning in Capital Duplicators Pty Limited v Australian Capital Territory (1992) 177 CLR 248, where the High Court held by majority that s 90 of the Constitution, by giving the Commonwealth exclusive power to levy duties of customs and excise, had a qualifying effect upon the Parliament's powers under s 122. It was not possible under that section to establish a Territory legislature with power to levy such duties. His Honour considered it unlikely that ss 6 and 57 of the Self-Government Act were intended by the Commonwealth Parliament to confer legislative or executive power upon the Territory to deal with mining leases which, although originally established under the provisions of the Mining Ordinance 1939, had by force of sub-s 70(6) become interests held from the Commonwealth in respect of Commonwealth land situated in the Territory. In coming to this view it appears that his Honour was not inconsiderably influenced by certain obiter dicta in Minister for Arts, Heritage and Environment v Peko-Wallsend (1987) 15 FCR 274. In that case Wilcox J expressed the following views (at 297-8):- "...it is a fundamental principle that the Crown in right of a State or of the Northern Territory cannot bind the Crown in right of the Commonwealth. As Fullagar J said in Commonwealth v Bogle (1953) 89 CLR 229 at 259-260: `The Commonwealth - or the Crown in right of the Commonwealth, or whatever you choose to call it - is, to all intents and purposes, a juristic person, but it is not a juristic person which is subjected either by any State Constitution or by the Commonwealth Constitution to the legislative power of any State Parliament. If, for instance, the Commonwealth Parliament had never enacted s 56 of the Judiciary Act 1903, it is surely unthinkable that the Victorian Parliament could have made a law rendering the Commonwealth liable for torts committed in Victoria. The Commonwealth may, of course, become affected by State laws. If, for example, it makes a contract in Victoria, the terms and effect of that contract may have to be sought in the Goods Act 1928 (Vic). ... But I should think it impossible to hold that the Parliament of Victoria could lawfully prescribe the uses which might be made by the Commonwealth of its own property, the terms upon which that property might be let to tenants, or the terms upon which the Commonwealth might provide accommodation for immigrants introduced into Australia.' This principle is equally applicable to the Northern Territory. In R v Kearney; Ex parte Japanangka (1984) 158 CLR 395 at 418 Brennan J said: `It is beyond the capacity of a law of the Northern Territory or of the exercise of any power which such a law confers to affect the operation of a law of the Commonwealth or to destroy or to detract from a right thereby conferred unless a law of the Commonwealth so provides, expressly or by implication.' In the present case the Commonwealth Parliament decreed, by s 70(6) of the Northern Territory (Self-Government) Act 1978, that, upon the acquisition of an interest by the Commonwealth under the section, `all interests that were held from the Territory immediately before the acquisition' were to be `held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory'. The subject mining interests of Peko-EZ, although originally vested in it by the Commonwealth pursuant to the Mining Act 1939, were held from the Territory - as the new and momentary owner of the fee simple estate - immediately before the acquisition. After the acquisition those interests were held from the Commonwealth on the same terms and conditions as those on which they had previously been held. Because the interests were created under the Act, their terms and effect had to be sought in the Act. But this does not mean that the Territory legislature was free to substitute new terms and a new effect. It was, of course, open to the Commonwealth to vary the terms and conditions after the date of acquisition; subject to the necessity to pay just compensation if the variation took the form of an acquisition of an interest held by another: see Constitution s 51(xxxi). The argument for Peko-EZ involves the proposition that the Northern Territory legislature has power to enlarge an interest held at acquisition date which is adverse to the Commonwealth. Upon that argument the Northern Territory could, by legislation, enlarge interests adverse to the Commonwealth to a point where the Commonwealth interest is, practically speaking, extinguished: thus defeating the purpose for which the Commonwealth acquired the interest. In my opinion it was not open to the Territory legislature to interfere with the operation of s 70(6) by varying the terms and conditions upon which Peko-EZ's interests were held. Section 6 of the Northern Territory (Self-Government) Act 1978 does not assist the respondents' argument. The grant of power contained in that section is expressly made subject to other provisions of the Act. Section 70(6) operates as a relevant qualification upon the application of that general power to lands acquired under that section." Similarly (at 282), Sheppard J made the following obiter comment: "I respectfully disagree with the learned primary judge in his view that s 70(6) of the Northern Territory (Self-Government) Act 1978 (Cth), did not operate to remove from the Northern Territory power to deal with or affect the mining interests which the respondents had. In my opinion, the section requires one to conclude that it was the Commonwealth and the Commonwealth alone which had that power." The present respondents contested the existence of such "a fundamental principle". They submitted that Bogle provided no authority for limiting the power of a Territory legislature in respect of Commonwealth property. It was not correct to apply the principle enunciated by Fullagar J to the relationship between the Commonwealth and a Territory established by the Commonwealth Parliament under s 122 of the Constitution. Under that section the Commonwealth had clear power "to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus". (Berwick Limited v Gray (1976) 133 CLR 603 at 607 per Mason J; Barwick CJ, McTiernan and Murphy JJ agreeing. See also per Wilson J in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 275). It was emphasised in argument on behalf of the respondents, that the legislation setting up the governmental institutions of the Northern Territory was in fact Commonwealth legislation, and that it lay within the power of the Commonwealth under s 122 to grant power to that legislature to pass laws which might conflict with a law of the Commonwealth. Indeed, they relied upon the passage from the judgment of Brennan J in Japanangka, cited above, to found the submission that the Commonwealth Parliament in enacting ss 6 and 57 of the Self-Government Act had empowered the Northern Territory legislature and administration, in effect, "to destroy or to detract from a right" conferred by a law of the Commonwealth. Consistently with this argument, the submission was made that sub-s 57(1) had the effect of continuing, after self-government, the Mining Ordinance 1939 with the result that, in the absence of any subsequent countervailing Commonwealth legislation, the provisions of the Ordinance continued to apply with full force and effect to the respondents' mining leases now held from the Commonwealth by operation of sub-s 70(6). This reasoning was fortified, it was submitted, by the fact that the Commonwealth had not passed any mining legislation dealing with mining interests held from it in respect of land owned by it in the Territory. Specifically, ss 42 and 49 of the Ordinance, providing for rights of renewal of gold mining and mineral mining leases respectively, continued to be applicable to the respondents' leases, with the result that the purported renewals by the Territory administration on the dates set out in the judgment of Beaumont J were valid and effective. The leases were therefore extant and operative at the time when Stage 3 of the Park was proclaimed. Since the completion of the argument in this appeal, the High Court of Australia has given its decision in Svikart v Stewart (1995) 69 ALJR 35. Both the appellants and the respondents have supplied detailed written submissions for the consideration of this Court, based upon the decision and reasoning in that case. It is necessary, therefore, to undertake an examination of it. Stewart had been charged under sub-s 19(2) of the Traffic Act 1987 (NT) with the offence of driving a motor vehicle on a public street with a blood alcohol concentration of more than 0.08%. He was also charged with other breaches of the Traffic Act and Regulations. The offences were all alleged to have taken place on a street within the confines of the RAAF Base at Darwin. The Base was situated on land which the Commonwealth had acquired for defence purposes, after self-government on 1 July 1978, pursuant to s 70 of the Self-Government Act. Prior to its acquisition it had been vested in the Northern Territory by sub-s 69(2) of that Act in the same way as the land previously owned by the Commonwealth in the present proceedings had been vested momentarily in the Territory by operation of the same section. The questions for determination by the High Court related to the operation of sub‑s 52(i) of the Constitution. This sub-section, which had not previously been the subject of submission in this case, grants exclusive power to the Parliament of the Commonwealth to legislate with respect to Commonwealth places. It was submitted that the RAAF Base was a Commonwealth place and that the only laws capable of applying in it were laws enacted by the Commonwealth Parliament. Reliance was, of course, placed upon earlier decisions of the High Court in relation to the meaning and operation of sub-s 52(i). In Worthing v Rowell and Muston Pty Limited (1970) 123 CLR 89 the High Court decided that the RAAF Base at Richmond in New South Wales was a place "acquired by the Commonwealth for public purposes" within the meaning of the section. The section gave to the Commonwealth Parliament exclusive power to legislate in respect of it, with the result that certain New South Wales building regulations, relied upon to found a cause of action in the plaintiff, had no application within the area of the Base. In Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Limited (1970) 124 CLR 262 a similar decision was reached in respect of an area of land in New South Wales acquired by the Commonwealth for use as a rifle range. R v Phillips (1970) 125 CLR 93 was a case concerning a RAAF Base in Western Australia. It was held that upon its acquisition for Commonwealth purposes the laws of Western Australia ceased to have any application within its boundaries. These cases all concerned "enclaves" of the Commonwealth within the boundaries of particular States. Their effect was that the Commonwealth not only had the ordinary rights of proprietorship over the land in question; it also had full political dominion or sovereignty. The consequence of the decisions was that, in the absence of applicable Commonwealth law, the enclaves were in a state of anarchy. This quite unacceptable situation was remedied by the passing of the Commonwealth Places (Application of Laws) Act 1970 (Cth), which applied to the relevant "place" the laws of the surrounding State. This Act, however, has no application to areas owned by the Commonwealth within a Territory, even though those areas had been acquired for Commonwealth purposes. Accordingly, if the RAAF Base at Darwin was a Commonwealth place within the meaning of sub-s 52(i), it was in the position of the Commonwealth enclaves considered in the earlier cases, prior to the passing of the remedial legislation. The Northern Territory traffic laws would have no application within it. The Court, by majority, held that sub-s 52(i) of the Constitution had no application to Commonwealth land within the confines of a Territory. This decision was arrived at by adopting a construction of sub-s 52(i), based largely on historical grounds, that restricted its operation to lands acquired by the Commonwealth within the boundaries of a State. Aspects of the reasoning of the majority were heavily relied upon by the respondents in the present appeal. The RAAF Base area had been acquired on 1 July 1978 pursuant to s 70 of the Self-Government Act. The relevant traffic laws of the Northern Territory had been passed considerably later. They owed their origin to the plenary legislative power given to the Northern Territory Legislative Assembly by s 6 of that Act. It was clear that legislation passed in this way had within its reach the Commonwealth owned land. The majority (Mason CJ, Deane, Dawson and McHugh JJ) said (at pp 39-40):- "As Capital Duplicators Pty Ltd v Australian Capital Territory shows, there may be some qualifications to the power to make laws under s 122 which are to be found elsewhere in the Constitution but which as yet remain unidentified but, putting to one side the special considerations applicable to the `seat of government', there is nothing elsewhere in the Constitution which would inhibit s 122 so as to prevent it conferring power upon a Territory legislature to legislate with respect to Commonwealth places in a Territory. And if s 52(i), which is the source of the exclusive power to make laws with respect to Commonwealth places, does not confine the Parliament's power under s 122 because the places referred to are places in a State, then there is no reason why, in a Territory, a separate legislature should not have power conferred upon it by the Parliament to legislate with respect to places acquired by the Commonwealth within the Territory." This statement was consistent with earlier views expressed in the High Court as to the conferral of power on a Territory legislature under s 122 of the Constitution being "as large and universal a power of legislation as can be granted". (Spratt v Hermes (1965) 114 CLR 226 at 242). No implications which might possibly arise from considerations appropriate to "the seat of Government of the Commonwealth" could have any effect upon the plenary power of the Northern Territory legislature. There was certainly no occasion to introduce a limitation analogous to that imposed by s 109 of the Constitution. The Northern Territory legislature, accordingly, could pass laws, including mining legislation, which would be fully operative in the Commonwealth acquired lands. By parity of reasoning the "existing laws" of the Territory, including the Mining Ordinance 1939, applied with full force and vigour in respect of those areas, with the result that the Territory Administration had full power to renew and transfer the leases even though, by force of sub‑s 70(6) they were now held from the Commonwealth on Commonwealth owned land. In our opinion, two things must be said, at the outset, about the effect of this decision. In the first place the passages cited above from Peko-Wallsend, insofar as they would appear to accord total immunity to the Commonwealth in respect of its enclaves from the operation of the laws and legally authorised administrative decisions of a surrounding Territory, cannot stand with it. In the second place, however, the decision does not appear to affect the well-established principles relating to repugnancy between the laws of a superior and subordinate legislature. The law of a Territory, no less than the law of a State, will be invalid to the extent to which it is inconsistent with a law of the Commonwealth. (Federal Capital Commission v Laristan Building and Investment Co Pty Limited (1929) 42 CLR 582 at 588; Webster v McIntosh (1980) 49 FLR 317 at 320-321; R v Kearney; Ex parte Japanangka (1984) 158 CLR 395 at 418-419, 422; Attorney-General for the Northern Territory v Hand (1989) 25 FCR 345 at 366-367, 386 and 402-403). In University of Wollongong v Metwally (1984) 158 CLR 447 Mason J (as he then was) said (at 463-464):- "Inconsistency or repugnancy is a long-standing concept in the field of statutory law. Where the provisions of two statutes are in conflict, so much so that they cannot be reconciled one with the other, there is a consequential need to resolve the problem created by the conflict. In the case of conflicting statutes enacted by one legislature the problem is resolved by regarding the later statute as impliedly repealing the earlier statute to the extent of the inconsistency. In the case of conflicting statutes, one enacted by the Imperial Parliament, the other by a colonial legislature, the problem was resolved in favour of the primacy of the Imperial statute, even if it be the first in time: see e.g. Co-operative Committee on Japanese Canadians v. Attorney-General (Canada) [1947] A.C. 87, at p. 103, a decision on s. 2 of the Colonial Laws Validity Act 1865 (Imp.). And in a federal context, where the conflict is between a statute of the federal legislature and a statute of a State or provincial legislature, the conflict is resolved in favour of the primacy of the federal statute, even in the absence of a provision such as s. 109. This is the position in Canada (Laskin's Canadian Constitutional Law, 4th ed. (1975), pp. 23 et seq.) and in the United States: Willoughby on the Constitution of the United States (1929), vol. 1, ch. IV; Hines v. Davidowtiz (1941) 312 U.S. 52, at p. 67 [85 Law. Ed. 581, at p. 587]. In Victoria v. The Commonwealth (1937) 58 C.L.R. 618, at p. 634, Evatt J. observed: `[A]s is shown by decisions on the Canadian Constitution, provisions like s. 109 do no more than declare a rule of last resort which would be applied irrespective of express provision.' This was the view which had been taken by Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 939. And it has recently been endorsed by Murphy J. in Australian Broadcasting Commission v. Industrial Court (S.A.) (1977) 138 C.L.R. 399, at p. 418." In Hand (at 366-367), Lockhart J referred in his judgment to the cases cited above as authority for the statement that:- "It is beyond the power of the Northern Territory of Australia to make laws repugnant to or inconsistent with laws of the Commonwealth or to exercise powers conferred by Northern Territory laws in a manner inconsistent with, or repugnant to laws of the Commonwealth. It is not a question of inconsistency between the two sets of laws which may otherwise be valid, rather it is a question going to the competency of the subordinate legislature to enact laws or to cause laws to operate in a manner inconsistent with or repugnant to laws of the paramount legislature. Nor can a provision of a law of the Northern Territory operate so as to prevent or curtail the enforcement or enjoyment of a right conferred by a law of the Commonwealth." In the present case, therefore, had the Commonwealth Parliament passed its own mining laws in respect of land acquired in the Northern Territory then, clearly, no question could arise as to the application of the Mining Ordinance 1939 to those lands unless, in some way, they were continued in effect by force of the Commonwealth legislation itself, either expressly or by its failure to cover the field. It is the respondents' contention, bolstered by the decision in Svikart, that the Commonwealth, pursuant to s 122 of the Constitution, has, by the passing of sub-ss 57(1) and (3) of the Self-Government Act, decreed that the Mining Ordinance should continue to operate with full force and effect in respect of the relevant lands until the Commonwealth puts in place countervailing legislation, either by way of establishing a new legislative regime for mining in those areas or by, as was the effect of the later legislation, totally forbidding it. Before the latter event occurred, it is submitted, the leases were validly renewed and transferred in accordance with the continuance of the Mining Ordinance. We confess to some concern as to whether such a conclusion might not be affected by considerations of a fundamental difference between laws which govern behaviour of individuals upon Commonwealth land within a Territory, and laws which affect title adverse to the Commonwealth. However, the concern need not be addressed, as more direct impediments to the continued operation of the Mining Ordinance arise from the wording of s 6 and sub-s 57(1) themselves. Each section is said to be "subject to this Act". In respect of s 57, this qualification, the appellants submit, removes the leases when held from the Commonwealth under sub‑s 70(6), from the operation of the Mining Ordinance as an "existing law of the Territory". The respondents contend that the phrase is intended to do no more than to bring into play sections in the Self-Government Act which are clearly designed to fetter the legislative power of the Legislative Assembly. Sections 49, 50 and "probably" 51 are such sections. Section 49 is the equivalent of s 92 in the Commonwealth Constitution, while sub-ss 50(1) and (2) clearly require that, in order to be valid, legislation of the Assembly relating to the acquisition of property must provide that the acquisition be "on just terms". In contradistinction, it was argued, ss 69 and 70 are no more than conveyancing sections relating to the acquisition by the Territory and the re-acquisition by the Commonwealth of the lands respectively defined in the sections. They do not operate as a fetter upon legislative power and do not fall within the purview of the phrase "subject to this Act". The learned primary judge accepted the appellants' submission, repeated before this Court, that the phrase did, as a matter of construction, prevent the application of the Mining Ordinance in respect of the relevant land after the operation of ss 69 and 70. His Honour said in this regard:- "In my opinion, s.70 authorises the acquisition, by and for the purposes of the Commonwealth, of interests in land on terms which will exclude at least some if not all aspects of regulation under Territory law. The possibility can be accepted that some aspects of Territorial land regulation will not necessarily be inconsistent with or excluded by the acquisition. Otherwise, and for the most part, the grant of legislative power under s.6 and the continuation of existing laws under s.57 are qualified accordingly. Both the grant and the continuance are said to be `(s)ubject to this Act'. The applicants submit that the qualification thus expressed does not pick up ss. 69 and 70 because they are provisions of the Act not relevant to the grant of legislative power. But that, in my respectful opinion, begs the question. If ss. 69 and 70 have the effect contended for by the respondents, they are relevant to the grant of legislative power because they limit the ability of the Northern Territory legislature to deal with the acquired interests. If the mining leases are, as a result of the notice of acquisition, held from the Commonwealth by virtue of s.70(6) of the Northern Territory (Self-Government) Act 1978 then, although they are held on the same terms and conditions as those on which they were held from the Territory, they can no longer in the absence of enabling legislation or some executive agreement be renewed by the Territory nor can their transfer effectively be approved by the Territory. A reservation to the Territory of a power to renew or approve the disposition of interests held from the Commonwealth would be inconsistent with the substance and purpose of s.70." Later in his judgment, the following passage appears:- "The applicants submit that s.70 does not prevent interests granted under Territory law before self-government being renewed or transferred under Territory laws. The fact that land is acquired by the Commonwealth from the Territory pursuant to s.70 for a public purpose did not, it was said, remove the land from within the jurisdiction of the Territory, over which the Territory had been granted absolute and uncontrolled authority by ss. 6 and 57. To the extent that that submission proposes that the grant of power and continuance of existing legislation under ss.6 and 57 were not qualified by the operation of ss.69 and 70, it is not accepted for the reasons stated earlier. In my opinion, the scheme of the Northern Territory (Self-Government) Act 1978 and the operation of s.70 in particular contemplates that the interests derived from interests vested in the Commonwealth by virtue of that section are no longer held from the Territory and the rights and obligations of the grantee of those interests repose in the Crown in right of the Commonwealth. They are to be exercised and discharged not by the Administrator on the advice of the Northern Territory Executive Council or by the Ministers of the Northern Territory acting under their executive authority, but by the Commonwealth through its responsible Ministers or the Governor-General on the advice of the Federal Executive Council." In this appeal the appellants supported this reasoning and decision of the primary judge. They contended, correctly in our view, that the phrase "subject to this Act" could not be given the narrow interpretation sought to be imposed by the respondents. We accept their submission that it means "if not inconsistent with or repugnant to any provision of (this) Act". (Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252 at 259). With this meaning in mind, we turn to a consideration of the scope of ss 69 and 70. Section 69, broadly speaking, operates to vest in the Northern Territory, as the newly created polity, all land within its boundaries which, at the time of self-government, was in the ownership of the Commonwealth. Section 70, again speaking broadly, enables the Commonwealth to reacquire, within one year, and without compensation to the Territory, any part of that land for an approved public purpose. So far as the interests of third parties in the land are concerned, those interests previously held from the Commonwealth before self-government, become held from the Territory thereafter. In the case of land reacquired by the Commonwealth under s 70 those very same interests are then to be held from the Commonwealth. In each case they are to be held "on the same terms and conditions" as those on which they were previously held. The meaning and content of this expression will be considered later. All these provisions are made pursuant to the Commonwealth's legislative power under s 122 of the Constitution. Under that power it can validly legislate for the acquisition of property of the Territory and of private individuals without the requirement imposed in relation to the property of the State or of persons within a State by sub‑s 51(xxxi) of the Constitution. No "just terms" relating to compensation or otherwise are required. We are unable to characterise these sections as mere conveyancing provisions. In our view, their proper construction requires the conclusion that the Commonwealth legislature, in passing s 70, was evincing a legislative intention of providing exhaustively for the rights and obligations of the Commonwealth in respect of reacquired lands, and of persons holding previously acquired interests in those lands. It was not intended that the Northern Territory legislature would thereafter be competent to deal with those lands or those interests by its own legislation under s 6, nor that the continuance, by force of sub-s 57(1) and (3), of pre-existing legislation of the nature of the Mining Ordinance, would have any effect upon those lands and those interests. In our opinion, there is a further road which leads to this result. On 1 July 1978 an ordinance of the Northern Territory, entitled the "Transfer of Powers (Self-Government) Ordinance 1978" came into operation. This Ordinance was clearly intended to operate in conjunction with the Self-Government Act (inter alia) by way of introducing relevant amendments into existing ordinances, which were to be continued as law of the new polity by force of s 57 of the Self- Government Act. It made, in our view, significant changes to the Mining Ordinance 1939. That Ordinance prior to self-government contained a definition, in s 7, of "Crown land", which was relevantly in the following terms:- "Crown land means all land of the Crown or of the Commonwealth ..." Section 39 and section 45, being the sections which provided the Administrator with power to grant gold mining and mineral leases respectively, were, so far as relevant, in the following terms:- "The Administrator may, subject to this Ordinance and the regulations, grant to any person, a lease of any Crown land ... for any or all of the undermentioned purposes ..." The Transfer of Powers (Self-Government) Ordinance 1978 effected the following changes, to be operative from the moment of self-government. The definition of "Crown land" in s 7 was altered by the removal of the words "or of the Commonwealth". Sections 39 and 45 were amended by the substitution of the words "the Minister" for the words "the Administrator". Thereafter, in our view, the Mining Ordinance was intended only to apply to lands held by the Crown in right of the Territory, and not to lands held by the Commonwealth. All future leases were to be granted by the relevant Northern Territory Minister only in respect of land vested in the Territory. There was no power in the Ordinance to grant leases over Commonwealth land, except insofar as that land might fall within the provisions of the Ordinance dealing with mining on private lands. This latter consideration does not arise in these proceedings and we do not stay to consider it. These amendments have important consequences in relation to the rights of renewal of leases which, by virtue of sub-s 70(6), were, after self-government, held from the Commonwealth in respect of reacquired Commonwealth land. The renewal of gold mining leases and mineral leases granted under the Mining Ordinance 1939 is provided for by ss 42 and 49 respectively. Each section provides that a lessee shall:- "at the expiration of his lease, have a right to renew the lease for further periods of twenty-one years, subject to the Ordinances and regulations relating to (gold mining/mineral) leases in force at the time of renewal." It is clear that the renewal of a lease amounts to the grant of a fresh lease. (ICI Alkali (Aust) Pty Ltd v Federal Commissioner of Taxation (1979) 53 ALJR 220 at 226; Gerraty v McGavin (1914) 18 CLR 152 at 163). In the latter case Isaacs J said (at 163) in relation to a lease renewed as the result of the exercise of an option, that "clearly it is a new lease, a new demise". The final clause of the sections under consideration, indeed, makes it clear that a lease obtained through exercise of a right to renewal may be different in content and operation from the previous one. It is, our view, clear that, having regard to the amendments introduced by the Transfer of Powers Ordinance, the Mining Ordinance 1939 could no longer apply to renewals sought under ss 42 or 49. They could only be granted in respect of "Crown land" which would not, because of the amendments, include land owned by the Commonwealth in the Territory. For all these reasons we are satisfied that, after self-government, the respondents had no right of renewal of their leases stemming from the provisions of the Mining Ordinance 1939 as continued in effect by sub-ss 57(1) and (3) of the Self-Government Act. Any right of renewal must be sought in the terms, operation and effect of sub-s 70(6) of that Act. The Effect of Sub-section 70(6) of the Self-Government Act Does that sub-section provide a right of renewal of the leases? This depends upon the significance to be attributed to the words "subject to the same terms and conditions". We come then to a consideration of the meaning of these words in the context of the Self-Government Act, and the Mining Ordinance 1939 and the leases granted thereunder. The form of lease granted to the respondents under ss 39 or 45 of the Mining Ordinance contained in itself no right to seek renewal. The recital refers to power given by s 39 to the Administrator to grant gold mining leases "upon the terms and conditions set forth in the said Ordinance", but the conditions and covenants set out in the body of the lease do not provide to the lessee any right to renew. In our opinion, it is quite clear that the right to renew in respect of such leases was not to be found in any term or condition of the lease itself, but solely in the relevant sections of the Mining Ordinance. As has already been pointed out, that right was considerably hedged about by the requirement that it could be exercised only in accordance with the Ordinances and Regulations which were in force at the time when renewal was available. It was submitted on behalf of the respondents that the right of renewal formed part of the estate of the lessee, irrespective of whether it had its origin in the lease itself. We consider that the case of Mercantile Credits Limited v Shell Co of Australia Limited (1975-76) 136 CLR 326 which was cited in favour of this proposition, does not, in fact, assist the respondent. The right to renew in that case clearly formed part of the lease as it was one of the covenants in the lease document itself. The learned primary judge held that the statutory right to renew was "picked up" by the wording of ss 69 and 70. The right to renewal was one of the "terms and conditions" upon which the relevant "interest" was held from the Territory or from the Commonwealth. This was on the basis that his Honour found that sub-s 70(6) was "intended to leave the holders of such interests in no worse position than they had enjoyed prior to the acquisition". This approach was espoused by the respondents in argument before this Court. It was submitted that a contrary construction would have the effect that the Commonwealth would acquire without compensation the vested statutory rights of renewal which the lease holders had theretofore held against the Territory. It was said that such an intention should not be imputed to the legislature unless it was expressed in clear terms. (Commonwealth v Hazeldell Limited (1921) 29 CLR 448 at 456; Colonial Sugar Refining Co Limited v Melbourne Harbour Trust Commissioners (1927) 38 CLR 547 at 559). We are not persuaded by these arguments. It is clear that in the case of mining leases previously granted in respect of Commonwealth land in the Territory, the effect of s 69 was to ensure that after self-government such mining leases would continue to be held and enjoyed in respect of the same land, which would then become land held by the Crown in right of the Territory. In those circumstances, sub-s 69(3) ensured that the leases would be held from the Territory "on the same terms and conditions as those on which they were held from the Commonwealth". In respect of those leases now held, by force of the section, from the Territory, the Mining Ordinance 1939 would continue in effect. The amendments introduced by the Transfer of Powers Ordinance would not operate to prevent this result nor would the considerations which were solely appropriate to the operation of sub-s 70(6). Accordingly , the lessees of such land would have the benefits of, and be subject to the obligations of, the lease itself, and would also have the obligations and benefits, including those of renewal, provided for by the Ordinance and any subsequent amendments to it. In other words, they would be in the same position as they were before the coming into operation of the Self-Government Act. We can see no basis, however, for assuming a legislative intent on the part of the Commonwealth that the holders of mining leases in respect of land reacquired from the Territory, pursuant to the provisions of s 70, would be maintained in the same position. The land was, after all, to be acquired for a public purpose, in the present case that of incorporation in a public park. As the legislation had its constitutional basis in s 122, the Commonwealth was under no obligation to provide "just terms" to persons who might be disadvantaged by the acquisition of the land. (Teori Tau v The Commonwealth of Australia (1969) 119 CLR 564 at 570). It may well have been seen as inimical to the Commonwealth's purposes with respect to the re-acquisition of the land, that there should exist in respect of it mining leases which were capable of renewal for extensive periods of time. For our part, we are not prepared to read into the phrase "terms and conditions" any reference to rights founded upon statutory provisions and not upon the express terms of the lease. In this regard, it has not been suggested in argument that the terms of the lease itself are capable of achieving this result. In our opinion, therefore, the statutory rights to renewal were not "picked up" by the provisions of s 70 and particularly of sub-s 70(6). We are therefore of the view that after 1 July 1978 the respondents had no right to the renewal of any of the leases which are the subject of this litigation. The Territory administration had no power to renew them and the appellants had no right to renewal which could be asserted against the Commonwealth. This, however, does not entirely dispose of these proceedings. Even if the appellants did not have rights to renewal, the question still remains whether new leases were in fact granted to them on behalf of the Commonwealth at the time when purported renewal occurred by the Northern Territory authorities. There is the further question of whether, should the latter question be decided adversely to them, the respondents are entitled to rely upon some preclusionary doctrine which would prevent the appellants from asserting either that the respondents' leases were not renewed, or that fresh leases were not granted to them. If the respondents are unsuccessful on these issues then, other questions raised in these proceedings do not fall for determination. For instance, if there was no renewal or fresh grant, then the question whether there was a valid transfer of the leases simply cannot arise. Similarly, the questions whether the proclamation of the third stage of the Kakadu National Park amounted to a resumption under the terms of the lease, or whether it was an infringement of the guarantee said to be provided by sub-s 50(2) of the Self-Government Act, would not call for determination. DID THE NORTHERN TERRITORY ADMINISTRATION ACT AS THE COMMONWEALTH'S AGENT WHEN IT PURPORTED TO RENEW THE RESPONDENTS' LEASES? The first question was not, in fact, argued in the appeal; nor does it appear to have arisen at the hearing. The learned primary judge, having held that the respondents had a right to renewal exercisable against the Commonwealth by virtue of it being incorporated in the rights given to them pursuant to sub-s 70(6) of the Self-Government Act, was only concerned to determine whether the renewals granted by the Northern Territory Administration were operative against the Commonwealth. His Honour, therefore, considered the question of agency between the Territory and the Commonwealth only in the context of the exercise by the respondents of rights to renew the leases. As he had held that such rights existed, it was not necessary for him to consider whether, in the absence of such rights, the purported renewals nevertheless operated as fresh grants of leases by the Commonwealth, as principal, through the agency of the Territory. Although this matter was not the subject of direct argument in the appeal it, nevertheless, in our view, arises and must be considered. The learned primary judge made findings in the area which have been relied upon by the respondents in support of their contention that, in the absence of power on the part of the Territory to renew the leases in its own right, it nevertheless renewed them on behalf of the Commonwealth. His Honour referred to there being "evidence of understandings or assumptions about the role of the Northern Territory Government in the administration of mining leases on Commonwealth Crown land". After referring to this evidence, he expressed the following conclusion:- "In my opinion, it may well be the case that there was no agreement between the Commonwealth and the Northern Territory. However, in the absence of its own mining statute and the administrative support for such legislation in light of the evidence to which I have referred, the position seems to have been that, at least until about 1988, the Commonwealth had, in effect, left the Northern Territory to administer the formal and technical aspects of mining leases on Commonwealth land. While Territorial decisions could have no direct legal effect, it is the case that the Commonwealth effectively acquiesced in them." This finding falls far short of establishing that the Commonwealth established the Northern Territory Government as its agent to grant leases on its behalf over its land in the Territory. Whatever might be said of its acquiescing in the renewal on its behalf of existing leases so that, mutatis mutandis, they applied in respect of the reacquired land, the same could not necessarily be said of the existence of some general mandate, express or implied, to grant fresh leases over the contemplated parkland in lieu of leases which had expired without right of renewal. Moreover, in our opinion, there is considerable substance in the attack made by the appellants upon his Honour's findings set out above. His Honour placed some reliance upon the access authorities issued in 1988. He appears to have accepted a submission that the issue of the access authorities and "the way in which they were administered, evidenced an informal arrangement between the Commonwealth and the Northern Territory" under which "the Northern Territory would be responsible for the day-to-day supervision of mining titles in the conservation zone". Also, the Administrator of the Northern Territory was to be the person empowered to give relevant approvals under the access authorities. This appeared to conform with a letter of 2 December 1987 between two relevant Commonwealth Departments where it was stated in relation to the proposed authorities:- "While we recognise that no formal administrative arrangements currently exist between the Commonwealth and NT, the reality of the situation would indicate the NT being involved in implementing the conditions to apply to interim access. For example the NT still administers the existing titles as a de facto agent of the Commonwealth, and NT statutes may continue to apply in relation to health and safety, industrial matters and, of course, Aboriginal sacred sites." Other inter-departmental memoranda and background briefs, together with oral evidence as to the situation obtaining in late 1987 and early 1988, were to the same effect. However, other evidence in the case indicates quite clearly that, as at that time, there was quite genuine doubt as to the validity of the Northern Territory's renewal of the relevant leases. The form of access authorities which were brought into existence to enable exploration to continue in the lease areas and associated areas, recited the existence of "uncertainty ... as to the validity of" the relevant leases. In our view, it is important to bear in mind, as submitted by the appellants, that the significant period to be considered is the period of purported renewal of the leases, namely 1978 to 1981. Later renewals can be disregarded. If there was no authority, express or implied, in the Northern Territory Government to make the earlier renewals then, there is no suggestion in the evidence that authority was acquired later. On 24 November 1980, the Northern Territory Department of Mines and Energy sought comments from the Commonwealth Department of Administrative Services in respect of an application that had been made by a mining company for an Exploration Licence over an area including Commonwealth land. The Department replied to this letter on 15 December 1980, stating quite categorically that, "as the ownership of minerals in land acquired by the Commonwealth vests in the Commonwealth, the Northern Territory Mining Act does not apply and thus, no mining or exploration rights can be given by the Northern Territory". On the same day another letter was sent to the Northern Territory Department of Mines and Energy, apparently in reply to an earlier inquiry. It states:- "It is the opinion of both Mr I. Barker, Q.C. and the Commonwealth Solicitor-General that minerals in land acquired by the Commonwealth vest in the Commonwealth. Thus, the provisions of the Northern Territory Mining Act do not apply to land of the Commonwealth. The future ownership of minerals in lands acquired for purposes of National Park and Conservation zones is under consideration by the Commonwealth Government." It would appear then, as was submitted by the appellants, that the renewals of the respondents' mining leases were made, for practical purposes, in defiance of these views. Quite clearly, no express authority was given by the Commonwealth to the Northern Territory to deal with mining interests on the reacquired land. Whilst it is true that the Commonwealth itself passed no legislation dealing with such interests, it does not follow that it impliedly authorised the Northern Territory to continue to deal with the land as though its legislation still applied to it or, more particularly, to renew or grant interests in respect of the land as agent for the Commonwealth. We are persuaded that the purported renewals of the leases by the Northern Territory did not, by way of any argument based on agency, amount to a grant to the respondents of fresh Commonwealth mining leases corresponding with the earlier Northern Territory leases. CAN THE APPELLANTS BE PRECLUDED FROM ASSERTING THAT THE LEASES WERE NOT RENEWED OR GRANTED BY THE NORTHERN TERRITORY GOVERNMENT? We turn to the second question. Does some preclusionary doctrine prevent the appellants asserting that the leases were not renewed or granted afresh by the Northern Territory Government on the dates of their purported renewals? A submission to this effect was rejected by the learned primary judge. He found that the respondents had validly exercised a right of renewal, which they held pursuant to sub‑s 70(6) of the Self-Government Act, by making the relevant applications to the Northern Territory Government. We need not consider this aspect of the case in the circumstances of our finding that no such right of renewal existed. His Honour, however, considered the alternative submission that the appellants could not be heard to dispute that the respondents held valid leases. He rejected this submission. His reasons were shortly expressed. It is convenient to set them out in full, as follows:- "Numerous representations and letters were relied upon by the applicants to establish that the Commonwealth, by its Ministers and officers, had represented that Newcrest was the lessee of the leases, that they were extant and that Newcrest could continue to exercise the rights conferred by the leases upon the performance of various environmental ministerial and regulatory requirements, including the preparation of an Environmental Impact Statement and a Public Environment Report. The applicants did not submit that the Commonwealth is precluded by estoppel or otherwise from making the proclamations that had the effect of incorporating the land over which the mining leases existed into the Kakadu National Park. Rather, they argued, the Commonwealth is precluded by its conduct from denying that they were possessed of property rights at the time of the making of the proclamations. On the evidence taken as a whole, I do not think that the Commonwealth can be accused of representing to the applicants that it regarded the leases as valid. There was the context free remark attributed by Carter to McHugh sometime in 1985 that the Attorney-General had agreed that the leases were valid and other incidental comments. But the content of the letters, meetings and conversations otherwise relied upon related overwhelmingly to the probability that the Joint Venture would be permitted to mine on Coronation Hill. Whether or not mining would be permitted did not depend upon the validity of the leases, but ultimately upon the attitude of the relevant Ministers to the contending political and public interest considerations involved in the case. As early as 1985 it was apparent that the Joint Venturers did not harbour any illusion about the importance that the yet to be resolved political process could have for the future of mining on Coronation Hill. As observed earlier in these reasons, I accept that the Ministerial statement of September 1986, and the conversations which formed the background to it, gave them reason to believe that there was a good prospect that mining would be permitted if worthwhile deposits were proved. I do not accept that they came to a view about the validity of the leases as a result of this statement or, indeed, as a result of any other statement made to them. Their ability to develop the deposits turned on political rather than legal considerations. In his response to concerns raised about the validity of the leases, West looked for a solution, the grant of authorities under the Lands Acquisition Act 1955, which did not require the question of validity to be resolved. The dominance of political considerations and the importance of governmental support for the project, independent of the validity of the leases, was emphasised by the fact that the whole project was critically dependent upon the Joint Venture getting access to additional land for overburden, treatment facilities and residue disposal. Whatever dissection may be made of individual statements and responses, it is, in my opinion, unrealistic to suppose that the applicants have acted to their detriment or altered their position on the strength of representations or assumptions about the validity of the mining leases. While these properties may have been a factor in negotiations with the Commonwealth, they were not apparently used in that way. With respect to the substantial legal and factual submissions made on this issue, I do not accept that the Commonwealth is precluded by estoppel or any other preclusionary doctrine from contesting the validity of the leases." Some mild criticism was made in argument as to the compressed nature of these findings and as to the absence from them of consideration of details of the evidence, documentary, affidavit and oral, that had been placed before his Honour on this aspect of the case. However, when one takes into account the size and complexity of that material, as shown by the appeal books, no valid criticism can, in our opinion, be made of the approach taken by his Honour. We consider, with respect, that he has made all necessary ultimate findings of fact to ground his decision on these issues. We have engaged in the not inconsiderable labour of reading and considering the material to which the Court's attention has been directed in the course of this appeal, in oral argument and in the copious written submissions which have been supplied. Having done so, we are satisfied that no error of fact or law, on his Honour's part, has been demonstrated. Indeed, our readings of the material and consideration of the arguments advanced leads us to the same conclusions. In these circumstances, we propose to be brief in dealing with the issues raised in argument before us. Election and Waiver It was submitted on behalf of the respondents that after the Commonwealth's attention had been directed to the possible invalidity of the leases, the course that was thereafter taken was such as to bind it to an acceptance of the validity of the leases for all purposes and in all circumstances. It had either elected irrevocably to treat the leases as valid or had waived its right to assert the contrary. We are satisfied, as was his Honour, that these submissions should be rejected. What the Commonwealth did, when faced with the contention that the leases under which the respondents were exercising rights of occupation were invalid and that, consequently, they had no right to be on the land, cannot be seen as the performance of deliberate acts with knowledge, resulting in the relinquishment of rights to the adoption of a contrary position. The evidence clearly establishes that the Commonwealth neither affirmed nor denied the validity of the leases. It adopted the view, through the relevant Minister, Mr West, that a state of legal uncertainty existed as to the validity of the leases and the rights of the Joint Venture to be present on the land and conduct exploration. It adopted the expedient of granting the authorities under the Lands Acquisition Act 1955, in order to regularise the presence and activities of the Joint Venture upon the lands, and also to provide a legitimate basis for the Joint Venture to extend its exploratory operations beyond the geographical limits of the lease areas. The recitals in the authorities make it plain that they were issued in circumstances where there was "uncertainty" as to the validity of the leases on the part of the Government and a contention on the part of the Joint Venture that the leases were valid. In our view, the parties, whilst agreeing to differ on this fundamental question, accepted a solution, which was seen by all concerned to be a stopgap measure, to hold the situation and enable the work to proceed. The measure was accepted by the Joint Venture in the hope that it would subsequently be given a mining title by the Commonwealth, which would embrace the old areas and additional areas which were vitally necessary to enable a mining project to proceed. The existing lease areas were, and were known to be, quite inadequate for this ultimate purpose. The evidence called on behalf of the Joint Venture makes it clear that those in authority, such as Mr Carter and Mr Hawkes, were fully aware that the ultimate decision as to whether they could exploit a mining venture at Coronation Hill and associated areas lay in the realm of politics. It was for this reason that the respondents had not been seeking to exercise rights to mine which, arguably, they already had, on the assumption of the validity of the leases, but were seeking to achieve, by lobbying and the presentation of carefully prepared arguments to government officials, a political outcome which would see the granting to them of an appropriate and viable Commonwealth mining title. In these circumstances, we are quite satisfied that no application of the doctrines of election or waiver required the Commonwealth to acknowledge irrevocably the validity of the leases. Estoppel in pais In our view, his Honour was correct in finding that the Commonwealth could not "be accused of representing to the applicants that it regarded the leases as valid". Of course, its officials and Ministers, prior to February 1988 certainly made no assertion of invalidity. The evidence, in our view, makes it clear that no attention was given on the part of the Commonwealth to any possible grounds of invalidity until it was abruptly required to consider this question by the activity of conservationists in 1988. Before that it had a situation where the mining interests were present on the areas and were carrying out exploration work which, undoubtedly, significantly intensified after the Ministerial statements of September and December 1986. It appears to have been accepted that the Joint Venture had a right to be present on the land and to be conducting those activities. The question was whether that right was to be allowed to continue and to be extended into associated areas with an increase in activity to the level of actual mining. There were numerous occasions, as is shown by the evidence, when Ministerial parties visiting the areas were shown areas of land said to be within the "leases" of the Joint Venture. No query was raised by the visitors as to the accuracy of these statements, although, at times, specific criticisms were made of what was said to be environmentally damaging aspects of the activities being conducted. The Joint Venture had a legal opinion indicating that the leases were valid. We consider, however, having regard to the fact that they were leases granted by the Northern Territory Administration and purportedly renewed after self-government in respect of land which had become Commonwealth land, a certain uneasiness existed as to the legality of the situation. Certainly, it would appear, that the issue of the legality of the leases, and its acceptance by the Commonwealth, was avoided. No direct request to the Commonwealth appears to have been made, prior to 1988, that it acknowledge the absence of any problem in relation to the leases. Indeed, Mr Carter remarked in evidence that, although the mining leases could have been worked, "we were really dependent on the goodwill of the Commonwealth to be able to do anything there and if we had gone straight in and started to mine - setting aside the fact that it was impractical in the relatively small area we had - we would have really been cocking our noses at the government and we would have done that at our peril". We are quite unable to accept that, in these circumstances, the silence of the Commonwealth officials and Ministers on the question of validity was, or was capable of being, construed by the Joint Venture as a representation that the Commonwealth regarded the leases as, in all relevant respects, valid. No estoppel through representational conduct could, in our view, therefore, arise. The question of estoppel arising from the acceptance of a "common assumption" of the validity of the leases was also fully argued before us, mainly through the medium of written submissions. This area of the law of estoppel has received extensive consideration in the cases. The basic doctrine was expounded in Grundt v Great Boulder Pty Gold Mines Limited (1937) 59 CLR 641. Dixon J said (at 674) that the doctrine is founded upon the principle "that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations". His Honour went on to explain the doctrine more fully (at 674-675) as follows:- "...it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice. Thus, when, in Holt v Markham (1923) 1 K.B. 504, the fact that the defendant had spent the money sued for, believing it to be his own to spend, was treated as a sufficient alteration of his position to estop the plaintiff from departing from the assumption which he had induced, the harm or detriment giving rise to the estoppel was that which would be done by requiring the defendant to repay money which he no longer had. ..." Further explanation was provided at 675-676 in the following terms:- "The justice of an estoppel is not established by the fact in itself that a state of affairs has been assumed as the basis of action or inaction and that a departure from the assumption would turn the action or inaction into a detrimental change of position. It depends also on the manner in which the assumption has been occasioned or induced. Before anyone can be estopped, he must have played such a part in the adoption of the assumption that it would be unfair or unjust if he were left free to ignore it. But the law does not leave such a question of fairness or justice at large. It defines with more or less completeness the kinds of participation in the making or acceptance of the assumption that will suffice to preclude the party if the other requirements for an estoppel are satisfied. A brief statement of the recognized grounds of preclusion is contained in the reasons I gave in Thompson v. Palmer (1933) 49 C.L.R. at p. 547, and it is convenient to repeat it:- `Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party. He may be required to abide by the assumption because it formed the conventional basis upon which the parties entered into contractual or other mutual relations, such as bailment; or because he has exercised against the other party rights which would exist only if the assumption were correct, as in Yorkshire Insurance Co. v. Craine (1922) 2 A.C., at pp. 546, 547; 31 C.L.R. 27, at pp. 30, 31; cp. Cave v. Mills (1862) 7 H. & N. 913, at pp. 927, 928; 158 E.R. 740, at pp. 746, 747; Smith v. Baker (1873) L.R. 8 C.P., at p. 357; Verschures Creameries Ltd v Hull and Netherlands Steamship Co. (1921) 2 K.B., at p. 612; and Ambu Nair v. Kelu Nair (1933) L.R. 60 Ind. App. 266, at p. 271; or because knowing the mistake the other laboured under, he refrained from correcting him when it was his duty to do so; or because his imprudence, where care was required of him, was a proximate cause of the other party's adopting and acting upon the faith of the assumption; or because he directly made representations upon which the other party founded the assumption'." If the doctrine comes into play, the remedy which equity provides is a flexible one. This aspect of the doctrine was fully explored in the judgments of the members of the High Court in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394. Thus, Deane J said (at 442):- "Even in a case where an estoppel by conduct is established and would prima facie operate to preclude departure from the assumed state of affairs, the circumstances may be such that to grant unqualified relief on that basis would exceed any requirements of good conscience and be unduly oppressive of the other party. `Of all doctrines, equitable estoppel' - and, I would add, equitable relief based on the assumed state of affairs - `is surely one of the most flexible' (see Texas Bank [1982] 1 Q.B., at p. 103; Taylors Fashions [1982] 1 Q.B., at p. 153). There is clear support in the cases and learned writings for the view that, in this as in other fields, equitable relief must be moulded to do justice between the parties and to prevent a doctrine based on good conscience from being made an instrument of injustice or oppression. That being so, it should be accepted that the prima facie entitlement to relief based on the assumed state of affairs must, under a doctrine which is of general application in a system where equity prevails, be qualified if it appears that that relief would exceed what could be justified by the requirements of conscientious conduct and would be unjust to the estopped party. In some such cases, an appropriate qualification may be a requirement that the party relying upon the estoppel do equity (see, e.g. Texas Bank [1982] 1 Q.B., at pp. 108-109). In other cases, the relief to which the party relying upon the estoppel would be entitled upon the assumed state of affairs will merely represent the outer limits within which the jurisdiction of a modern court to mould its relief to suit the circumstances of a particular case should be exercised in a manner which will do true justice between the parties (cf. Hamilton v. Geraghty (1901) 1 S.R. (N.S.W.) Eq. 81, at pp. 87-88). In some such cases the appropriate order may be one which places the party entitled to the benefit of the estoppel `in the same position as [he or she was] before' (cf. Birmingham (1888) 40 Ch. D., at p. 286). In others, the appropriate order may be an order for compensatory damages." The relief sought in the present case, as appears from the pleadings, is directed to making good the "assumption" that the respondents' mining leases were valid and existed as rights of property at the time of the Proclamations which took the relevant lands into the Kakadu National Park. Indeed, it would appear that they seek a remedy entitling them to exercise all the rights of the mining leases, notwithstanding the inclusion of the relevant lands in the Park. It appears to be conceded on behalf of the appellants that before February 1988 there was, indeed, a common assumption that the mining leases were valid. This assumption did not amount to the according of validity, in precise terms, to individual leases. Indeed, some of the titles which had been conferred under the Mining Ordinance 1939 were not "leases" but some lesser title. The assumption appears to have been a broad one which could be described as finding expression in the wording of the Ministerial statement, which referred to "the mineral leases at Coronation Hill". There is no doubt that after the making of the 1986 Ministerial statement, the Joint Venture was emboldened to increase its activities and expenditure on the areas it was working. Its attitude to continuing its activity and expenditure was necessarily affected by the events of 1988 which led to the granting of the authorities under the Lands Acquisition Act on the expressed basis, also emphasised by the relevant Minister, Mr West, that there was "uncertainty" as to the validity of the leases. The optimum position as to "assumption" and "inducement" in the periods before 1988 of the Joint Venture, appears in passages in the evidence of Mr Carter, who may be regarded, in this area, as the most significant witness for the respondents. In his affidavit he makes the following statements:- "On 16 September 1986, a Joint Statement was issued by the then Minister for Resources and Energy (Senator Evans) and the then Minister for Arts, Heritage and Environment (Mr Barry Cohen). In that Statement, the Ministers announced that the Coronation Hill project would proceed subject to certain conditions. ... Prior to this statement having been made, the Joint Venture had drilled 5 holes in late 1984 and several further holes in 1985 to confirm the 1984 findings. But when the statement was made on 16 September 1986, and I had knowledge of this statement when it was made, it was sent to the other Joint Venture partners and thereafter decisions were taken to expend considerable moneys in grid drilling. The statement of 16 September 1986 was of significance to me in that it revealed the Government's intention to exclude an `appropriate mining lease area' from the stage III extension of the Kakadu National Park and to permit a `full assessment of the resource potential of the area notwithstanding that it had also been decided to exclude the possibility of any new mining taking place elsewhere within the Park boundaries.' In the absence of Government acceptance of mining in the Conservation Zone, BHP was not prepared to expend any further moneys in the exploration of not only the Mining Leases but the Conservation Zone generally. The Joint Ministerial Statement deposed to in the preceding paragraph provided BHP and the other Joint Venture partners with the comfort and support necessary to encourage the Joint Venture to increase its exploration program at Coronation Hill quite dramatically. ... On 16 December 1986, Senator Evans and Mr Cohen issued a further Joint Statement dealing with Coronation Hill. ... I regarded the 16 September 1986 statement as a general endorsement of the validity of our Mining Leases and this statement made on 16 December 1986 as clarification of such matters of detail as to the parameters of the borders of the Conservation Zone." These statements were extensively explored in Mr Carter's oral evidence. His Honour had the usual advantage of the primary judge in assessing the evidence. As has been seen, he accepted that "the Ministerial Statement of 16 September 1986 and the conversations which formed the background to it, gave them reason to believe that there was a good prospect that mining would be permitted if worthwhile deposits were proved". He did not accept "that they came to the view about the validity of the leases as a result of this statement or, indeed, as a result of any other statement made to them". We regard this as a finding of fact which, in the circumstances, cannot properly be reviewed. In any event, it is plain that, in large part, the expenditure after 1986 must be attributed to the expectation that mining would be allowed to proceed in the "lease" areas and associated areas. This mining was to take place, not pursuant to the provision of the old leases, but under a new Commonwealth grant which would contain many other conditions which would, no doubt, be the subject of future negotiation. We can see no basis for attributing any significant role in the formation of the relevant assumption to any statements made to persons on behalf of the Joint Venture. It must be borne in mind that the respondents' primary claim in this litigation is that they be accorded the rights previously held under the Northern Territory leases. In our view, in the circumstances of this case, equity would require no such outcome. CONCLUSION In our opinion, therefore, there has been no valid renewal of the respondents' leases which had expired before the proclamations were made; nor are the appellants required, in law, to concede their validity. Leases MLN 78 - MLN 89, which did not expire until 31 December 1994, remained valid and operative at the time of the proclamations and at the date of the decision of French J, subject to the effect upon them of those proclamations. In these circumstances, other matters argued in the appeal and cross-appeal, do not arise. Accordingly, in our view, the appeal should be allowed. The declaratory orders of French J, other than the declaration in respect of leases MLN 78 - MLN 89, should be set aside and the cross-appeal should be dismissed. In these circumstances we would ordinarily be of the view that costs in this Court and at first instance should follow the event. However, as particular costs orders are sought and have not yet been the subject of full argument, we consider that, at this stage, costs should be reserved until the proceedings have been finalised in the High Court. I certify that this and the preceding fifty three (53) pages are a true copy of the reasons for judgment herein of the Honourable Chief Justice Black and the Honourable Justice Foster. Associate: Date: 5 June 1995 IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. WG145 of 1993 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE COMMONWEALTH OF AUSTRALIA First appellant THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE Second appellant AND: NEWCREST MINING (WA) LIMITED First respondent BHP MINERALS LIMITED Second respondent BETWEEN: NEWCREST MINING (WA) LIMITED First cross-appellant BHP MINERALS LIMITED Second cross-appellant AND: THE COMMONWEALTH OF AUSTRALIA First cross-respondent THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE Second cross-respondent CORAM: BLACK CJ, BEAUMONT AND FOSTER JJ. DATE: 5 JUNE 1995 INDEX TO REASONS FOR JUDGMENT OF BEAUMONT J. INTRODUCTION 1 - 3 THE FACTS FOUND AT FIRST INSTANCE 3 -22 (a) The Coronation Hill Joint Venture 3 (b) The history of the leases 3 - 6 (c) The original proclamation of the Park in 1979 6 (d) The activities of the Joint Venture including its dealings with Commonwealth and Territory Governments from 1967 until September 1986 7 - 10 (e) The Joint Ministerial statement made on 14 September 1986 10 (f) The Joint Ministerial statement made on 16 September 1986 10 - 11 (g) Activities of the Joint Venture including its dealings with the Commonwealth and Territory Governments between September and December 1986 11 - 12 (h) The Joint Ministerial statement made on 16 December 1986 12 (i) Activities of the Joint Venture and its dealings with the Commonwealth Government between January and March 1987 12 - 15 (j) Sale of BHP Mineral's gold interests to Newcrest in March 1987 15 (k) Designation, in April 1987, of BHP Minerals as "proponent" in accordance with the provisions of the Environment Protection (Impact of Proposals) Act 1974 15 (l) The creation of Stage 3 and of the Conservation Zone in June 1987 15 - 16 (m) Visit by Senators Richardson and Collins to Coronation Hill in January 1988 16 - 17 (n) The Joint Venture's application for access authority on 19 February 1988 17 - 19 (o) The issue of additional access authorities in May, August and December 1988 and April 1989 19 - 20 (p) Application by BHP Gold in June 1988 for renewal of MLN 19 20 (q) The Government proposal, in October 1989, to declare the Conservation Zone part of the Park and the Proclamation under the National Parks Act in November 1989 20 - 22 (r) The proclamation of the further extension to Stage 3 of the Park 22 THE ISSUES AT FIRST INSTANCE 22 - 26 (1) The original grant of the leases 23 (2) The renewals and transfers of the leases 23 - 24 (3) The purported vesting of the lands comprising the leases in the Director under the National Parks Act 24 - 25 (4) Estoppel and related issues 25 - 26 THE REASONING AT FIRST INSTANCE 26 - 30 (1) The mining leases and Self-Government 26 - 27 (2) The transfers of the leases 27 (3) The exercise of the rights of renewal of the leases 27 - 29 (4) Acquisition and compensation 29 - 30 THE CONCLUSIONS EXPRESSED AT FIRST INSTANCE 30 - 31 THE COMMONWEALTH'S APPEAL 31 - 32 NEWCREST'S CROSS-APPEAL 33 NEWCREST'S NOTICE OF CONTENTION 34 - 35 THE COMMONWEALTH'S NOTICE OF CROSS CONTENTION 36 - 37 CONCLUSIONS ON THE APPEAL AND CROSS-APPEAL 37 MLN 19 37 - 59 (a) Introductory 37 - 38 (b) BHP minerals' rights as lessee in June 1978 (i.e. immediately before the grant of self-government) 38 - 44 (c) BHP minerals' rights as lessee upon the grant of self-government (i.e. as at 1 July 1978) 44 - 50 (d) Did s.70(6) of the Self-Government Act apply only to interests in land other than interests in minerals? 50 - 52 (e) In any event, did the grant of self- Government and s.70, in particular, modify or extinguish the pre-existing rights of Crown lessees in minerals? 52 - 53 (f) Did the statutory right of renewal of a mining lease survive the grant of self-Government? 54 (g) Did the enactment of the Mining Act 1980 (N.T.) extinguish or modify the lessee's interest under MLN 19? 55 - 56 (h) Was the transfer of the leases (including MLN 19) to BHP Gold on 1 June 1987 valid? 56 (i) Was MLN 19 renewed at the expiration of its term on 31 December 1988? 56 - 58 (j) The significance, if any, of the absence of the Commonwealth's consent to the renewal of MLN 19 58 (k) Relief to be granted in respect of MLN 19 58 - 59 MLN 23 59 - 60 MLN 24 60 - 64 MLN 25 - 28 AND MLN 751 - 6 64 MLN 78 - 89 65 ORDERS PROPOSED 65 IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. WG145 of 1993 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: THE COMMONWEALTH OF AUSTRALIA First appellant THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE Second appellant AND: NEWCREST MINING (WA) LIMITED First respondent BHP MINERALS LIMITED Second respondent BETWEEN: NEWCREST MINING (WA) LIMITED First cross-appellant BHP MINERALS LIMITED Second cross-appellant AND: THE COMMONWEALTH OF AUSTRALIA First cross-respondent THE DIRECTOR OF NATIONAL PARKS AND WILDLIFE Second cross-respondent CORAM: BLACK CJ, BEAUMONT AND FOSTER JJ. DATE: 5 JUNE 1995 REASONS FOR JUDGMENT BEAUMONT J. INTRODUCTION The first respondent, Newcrest Mining (WA) Limited, ("Newcrest") is the manager of the Coronation Hill Joint Venture ("the Joint Venture") which has explored for minerals under several leases granted by the Northern Territory Administration (the "leases") at and near Coronation Hill in the Kadadu/Alligator Rivers region. In October 1989, the Commonwealth Government decided that the area of the Kakadu National Park ("the Park") should be significantly increased. If implemented, this decision would, in its effect, prohibit Newcrest from exploring for minerals under its leases. Newcrest commenced proceedings in the High Court seeking a declaration that the proclamation extending the Park and the enactment of certain provisions of the National Parks and Wildlife Conservation Act 1975 (Cth) (the "National Parks Act") were invalid. Save for the constitutional questions reserved for the High Court, the trial of the case was remitted by the High Court to this Court. The trial was conducted by French J. (see the report, Newcrest Mining (WA) Ltd. v The Commonwealth (1993) 46 FCR 342). In his reasons, his Honour posed for determination a series of questions arising out of the pleadings and, where necessary, answered those questions by way of conclusion. In the result, French J. declared that, subject to the operation of proclamations made under the National Parks Act in November 1989 and June 1991, Newcrest was, with one exception, the lawful lessee of the leases. However, his Honour also held that MLN 19 had not been validly renewed. The Commonwealth and the Director of National Parks and Wildlife ("the Director") have appealed from this declaratory order. They seek, instead, declarations that a number of the leases had expired and had ceased to exist; and that the interests of the lessee in the other leases were extinguished by the proclamation made under the National Parks Act in June 1987 which created Stage 3 of the Park. For their part, the respondents have cross-appealed, seeking declaratory orders as to Newcrest's continuing rights and entitlements in respect of MLN 19. THE FACTS FOUND AT FIRST INSTANCE In order to understand the issues arising on the appeal and the cross-appeal, it will be necessary to refer to the findings of facts made by his Honour which may be summarised, for present purposes, as follows: (a) The Coronation Hill Joint Venture Deposits of uranium were discovered at Coronation Hill in the South Alligator River Valley in 1953. From time to time, exploration activity has been carried out at the site by several parties, usually in joint ventures, particularly since 1984, although applications for mineral leases were made as early as 1947. In 1987, BHP Minerals Limited, the second respondent, a member of the Joint Venture (previously named Dampier Mining Co. Ltd.), sold its interest to an associated company, BHP Gold Mines Ltd, later renamed Newcrest. (b) The history of the leases The leases were originally granted at different times between 1947 and 1974 and purportedly renewed between 1978 and 1989. They were originally granted under the Mining Ordinance 1939 (NT) for a term of years expiring on 31 December in the 21st year after the grant. (Mining leases were dealt with in Part V of the Ordinance. Division 1 of that Part dealt with gold-mining leases. By s.42, it was provided that the term of such a lease shall not exceed 21 years "but every lessee shall at the expiration of his lease, have a right to renew the lease for further periods of [21] years, subject to the Ordinances and regulations relating to gold-mining leases in force at the time of renewal". Mineral leases, for mining for minerals other than gold, were dealt with by Division 2 of Part V. Section 49 was in terms identical with the provisions of s.42.) The leases under appeal are MLN 23 to 28, 78 to 89 and 751 to 756. Lease MLN 19 is, as has been noted, the subject of the cross-appeal. The history of the leases is shown in the table below. Number Original Last Expiry Last Next Expiry Grant Purported Under Renewal by Northern Northern Territory Territory Renewal MLN 19 22/7/47 31/12/88 3/8/89 31/12/2009 MLN 23 6/5/58 31/12/78 28/11/78 31/12/1999 MLN 24 11/10/57 31/12/77 28/11/78 31/12/1998 MLN 25 6/5/60 31/12/80 1/1/81 31/12/2001 to (Notified MLN 28 21/1/81 on application made 16/12/80) MLN 78 17/7/74 Original to grant expired 31/12/94 MLN 89 MLN 751 25/3/60 31/12/80 1/1/81 31/12/2001 to (Notified MLN 752 21/1/81 on application made 16/12/80) MLN 753 1/4/60 31/12/80 1/1/81 31/12/2001 to (Notified MLN 756 21/1/81 on application made 16/12/80) In considering the history of the leases, account must be taken of the impact of the Northern Territory (Self Government) Act 1978 ("the Self Government Act"). This is a difficult but central question in the appeal and the detail of the legislation needs to be considered. It will suffice to note here that, broadly speaking, following the enactment of that law in June 1978, all land in the Territory which was previously vested in the Commonwealth was transferred to the Territory, including the lands the subject of the leases; but, simultaneously, the Commonwealth acquired the leased lands as part of the acquisition of a larger area which was to become the Park. (c) The original proclamation of the Park in 1979 In June 1978, a notice was published in the Commonwealth Gazette under s.70(2) of the Self-Government Act whereby the Governor-General authorised the acquisition of the fee simple interest in certain lands, including the lands comprised in the leases, for the public purpose of a National Park. In April 1979, the Governor-General proclaimed what was to be known as Stage 1 of the Park, acting under s.7(2) of the National Parks Act, specifying 1,000 metres as the depth to which the sub-soil beneath the land was taken to be within the Park. In March 1984, notice was given in the Commonwealth Gazette, pursuant to s.7(12) of the National Parks Act, of the Director's intention to submit a report recommending the creation of Stage 3 of the Park, being an area to the south of Stage 1. Stage 3 was to include the lands comprised in the leases. (d) The activities of the Joint Venture including its dealings with Commonwealth and Territory Governments from 1967 until September 1986 Between 1967 and May 1984, the Joint Venture undertook exploration at Coronation Hill for uranium and gold at a total cost of about nine million dollars. However, no significant commitment to future mining activity was made during this period. In May 1984, representatives of the Joint Venture informed an officer of the Commonwealth Department of Resources & Energy ("DRE") that the Joint Venture did not wish to allocate resources for gold exploration in the area until it had received assurances that mining could proceed. The DRE officer said, in effect, that the Joint Venture would have to conduct some exploration to show its bona fides. Later in that month, the Joint Venture wrote to the second appellant, the Director of the Australian National Parks and Wildlife Service ("the Director") urging that Stage 3 not be included in the Park or, if it were, that mining be permitted there on appropriate environmental conditions. In late 1984, the Joint Venture informed the Commonwealth Bureau of Mineral Resources ("BMR") that recent drilling on the site had indicated significant gold deposits. In October 1984, an officer of DRE informed the Joint Venture that a decision on the question whether the area, the subject of the pastoral leases adjoining the Coronation Hill site, should become part of the Park would not be made until after the forthcoming Federal election. In February 1985, DRE informed the Joint Venture that the Prime Minister had directed that the normal procedures for the proclamation of National Parks not be followed and that, inter alia, BMR should evaluate the mineral potential of the area. In May 1985, the Joint Venture made an application, apparently under the Mining Act 1980 (N.T.), both to the Territory and to the Commonwealth, for an exploration licence over 476 blocks in the Coronation Hill locality. In June 1985, the Joint Venture informed Senator Evans, then Minister for Resources and Energy, that it disagreed with the proposed declaration of Stage 3 and with his Department's proposal to allow mining under joint Commonwealth/Territory control pursuant to a plan of management. In September 1985, the Territory Aboriginal Sacred Sites Protection Authority ("the Sacred Sites Authority") informed the Joint Venture that a line of sacred sites, then being surveyed, passed close to, and could include, Coronation Hill. In October 1985, Senator Evans advised the Joint Venture that, because the area subject to the application for an exploration licence, was located on Commonwealth land, the Lands Acquisition Act 1955, rather than the Mining Act 1980 (N.T.), applied. In November or December 1985, the Sacred Sites Authority advised the Joint Venture that an area including Coronation Hill had been registered as a sacred site and that all work must cease. In December 1985, Mr Uren, then Minister for Local Government and Administrative Services, wrote to the Joint Venture advising it that, until the Government had made a decision on the future of the South Alligator River valley region, it would not be appropriate for him to approve an application for an exploration licence. Mr Uren pointed out that if the area were to be declared a National Park, the grant of a mining lease or licence would require the approval of the Governor-General under s.10(2) of the National Parks Act. In March 1986, representatives of the Joint Venture attended a meeting of the Senate Standing Committee on National Resources ("the Senate Committee"). In April 1986, Senator Evans indicated to the Joint Venturers his opposition to any development which would lead to a string of mines. Senator Evans said: "We are going for an exploration zone to check the potential of Stage 3, but your industry must understand that it can't get all the area it wants." On this occasion, a representative of the Joint Venture indicated to Senator Evans that it recognised that the Aboriginals had an interest in the region and that it was "prepared to do a deal with [them]". In May 1986, some members of the Senate Committee, including Senators Richardson and Townley, visited Coronation Hill. The Senators indicated to representatives of the Joint Venture that they would ensure that mining would be allowed. In July 1986, the Joint Venture submitted to the National Parks and Wildlife Service a plan of management for the Park, noting that although the plan recognised pre-existing mineral interests, no provision was made "for any additional interest to be acquired either for extra area or flow-on title for mining". Upon the conclusion of negotiations with the Sacred Sites Authority at about this time, the Joint Venture decided that the project should move from the exploration stage to the development stage. The drilling program was recommenced in August 1986. (e) The Joint Ministerial statement made on 14 September 1986 In September 1986, Mr Cohen, then Minister for Arts, Heritage and Environment, visited Coronation Hill. On 14 September 1986, Senator Evans and Mr Cohen issued a statement saying that no consideration was being given to permitting new uranium mining projects, either inside or outside existing national park boundaries, in the Kakadu/Alligator Rivers region. The statement went on to describe the region as enormously prospective, especially for gold and platinum, and canvassed various options in that respect. (f) The Joint Ministerial statement made on 16 September 1986 On 16 September, Senator Evans and Mr. Cohen issued a further statement to the effect that the Government had agreed that, with respect to the future of the Coronation Hill mineral lease, provision should be made for the exclusion of any appropriate mining lease area from any National Park extension; and that, in addition, the project "should be allowed to proceed subject to normal environmental, Aboriginal Heritage and related clearances". (g) Activities of the Joint Venture including its dealings with the Commonwealth and Territory Governments between September and December 1986 Following the 16 September statement, the Joint Venture decided to expend "considerable" moneys in grid drilling. On 18 September, the Joint Venture wrote to Senator Evans indicating a desire to resolve with the DRE details of the project, including (a) the amount of land needed (in the light of the circumstance that, whilst the mining leases on Coronation Hill would have been large enough to enable development of a mine, the treatment plant and areas needed for overburden storage and other activities could not be accommodated within their boundaries); and (b) the necessary legislative arrangements and requirements that might have to be satisfied, before mining development could occur. On 1 October 1986, the Joint Venture resubmitted the previous exploration licence application to the Commonwealth and Territory Governments and made a new application for an area of 30 blocks. On 5 December 1986, the Joint Venture wrote to Senator Evans expressing concern at statements made by Mr Cohen in his Second Reading Speech introducing amendments to the National Park Act. An assurance was sought that existing tenements and applications would not be detrimentally affected without proper compensation. In a letter to the Joint Venture dated 12 December, Senator Evans said that the Joint Venture need have no fears of being made to relinquish its existing rights. (h) The Joint Ministerial statement made on 16 December 1986 By their joint statement made on 16 December, Senator Evans and Mr. Cohen announced that the Government had agreed to the detailed arrangements for the Stage 3 extension. Additionally, they confirmed that, subject to strict environmental, Aboriginal, heritage and related standards, provision would be made for the exclusion of an appropriate mining lease area from the Park for the Coronation Hill project. (i) Activities of the Joint Venture and its dealings with the Commonwealth Government between January and March 1987 In a letter written in January 1987, the Joint Venture made an application to the Commonwealth Department of Local Government and Administrative Services ("DAS") (as part of its responsibilities in the administration of s.70 of the Self-Government Act) for a "mining title" to cover the proposed project area. (Section 70, which is important for present purposes, and which came into effect on 22 June 1978, relevantly provides as follows: "70(1) The Minister may, from time to time, recommend to the Governor-General that any interest in land vested or to be vested in the Territory by sub-section 69(2) (including an interest less than, or subsidiary to, such an interest) be acquired from the Territory by the Commonwealth under this section. (2) The Governor-General may, on the recommendation of the Minister under sub-section (1), authorise the acquisition of the interest for a public purpose approved by the Governor-General. (3) The Minister may cause to be published in the Gazette notice of the authorisation by the Governor-General and, in the notice, declare that the interest is acquired under this section for the public purpose approved by the Governor-General. (4) Upon publication of the notice in the Gazette or immediately after the commencement of section 69, whichever is the later, the interest to which the notice relates is, by force of this section - (a)vested in the Commonwealth; and (b)freed and discharged from any restriction, dedication or reservation made by or under any enactment (not being an interest to which sub-section (6) applies), to the intent that the legal estate in the interest, and all rights and powers incident to that estate or conferred by the Lands Acquisition Act 1989 in relation to that estate, are vested in the Commonwealth. (5) An interest that may be acquired under this section may be an interest that did not previously exist as such. (6) Upon the acquisition of an interest by the Commonwealth under this section, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory." (Emphasis added) By s.70(11) (which was added in 1982) it is provided that where s.70(4) has effect in relation to an interest in land, that subsection has the like effect in relation to any interest vested in the Territory by s.69(4) in respect of minerals in or on that land. By s.70(12), the section has effect despite anything contained in the Lands Acquisition Act. By s.69(2) it is relevantly provided that all interests of the Commonwealth in land in the Territory are vested in the Territory on the commencing date (1 July 1978). By s.69(3), all interests in land in the Territory held from the Commonwealth immediately before the commencing date are held from the Territory on and after that date on the same terms and conditions as those on which they were held from the Commonwealth. By s.69(4), all interests of the Commonwealth in respect of minerals in the Territory are vested in the Territory on the commencement date.) DAS responded to the Joint Venture by a letter written in February 1987, stating that access would have to be exercised under an agreement with the Commonwealth and that others, including DRE and the Territory Mines Department, would need to be involved. Throughout this period, the Joint Venture continued its drilling operations. In March 1987, the Joint Venture expressed concern to the DRE about some aspects of the proposed changes to the National Parks Act which could retard, or even halt, mineral exploration in the "Conservation Zone". In a letter to the Joint Venture dated 17 March, an officer of the DRE said: "I would stress that it is not the intention of these amendments to remove existing lease protections except to the extent necessary to enable appropriate environmental conditions to be applied, following completion of the environmental assessment. It is also not intended that exploration on existing leases be held up by these procedures which will take effect at the time exploration licences are granted in respect of new interests in the Conservation Zone and then only after prior consultation with lease holders. The proposed extension of regulation-making powers under the Parks Act to prohibit operations for the recovery of minerals is intended as a legal sanction for use only as a last resort if a company refuses to accept additional terms and conditions which may be required as a result of an environmental assessment." (j) Sale of BHP Mineral's gold interests to Newcrest in March 1987 On 18 March 1987, BHP Gold (Newcrest) agreed to purchase BHP Minerals' gold-mining properties, including Coronation Hill. A transfer was executed in May 1987 and approved by the Territory Government in June 1987. No approval was sought from, or granted by, the Commonwealth. (k) Designation, in April 1987, of BHP Minerals as "proponent" in accordance with the provisions of the Environment Protection (Impact of Proposals) Act 1974 In April 1987, Mr. Cohen informed the Joint Venture that DAS had made this designation in respect of the proposal to develop and mine Coronation Hill. (l) The creation of Stage 3 and of the Conservation Zone in June 1987 This was done, in the first instance, by proclamation under s.8A(2) of the National Parks Act on 12 June 1987. On 25 June, the DRE informed the Joint Venture that it was the Commonwealth's intention that the Territory be responsible for the day-to-day administration of the exploration regime. The allocation of exploration rights would be determined in consultation with the Territory. On 30 June, the Conservation Zone was re-proclaimed. On 10 July, the Joint Venture sought from the DRE the authority to carry out exploration drilling in specified areas outside the mineral leases and along the strike extensions of the known Coronation Hill mineral deposits. On 25 September 1987, the Joint Venture expressed its concern to the Prime Minister, Mr. Hawke, with respect to calls by the Australian Conservation Foundation ("the ACF") for the Government to reconsider its position on Coronation Hill. The Prime Minister responded on 9 October, assuring the Joint Venture that there had been no change in Government policy on the Conservation Zone concept or in relation to Coronation Hill, although the Government had undertaken to consult various interests, including the ACF, about possible boundary changes. (m) Visit by Senators Richardson and Collins to Coronation Hill in January 1988 Before this visit, the Joint Venture provided Senator Richardson with a "status report" on the exploration and activities at the site. On the visit, Senator Richardson said to a representative of the Joint Venture that things would be alright and that he had been told that the leases were "legally O.K.", although he could "never really understand why [the Territory Government] couldn't find the lease documents". (n) The Joint Venture's application for access authority on 19 February 1988 In February 1988 members of the Wilderness Society, claiming that the Joint Venture's leases were invalid, occupied part of Coronation Hill. At this time, after referring to the "occupation", the Joint Venture wrote to Mr. West, then Minister for Administrative Services, expressing concern at the Government's delay in dealing with the application for access to an area outside the existing mineral leases. On 18 February, an officer of the DAS, after informing the Joint Venture that the licence for access would be issued shortly, said: "The Government has decided that to clarify the issue raised by the Wilderness Society, of the legality of your current leases, it will issue an access authority under the Lands Acquisition Act to allow the continuation of exploration on those leases." On 3 March, Mr. West issued two authorities under the Lands Acquisition Act 1955, one permitting exploration activities within the area covered by the old mineral leases; the other authorising access to areas within the Conservation Zone, but outside the tenement areas, for activities connected with the preparation of an environmental impact statement. Mr. West stated that these authorities would allow the Government "to make a fully informed decision on the Coronation Hill proposal". In the first authority, it was recited that uncertainty existed as to the validity of MLN 19 and MLN 751-2, as renewed, and that the Commonwealth desired that exploration continue over those areas. It was a condition of the authority that material be extracted for sampling purposes only. It was further provided that the Minister could cancel the authority on three months written notice and that the authority was not transferable. The authority was expressed to be "subject to any effect which MLN 751, MLN 752 and MLN 19 may have over the areas to which they may respectively apply". On 14 March 1988, BHP Gold executed a document, at the request of Mr. West, acknowledging that, in consideration of the issue of the two authorities, its rights in that connection were as set forth in the authorities. In a covering letter to Mr. West dated 15 March, the Joint Venture asserted that its Coronation Hill leases were valid and raised its concerns with the bureaucratic "regime" contemplated by the grant of the authorities. It was said that, although there would be two designated "authorities", at least 10 government departments would have an interest in the matter. Specific mention was made of the fact that the authorities did not provide for the application of the Territory Mines Safety Control Act 1976 (NT). At a meeting on the site held on 21 March, an officer of the Territory Department of Mines and Energy said that legal opinion was that leases 751, 752 and 19 had been legally renewed, but that the authorities had been issued to remove any doubt and that "legal matters ... not covered in the issued Authority ... would be automatically covered by the laws applying in the Northern Territory". By letter dated 24 March, Mr. West informed the Joint Venture, in response to its 15 March letter, that - "[He had been] advised that Northern Territory laws are, generally speaking, capable of application in Commonwealth owned areas in the Territory subject to certain exceptions such as the existence of inconsistent Commonwealth legislation. In this context, the Mines Safety Control Act will therefore continue to apply except to the extent to which it comes within one of these exceptions." On 28 April 1988, pursuant to the authority issued on 3 March, the Secretary of the DAS appointed the Territory Director of Mines as the "designated authority" for certain purposes; the Director, National Parks and Wildlife, was so appointed for other purposes. (o) The issue of additional access authorities in May, August and December 1988 and April 1989 On 25 May 1988, Mr. West issued to BHP Minerals, on similar terms to the previous instrument, an authority to explore the lands adjacent to the earlier authority. On 25 August 1988, Mr. West issued an access authority to BHP Gold under the Lands Acquisition Act for entry into the Conservation Zone for the purpose of preparing a public environmental report in relation to the proposed exploration drilling program at an adjacent area known as El Sherana. On 23 December 1988, access authorities were reissued to enable exploration at Coronation Hill to continue and to enable completion of the environmental impact statement by the Joint Venture. Further authorities were issued on 19 April 1989. (p) Application by BHP Gold in June 1988 for renewal of MLN 19 On 29 June 1988, BHP Gold made application to the Territory Department of Mines for the renewal of MLN 19 which, it said, was due to expire on 31 December 1988. A copy of the application was sent to DAS. In September 1988, an officer of DAS responded to the Joint Venture as follows: "...Mineral Lease 19 ... was originally issued by the Northern Territory Administration under the Northern Territory Mining Ordinance 1939. You state that you sent the original application to the Department of Mines and Energy, Darwin. However, by virtue of [s.]70 of the Northern Territory (Self Government) Act 1978 such a lease would be held from the Commonwealth and administered by the Minister responsible for this Department. The matter of renewal is being considered and I will be writing to you again." (q) The Government proposal, in October 1989, to declare the Conservation Zone part of the Park and the Proclamation under the National Parks Act in November 1989 By February 1989, consideration was given by the Commonwealth Government to a proposal to declare the Conservation Zone to be a part of the Park. On 18 May 1989, Mr. West wrote to the Joint Venture raising the possibility that the areas covered by the Joint Venture leases and applications might be included in the Park and that this would have the effect of prohibiting mining activities, including exploration. The views of the Joint Venture were sought. The Joint Venture responded in June 1989, expressing its understanding that the Government's decision would be confined to the issue of mineral exploration in the Conservation Zone, and would not affect the separate issue of mining at Coronation Hill. The Joint Venture asked Mr. West if this understanding was correct. There was no reply to suggest otherwise. On 5 October 1989, the Federal Cabinet decided that the area of the Conservation Zone be greatly reduced; and that the area excised from it become part of the Park. The remaining area of the Conservation Zone, from Coronation Hill to El Sherana, was to be the subject of concurrent inquiries under s.10(4) of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984, and under s.16 of the Resource Assessment Commission Act 1989. By proclamation dated 13 November 1989, made pursuant to s.8A(3) of the National Parks Act, amending the proclamation made in June 1987, lands including the lands comprised in MLN's 78 to 89, were vested in the Director. (Section 8A of that Act deals with the creation of "conservation zones". Sub-sections (1), (2) and (3) are as follows: "8A (1) The objects of this section are the protection and conservation of wildlife in, and the protection of the natural features of, an area of land or sea in the Region until a decision is made whether or not to declare the area to be a park or reserve. (2) The Governor-General may, by Proclamation, declare an area within the Region, not being an area within a park or reserve, to be a conservation zone. (3) Subject to subsection (5), the Governor-General may, by Proclamation, revoke or amend a Proclamation made under subsection (2)." By s.8A(8)(a), the power to make regulations in relation to Conservation Zones includes regulations "regulating or prohibiting operations for the recovery of minerals".) (r) The proclamation of the further extension to Stage 3 of the Park On 1 May 1991, the Resource Assessment Commission Report and the Aboriginal Heritage Report were presented to the Prime Minister and to the Minister for Aboriginal Affairs respectively. On 21 June 1991, the further extension to Stage 3 of the Park, covering MLN 19, 23 to 28 and 751 to 756, was proclaimed. THE ISSUES AT FIRST INSTANCE French J. noted that the following issues arose on the pleadings: (1) The original grant of the leases It was common ground, with the exception of MLN 24, that, prior to 1 July 1978, BHP Minerals had legal title to the mining leases. The Commonwealth contended that MLN 24 expired on 31 December 1977. (2) The renewals and transfers of the leases The renewals, and the transfers of the leases to Newcrest on 20 May 1987, were put in issue by the Commonwealth. It claimed that (a) by a notice under s.70 of the Self Government Act, the Commonwealth acquired the lands comprised in the leases as from 1 July 1978 for the purposes of a National Park; (b) by s.70(6), the leases were thereafter held from the Commonwealth on the same terms and conditions on which they were previously held from the Territory; under those terms, none of the leases could be transferred without the written consent of the Commonwealth or the Territory Administrator, yet no consent to the transfers had been given; (c) MLN's 19, 23 to 25, 28 and 751 to 756 had not been renewed; alternatively, the purported renewals and transfers MLN's 25 to 28 and 751 to 756 were not effected with the advice of the relevant Commonwealth Minister and were, therefore, invalid; and (d) the renewal of MLN 19, which was in a Conservation Zone proclaimed on 5 June 1987 under the National Parks Act, was prohibited except with the prior consent of the Commonwealth Minister, and that such consent had not been given. In their reply, Newcrest and BHP Minerals said that the acquisition, if valid, did not vest in the Commonwealth any interest in the minerals and did not have the effect that the leases were thereafter held from the Commonwealth. (3) The purported vesting of the lands comprising the leases in the Director under the National Parks Act Newcrest and BHP Minerals claimed that the vesting of these titles in the Director by the proclamations dated 13 November 1989 and 21 June 1991 under the National Parks Act purported to be freed of Newcrest's mining rights. Newcrest and BHP Minerals further claimed that the statutes under which the proclamations were made, and the proclamations themselves, were invalid as being acquisitions on other than just terms, and otherwise beyond Commonwealth constitutional power, by reason of the provisions of s.122 of the Constitution and of s.50(2) of the Self-Government Act. (Section 50 of the Self-Government Act provides: "50(1) The power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms. (2) Subject to section 70, the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which paragraph 51(xxxi) of the Constitution would apply, shall not be made otherwise than on just terms.") The Commonwealth claimed that by s.7(7) of the National Parks Act, its interest in the proclaimed land, save for any minerals, was vested in the Director. It denied that the land had vested in the Commonwealth subject to Newcrest's mining rights. It further denied that either Newcrest or BHP Minerals had any interest in the mining leases and further denied their standing to bring the proceedings. (Section 7 of the National Parks Act deals with parks established by the Governor-General. Relevantly, sub-s.(7) of s.7 reads: "(7) Upon the declaration of a park..., any interest held by the Commonwealth in respect of the land (including...any subsoil) within the park, but not in respect of any minerals, becomes, by force of this subsection, vested in the Director.") (4) Estoppel and related issues In their reply, Newcrest and BHP Minerals pleaded estoppel, waiver and election on the part of the Commonwealth. They said that (a) by its conduct, the Commonwealth represented to Newcrest, and to members of the Joint Venture, that (i) Newcrest held the mining leases; (ii) the leases were extant; and (iii) Newcrest could continue to exercise rights conferred by the leases upon the performance of environmental, ministerial and regulatory requirements; and (b) the Commonwealth induced Newcrest and the Joint Venture to conduct exploration and mining operations and incur significant costs in that connection. By its rejoinder, the Commonwealth said that (a) Newcrest and BHP Minerals at all times acted on their own legal advice as to the validity of the leases; and (b) the Ministers and officers of the Commonwealth held a bona fide belief that uncertainty existed as to the validity of the leases and made this belief known to Newcrest. THE REASONING AT FIRST INSTANCE The reasoning of French J. may be summarised as follows: (1) The mining leases and Self-Government Section 70 of the Self-Government Act authorised the acquisition, by and for the purposes of the Commonwealth, of interests in land "on terms which will exclude at least some if not all aspects of regulation under Territory law". Although the leases were, as a result of the notice of acquisition, held from the Commonwealth by virtue of s.70(6), they were held on the same terms and conditions as those on which they were held from the Territory. Therefore, in the absence of enabling legislation or an executive agreement, the Territory could not renew the leases nor could the Northern Territory approve their transfer (at 410-1). Despite the fact that no formal leases were executed, the parties proceeded on the assumption that the form of lease in the Mining Regulations under the Mining Ordinance 1939 (N.T.) applied (at 415). Although that form of lease contained no renewal provision, ss.42 and 49 contained a statutory right of renewal. This right, although statutory, was "picked up" by by the terms of s.70(6) which were "intended to leave the holders of ... interests (in the Park land) in no worse position than they had enjoyed prior to the acquisition" (at 416). The statutory form of lease also contained a covenant against transfer without the prior written approval of the Administrator. The publication of the s.70 notice had the effect that the mining leases were held from the Commonwealth on condition that no interest in the lease could be dealt with except with the consent in writing of the Commonwealth (at 416). (2) The transfers of the leases The Commonwealth proceeded on the basis that the transfers from BHP Minerals to BHP Gold on 1 June 1987 were valid, so that the Commonwealth was now precluded from asserting to the contrary (at 417-418). (3) The exercise of the rights of renewal of the leases A right of renewal had been preserved by virtue of s.70 of the Self-Government Act; that right of renewal could be exercised after the expiry of the relevant term (at 420). Save in the case of MLN 19, the renewal right had been validly exercised since (a) although no Commonwealth officer gave express consent to the renewal, this was not necessary (at 420); and (b) although the lessee had to exercise the renewal right, it was not essential that written notice be given to the Commonwealth: "The assertion of the right and the awareness on the part of the Commonwealth of that assertion would, in the statutory setting of this case, be sufficient to initiate the renewal without further executive act on the part of the Commonwealth." (at 420) Until about 1987, the Commonwealth left formal aspects of the administration of mining leases, then held from the Commonwealth under the s.70 notice, to the Territory (at 420). In this context, a notice of renewal given to the Territory "amounted to" notice to the Commonwealth. Sufficient notice of intention to renew had been given to the Territory and thus to the Commonwealth. Save for the case of MLN 19, it followed that the leases had been validly renewed. MLN 19 was in the Conservation Zone created by the proclamation dated 30 June 1987 made under s.8A(2) of the National Parks Act. By s.8B(1)(b) of that Act, it is provided that where land lies within, inter alia, a Conservation Zone, notwithstanding anything to the contrary in any Commonwealth State or Territory law, any interest in respect of the land or in respect of any minerals on that land held immediately before that land was within the Zone by any person (other than the Commonwealth or the Director) shall not be renewed, except with the consent in writing of the Minister. No such consent had been sought or given (at 422). The Commonwealth was not estopped, or otherwise precluded, from denying the validity of MLN 19: "... the content of the letters, meetings and conversations otherwise relied upon related overwhelming[ly] to the probability that the Joint Venture would be permitted to mine on Coronation Hill. Whether or not mining would be permitted did not depend upon the validity of the leases, but ultimately upon the attitude of the relevant Ministers to the contending political and public interest considerations involved in the case. As early as 1985 it was apparent that the Joint Venturers did not harbour any illusion about the importance that the yet to be resolved political process could have for the future of mining on Coronation Hill." (at 423) (4) Acquisition and compensation The questions arising in relation to s.51(xxxi) and s.122 of the Constitution were reserved for consideration by the High Court. One of the claims made by Newcrest and BHP Minerals is that the proclamations in November 1989 and June 1991 effected acquisitions of land vested in the Commonwealth and purported, by virtue of ss.8B, 8D, 7 and 10 of the National Parks Act, to vest them in the Director free of Newcrest's interests. Newcrest and BHP Minerals claimed that the relevant provisions of the National Parks Act and the proclamations were invalid by reason of the application of s.51(xxxi) and s.122 of the Constitution and the "just terms" provision of the Self-Government Act (s.50(2)). Although the application of s.50(2) was not, in terms, reserved by the High Court order, the Federal Court should decline to deal with it, since it raised no question of fact and, further, was "central to the issues reserved" (at 424-5). THE CONCLUSIONS EXPRESSED AT FIRST INSTANCE As has been mentioned, French J. posed and answered a series of questions by way of conclusion (at 425-7) to the following effect: (1) The notice of acquisition dated 29 June 1978 vested an interest in the minerals in the Commonwealth. The effect of the notice was that the mining leases were held from the Commonwealth and were no longer derived (in terms of their source) from the Mining Ordinance 1939 (NT). However, the interest vested in the Commonwealth was "subject to the rights enjoyed by the leaseholders under the mining leases and mining legislation of the ... Territory" (at 425). (2) It was a condition of each lease that no interest in the lease could be dealt with except with the consent in writing of the Commonwealth, although the Commonwealth could waive that requirement. The leases were no longer transferable under the laws of the Territory, but, notwithstanding that neither the Commonwealth nor the Territory gave consent, the Commonwealth was precluded from asserting that the transfers were ineffective. (3) The renewals and transfers were valid, save for the purported renewal of MLN 19. In respect of MLN 19, the Commonwealth was not precluded from disputing its validity by reason of statements of a "political" character made about the future of mining at Coronation Hill. (4) The questions of the impact of the proclamations of 5 June 1987 and 13 November 1989, and of the provisions of the National Parks Act, were reserved for the High Court. THE COMMONWEALTH'S APPEAL In their notice of appeal, the Commonwealth and the Director contend that the primary Judge erred in making the following findings: (1) That the right to renew a mining lease under ss.42 and 49 of the Mining Ordinance was "picked up" by s.70(6) of the Self-Government Act. (2) That this right was capable of being exercised after the expiration of the term of the lease. (3) That renewal could be effected by the lessee giving, to the knowledge of the Commonwealth, notice to the Territory Administration. (4) That between 1978 and 1987 (or 1988), the Commonwealth left the administration of the mining leases to the Territory and acquiesced in the Territory's decisions. (5) That notice to the Territory of renewal amounted to notice to the Commonwealth. (6) That MLN's 23-8 and 751-6 were validly renewed. (7) That the proclamations under the National Parks Act did not constitute a resumption of the surface of the land demised for a public purpose within the meaning of that provision in the leases. (8) That the leases were validly transferred. The Commonwealth now seeks declarations: (a) That MLN 19 expired on 31 December 1988, MLN 23 on 31 December 1978, MLN 24 on 31 December 1977 and MLN's 25-8 and 751-6 expired on 31 December 1980. (b) That the interests of the lessees were extinguished in accordance with the provisions of the leases upon the making of the proclamations under s.7(8) of the National Parks Act. NEWCREST'S CROSS-APPEAL In their cross-appeal, Newcrest and BHP Minerals contend that the trial Judge erred in finding that application for consent to the renewal of MLN 19 was not made as required by s.8B(1)(b) of the National Parks Act; that MLN 19 was not validly renewed; that compensation was not payable under s.8B(2) of the National Parks Act; and that the Commonwealth was not precluded from denying the validity of MLN 19. Newcrest and BHP Minerals also contend that French J. should have ruled upon the issues of validity raised in reliance upon s.50(2) of the Self-Government Act. The cross-appellants now seek, inter alia, these declarations: (1) That, subject to the operation of the proclamations under the National Parks Act, Newcrest is presently entitled to exercise all rights granted by MLN 19. (2) (Alternatively) That Newcrest is entitled to compensation under s.8B(2) of the National Parks Act. (3) (Further alternatively) That the proclamations in November 1989 and June 1991 effected an acquisition of the property, being the mining leases, within s.50(2) of the Self-Government Act. NEWCREST'S NOTICE OF CONTENTION Newcrest and BHP Minerals now contend that the following conclusions at first instance were erroneous: (1) That a reservation to the Territory of a power to renew or approve the disposition of interests held from the Commonwealth would be inconsistent with the substance and purpose of s.70 of the Self-Government Act. (2) That after the publication on 29 June 1978 of the notice under s.70 of the Self-Government Act, the mining leases were thereafter held from the Commonwealth; and that the lessees' interests derived from the fee simple acquired by the Commonwealth within s.70(6). (3) That ss.6 and 57 of the Self-Government Act were qualified by the operation of ss.69 and 70 of that Act. (4) That the rights and obligations of the grantee of the mining leases now reposed in the Commonwealth and are now to be exercised and discharged by the Commonwealth, and not by the Territory. (5) That after the 1978 acquisition notice, the Territory was not capable of substituting new terms in the leases and the leases were no longer transferable under the laws of the Territory. (6) That the grant by the Commonwealth of the access authorities did not constitute a consent to the transfer of a lease although predicated on its validity. (7) That the Commonwealth did not expressly consent to renewal of the leases by reference to the entitlements derived from ss.42 and 49 of the Mining Ordinance. (8) That the leases were not renewed by the issue of authorities under the Lands Acquisition Act. (9) That the Commonwealth did not represent to the respondents that the leases were valid. (10) That the respondents did not act to their detriment on the strength of representations or assumptions about the validity of the leases. (11) That there was not, under the Self-Government Act and regulations, a delegation of executive authority by the Commonwealth to the Territory in respect of "mining minerals". (12) That s.70 of the Self-Government Act prevents interests, which were granted under Territory law before self-government, from being renewed or transferred under Territory laws. THE COMMONWEALTH'S NOTICE OF CROSS CONTENTION On the cross-appeal, the Commonwealth and the Director contend that French J. should have held that MLN 19 was not validly renewed and expired on 31 December 1988. They further contend that, if the trial Judge erred in not deciding that s.70 of the Self-Government Act did not prevent the leases being renewed or transferred under Territory law, then his Honour should have held that: (a) By reason of the limitation on executive authority under the Self-Government Act and regulations, the purported renewal of MLN's 23 and 24 on 28 November 1978 was beyond the Territory's executive authority. (b) By reason of s.7A(1) of the Mining Act 1939 (N.T.) (inserted in 1979), the purported renewals of MLN's 25-8 and 751-6 on 1 January 1981 were invalid in the absence of the advice of the Commonwealth Minister under s.41 of the Atomic Energy Act. (c) By reason of ss.173 and 175(1) of the Mining Act 1980 (N.T.), the purported transfers of MLN's 23-8, 78-89 and 751-6 on 20 May 1987 were invalid in the absence of the advice of the Commonwealth Minister under s.41 of the Atomic Energy Act. The Commonwealth and the Director next contend that, if his Honour erred in not determining whether the provisions of, and proclamations under, the National Parks Act constituted an "acquisition" of the leases within s.50(2) of the Self-Government Act, it should have been held that there was no such "acquisition"; and that, in any event, the operation of s.50(2) here was excluded by the provisions of s.7 of the National Parks Act. Finally, the appellants contend that French J. should not have found that on 18 November 1955, the Territory Administrator approved a variation of MLN 19 to permit the mining of uranium ores. CONCLUSIONS ON THE APPEAL AND CROSS-APPEAL It will be convenient to consider the appeal and the cross-appeal together. Because the position of some of the leases differs from others, it is proposed to consider the leases in groups and to deal with them stage by stage at the relevant points of time. MLN 19 (a) Introductory As has been seen, this lease was granted to the original lessees on 22 July 1947, initially for a term of 21 years; its last expiry date was 31 December 1988; and its last purported renewal by the Territory, on 3 August 1989, was for a term due to expire on 31 December 2009. The original application was for a "mineral lease of 20 acres ... for the purpose of mining for silver lead". The lease was varied in 1953 to permit the mining of copper and, in 1955, to permit the mining of copper and uranium ores. (The Mineral (Acquisition) Ordinance 1953 (N.T.) (the validity of which was upheld in Kean v Commonwealth (1963) 5 FLR 432 and Milirrpum v Nabalco Pty. Ltd. (1971) 17 FLR 141) acquired and vested all minerals on or below the surface of any land in the Territory in the Crown in right of the Commonwealth.) It was common ground that, although no formal lease document was executed (and this is immaterial - see O'Keefe v Williams (1910) 11 CLR 171 at 190), BHP Minerals had legal title to this lease prior to 1 July 1978. Implicit in this is the acceptance by the Commonwealth of the validity of the renewal and transfers before that date; but the Commonwealth put the transfer and renewal, in 1987 and 1988, respectively, in issue. (b) BHP minerals' rights as lessee in June 1978 (i.e. immediately before the grant of self-government) It will be convenient to consider the position immediately before self-government and then to turn to the impact of the grant of self-government upon the relationship between the relevant parties. By s.39 of the Mining Ordinance, the Administrator may, subject to the Ordinance and the regulations, grant to any person a lease of any Crown land for the purposes, inter alia, of mining for gold. (By s.7, "Crown land" was defined, subject to exceptions presently immaterial, to mean "all land of the Crown or of the Commonwealth"). By s.41, the area of any land comprised in such a lease shall not exceed 20 acres. By s.42, the term of the lease was not to exceed 21 years from the first of January next preceding the approval thereof, "but every lessee shall at the expiration of his lease, have a right to renew the lease for further periods of twenty-one years, subject to the Ordinances and regulations relating to gold-mining leases in force at the time of renewal". By s.43, provision is made for the payment of rent and of royalties calculated by reference to, inter alia, the proceeds of sale of all substances obtained from the land. By s.44, after the approval of an application for a gold-mining lease, the lessee shall have the exclusive right of mining for gold and other minerals in and on the land. Provisions similar to ss.39, 41, 42 and 43 were enacted in the case of mineral leases (ss.45, 47, 49 and 50 respectively). The statutory form of gold-mining lease under s.39 of the Ordinance was Lease Form 1 prescribed by the Mining Regulations. After reciting that power was given to the Administrator by s.39 to grant leases of land for gold-mining thereon "upon the terms and conditions set forth in the said Ordinance", it was provided that the Administrator granted and demised to the lessee the subject lands and all mines or deposits of gold in, on or under the lands, excepting and reserving out of the demise all such portions of the surface of the lands as were then lawfully occupied by persons other than the lessee, or any portion thereof which was then used for any public works or buildings, to hold the lands and mine for the full term of 21 years for the purpose of mining for gold thereon in accordance with the provisions of the Ordinance. It was declared that the lease was subject to performance by the lessee of the following covenants and conditions: (1) The lessee was to pay the rent and royalty thereby reserved. (2) The lessee was to use and work the lands continuously and bona fide exclusively for the purpose for which they were demised. (3) The lessee was to observe the provisions of the Ordinance and other applicable legislation. (4) The lessee was not to assign, underlet, or part with possession of the lands or the mine without the previous consent in writing of the Administrator. Provision was made for the exercise, by the Administrator, of a power of forfeiture for breach of the covenants or conditions. The lease was expressed to be subject to the following proviso, which is now relied on by the Commonwealth: "Provided further that we may at any time, without compensation to the lessee, resume possession of any portion of the surface of the land[s] ... for the construction thereon of roads, tramways or railways, including all necessary approaches thereto, or for any other public purpose whatsoever..." It was further provided in the lease that all mineral oil on or below the surface of the land was reserved to the Crown. The statutory form of mineral lease under s.45, Lease Form No. 3 prescribed by the Regulations, was the same as Form No. 1. Notwithstanding that it appears that no formal lease document exists, it is clear, and the parties to the proceedings accept, that the relationship between the Crown as lessor and BHP Minerals as lessee was governed by the relevant provisions of the Ordinance and the Regulations, including the statutory form of lease. An incident of that relationship was the lessee's right of renewal conferred by s.42 or s.49 of the Ordinance. Although not every kind of mining lease is to be treated as strictly speaking a "lease" in the common law sense (see, e.g., Phillip McNamara, "The Application of State Mining and Petroleum Legislation to Commonwealth Places within the Boundaries of a State" (1983) AMPLA Yearbook 1 at 26), the provisions of the Ordinance and the Regulations already mentioned contain, in my view, sufficient indication of an intention to confer a grant of a right of exclusive possession of the land and thus support the conclusion that a common law lease of the land, rather than, for instance, a mere licence, was intended (see Goldsworthy Mining Ltd v Commissioner of Taxation (1973) 128 CLR 199 at 212). It should be borne in mind, in this connection, that mining or mineral leases of the present kind have special characteristics. In Wade v New South Wales Rutile Mining Co. Pty. Ltd. (1970) 121 CLR 177, Windeyer J. said (at 192-3): "A mining lease of this kind is really a sale by the Crown of minerals reserved to the Crown to be taken by the lessee at a price payable over a period of years as royalties. The terms `mining lease' or `mineral lease', used in that way, have been long known in the law. In Gowan v Christie ... Lord Cairns said: `What we call a mineral lease is really, when properly considered, a sale out and out of a portion of land. It is liberty given to a particular individual, for a specific length of time, to go into and under the land, and to get certain things there if he can find them, and to take them away, just as if he had bought so much of the soil.' And Collins M.R. in In re Adam's Settled Estate ..., said that a mining lease `is really in its essence rather a sale at a price payable by instalments than a demise properly so called'. It is thus in accordance with usage to describe a right given by the Crown to extract minerals belonging to the Crown as a lease - a term used in the statutes since 1894. The actual form of a mining lease under Pt IV, as shown in sched. 43C of the Mining Regulations, is `a grant and demise' by the Sovereign of a defined parcel of land `for the purpose of mining for working and winning' a specified mineral." Windeyer J. went on to say (at 193): A mining lease under Pt IV involves no departure from the general theory of our law. It is a means by which the Crown disposes of minerals the property in which it has retained." A statutory instrument of the kind now under consideration operated, in my view, to adopt the language of Kitto J. in Commissioner of Stamp Duties (N.S.W.) v Henry (1964) 114 CLR 322 at 331, "as a lease only, not as a lease and [separately] as a conveyance of a profit a prendre". Kitto J. went on to say (at 331): "That the Act should follow this course is only what might be expected, for the law has not been accustomed to regard the right of a lessee to take minerals from a mine as other than an incident of the lease: it regards the taking of the minerals as part and parcel of the use which the grant entitles the lessee to have without being guilty of waste." As French J. noted (at 411), such a lease was "a chattel real" (see Williams v Robinson [1891] 12 LR (NSW) Eq. 34 at 40; Adamson v Hayes (1973) 130 CLR 276 at 301). Moreover, as Stephen J. observed in Adamson (at 313-4): "...once the Crown grants rights over Crown land the grantee may be said to hold land of a particular tenure granted by the Crown, as is the case of a Crown lessee ... ." Finally, in The Commonwealth v Maddalozzo (1980) 54 ALJR 289, it was held that the holder of a private mining lease under the Ordinance held, if not an interest in the land, at least a right over it. It follows, in my view, that at the time self-government was granted, BHP Minerals was the holder of the abovementioned proprietary rights (a) over the area of land and (b) in the minerals in question. (c) BHP minerals' rights as lessee upon the grant of self-government (i.e. as at 1 July 1978) The Self-Government Act recited that the Parliament considered it desirable, by reason of the political and economic development of the Territory, to confer self-government on the Territory, and for that purpose to provide, amongst other things, for the establishment of separate political, representative and administrative institutions in the Territory and to give the Territory control over its own Treasury. Part II of the Self Government Act dealt with the establishment of the new body politic. By s.5, the Territory was established "as a body politic under the Crown". Part III of the Act dealt with the Legislative Assembly. By s.6, subject to the Act, the Assembly has power, with the assent of the Administrator or the Governor-General, to make laws for the peace, order and good government of the Territory. By s.9(1), the Governor-General may, within six months after the Administrator's assent to a proposed law, disallow the law or part of the law. Part IV of the Act dealt with the Administration. By s.31, the duties, powers, functions and authorities of the Administrator, the Executive Council and the Ministers of the Territory extend to the execution and maintenance of the Act and the laws of the Territory and to the exercise of the prerogatives of the Crown so far as they relate to those duties, powers, functions and authorities. By s.32(1), the Administrator shall be appointed by the Governor-General by Commission under the seal of Australia and shall hold office during the pleasure of the Governor-General. By s.32(2), the Administrator is charged with the duty of administering the government of the Territory. By s.32(3), the Administrator shall, subject to the Act, exercise and perform his powers and functions in accordance with (1) the tenor of his Commission; and (2) such instructions as are given to him by the Minister. Part VI of the Act dealt with "miscellaneous" matters. As already noted, by s.50(1), the power of the Assembly to make laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms. By s.50(2), subject to s.70, the acquisition of any property in the Territory which, if the property were in a State, would be an acquisition to which para.51(xxxi) of the Constitution would apply, shall not be made otherwise than on just terms. Part VII of the Act contained some transitional provisions. By s.57(1), subject to the Act, on and after the commencing day (1 July 1978), all existing laws of the Territory have the same operation as they would have had if the Act had not been enacted, subject to alteration or repeal by or under "enactment". (By s.4(1) "enactment" means (a) a law passed by the Assembly and assented to under the Act; or (b) an Ordinance made under the Northern Territory (Administration) Act 1910 and continued in force by the Self-Government Act; (by s.4U of the Administration Act, which was repealed by the Self-Government Act, the Legislative Council, subject to that Act, could make ordinances for the peace, order and good government of the Territory.)). As has been mentioned, ss.69 and 70 of the Self-Government Act are of critical significance for present purposes and it will be necessary, shortly, to consider their operation in this context. However, their operation apart, it is clear, and the pleadings confirm this, that as at the time of the grant of self-government, BHP Minerals held legal title to MLN 19. In addition, as has been said, it was an incident of that title, in my opinion, that BHP Minerals held a statutory right to renew that lease when it expired on 31 December 1988. Reference has already been made to the provisions of ss.69 and 70. As we have seen by s.69(2), with some exceptions not here material, on 1 July 1978 all interests of the Commonwealth in land in the Territory were vested in the Territory. By s.69(3), all interests in land in the Territory held from the Commonwealth immediately prior to 1 July 1978 were thereafter held from the Territory "on the same terms and conditions" as those on which they were held from the Commonwealth. By s.69(4), all interests of the Commonwealth in respect of minerals (defined by s.69(1) to mean a naturally occurring substance, or mixture of substances, whether in a solid, liquid or gaseous state) were vested in the Territory on 1 July 1978. It will further be recalled that, by s.70 (which commenced on 22 June 1978, being the date of assent, the remainder of the Act commencing on 1 July 1978) the Minister (Commonwealth) may recommend to the Governor-General that any interest in land vested, or to be vested, in the Territory by s.69(2) (including a lesser or subsidiary interest) be acquired from the Territory (see s.70(1)). By s.70(2), the Governor-General may, on that recommendation, authorise the acquisition for an approved public purpose. By s.70(4), upon publication of the notice in the Gazette (which occurred here on 29 June 1978) or immediately after the commencement of s.69 (i.e. 1 July 1978), whichever is the later, the interest to which the notice relates is, by force of the section (a) vested in the Commonwealth and (b) freed and discharged from any restriction, dedication or reservation made by or under an enactment (not being an interest to which s.70(6) applies). By s.70(6), upon the acquisition of an interest by the Commonwealth under s.70, all interests that were held from the Territory immediately before the acquisition, being interests derived from the first-mentioned interest, are, by force of this section, held from the Commonwealth on the same terms and conditions as those on which they were held from the Territory. By s.70(9), the Commonwealth is not liable to pay to the Territory any compensation in respect of an acquisition made under this section. As has been noted, it is common ground that MLN 19, inter alia, was within the area of land acquired by the Commonwealth for a National Park under the notice published in the Gazette on 29 June 1978. It is said on behalf of the Commonwealth that by virtue of s.70(4) of the Self-Government Act, the fee simple interest in the lands the subject of the lease vested in the Commonwealth immediately after the commencement of s.69 of the Act on 1 July 1978. Then, the Commonwealth's argument runs, by dint of s.70(6), the mineral leases, which were interests "derived from" the fee simple, were thereafter held from the Commonwealth. On the other hand, Newcrest says that, even if valid, the acquisition of the land did not vest the mineral leases in the Commonwealth as lessor. As has been seen, both before French J. and before the Full Court, each side advanced arguments going to the status of the leases at the time of the grant of self-government which had a triple aspect. They were concerned with these three questions: (1) the operation of the general law; (2) questions of statutory construction, so far as concerned local or municipal law, being (a) the Territory mining legislation; (b) the Self-Government Act and (3) constitutional questions, being the operation of the just terms guarantee in s.51(xxxi), and questions arising under s.122 such as those recently considered by the High Court in Svikart v Stewart (1994) 125 ALR 554; in particular, (a) whether the relevant Territory legislation was beyond constitutional power; and (b) whether some of the Commonwealth legislation, for instance, the material provisions of the National Parks Act, was invalid because it contravened s.51(xxxi). Questions of the kind described in (1) and (2) above fall within the scope of that part of the matter that was remitted to this Court. But, in my opinion, questions of the kind mentioned in (3) above do not (cf. the position in, e.g., Re Australian Education Union; Ex parte Victoria (1994) 68 ALJR 618). The terms of the order made by Mason C.J. were to remit "[t]hat part of the case that comprises the issues in the case other than the question whether the proclamations made under [s.] 7(8) of the [National Parks Act] published in the Gazette on 12 June 1987 and 22 November 1989 and 24 June 1991 are invalid by [s.] 51(31) and [s.] 122 of the Constitution ...". There is implicit in the order, if not explicit, in my view, a reservation to the High Court of the determination of (a) the scope of the power conferred upon the Commonwealth Parliament by s.122 of the Constitution to legislate with respect to property acquired by the Commonwealth within a Territory, including property acquired under s.70 of the Self-Government Act and (b) the operation, if any, of s.51(xxxi) of the Constitution in that connection or in connection, with other relevant Commonwealth legislation, for instance, limits, if any, imposed by the National Parks Act on a right to renew a lease where that right is conferred by Territory law. There was, as has been said, remitted to this Court the central question of the true construction of s.70 of the Self-Government Act. There are several aspects to this; it will be convenient to deal with them in turn. (d) Did s.70(6) of the Self-Government Act apply only to interests in land other than interests in minerals? As has been seen, s.70(6) refers to the acquisition of "an interest". This is a reference to "any interest in land vested or to be vested in the Territory by [s.] 69(2) (including an interest less than, or subsidiary to, such an interest) ...". However, it will be recalled that the structure of s.69 was that, whereas s.69(2) dealt with interests in land, s.69(4) dealt with interests in minerals. It follows that, taken literally, s.69(2) and, in turn s.70(1) and s.70(6), did not apply to interests in minerals. That is, those interests were set aside for separate treatment. The question of one aspect of those interests was, as has been noted, addressed by the Parliament in 1982 when it added the following provision to s.70: "(11) Where subsection (4) has effect in relation to an interest in land, that subsection has the like effect in relation to any interest vested in the Territory by subsection 69(4) in respect of minerals in or on that land." But, prima facie at least, a statutory amendment should be construed as altering the meaning of a provision so that, generally, a prior legislative provision should not be construed in a way that would make the amendment unnecessary (see Grain Elevators Board (Vict.) v Dunmunkle Corporation (1946) 73 CLR 70 at 85-6; Rimmer v Nissen; Ex parte Nissen (1993) 113 ALR 502 at 507; Hunter Resources Ltd. v Melville (1988) 164 CLR 234 at 254-5; Downey v Trans Waste Pty. Ltd. (1991) 172 CLR 167 at 177; Interlego AG v Croner Trading Pty. Ltd. (1992) 39 FCR 348 at 382). Where, as here, the original provision (s.70(6) was clearly expressed and explicit in its operation, it is not appropriate to construe its meaning by reference to a subsequent provision such as s.70(11) which, in its terms, addresses s.70(4) and not s.70(6). It follows, in my opinion, that s.70(6) did not deal with interests in minerals, whether of the Commonwealth or of the Territory. But in the event that this view were wrong, I will proceed as if s.70(6) applied to interests in minerals. (e) In any event, did the grant of self-government and s.70, in particular, modify or extinguish the pre-existing rights of Crown lessees in minerals? At common law, "a mere change in sovereignty over a territory does not extinguish pre-existing rights and interests in land in that territory" (see State of Western Australia v Commonwealth (1995) 128 ALR 1 at 12). The Full High Court went on to say (at 12) that although an acquiring sovereign can extinguish such rights and interests in the course of the act of State acquiring the territory, the presumption in the case of the Crown is that no extinguishment is intended. In American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677, Mason J. said (at 682-3): "The general rule is that the courts will construe a statute in conformity with the common law and will not attribute to it an intention to alter common law principles unless such an intention is manifested according to the true construction of the statute. ... This rule certainly applies to the principles of the common law governing the creation and disposition of rights of property. Indeed, there is some ground for thinking that the general rule has added force in its application to common law principles respecting property rights." It follows, in my view, that both ss.69 and 70 should be construed in conformity with the common law presumption that no extinguishment or modification, at least of any substantial kind, was intended. It would further follow that if s.69 had merely provided for a vesting of interests in land, or minerals, in the Territory and if s.70 had merely provided for the vesting in the Commonwealth of interests in land, no private interests therein would have been extinguished. To the contrary, those interests would have survived intact. It then follows that to provide, as s.69(3) and s.70(6) do, that "interests [will be] ... held on the same terms and conditions [as previously]", is to do no more than to declare the position as it otherwise would have been. That is to say, the private interests were to survive the grant of self-government, but on no better, or worse, terms. That this should be the intention of the Parliament and the outcome, given the absence of any specific provision in the self-government legislation for just compensation for the extinguishment of such interests, notwithstanding the guarantee given by s.50 of that statute, is hardly surprising. It means no more than that these interests were to continue to subsist upon the terms and conditions that regulated their existence prior to the grant of self-government. It follows that I agree with French J. that (if it were necessary to do so) the lessee's rights were preserved or "picked up" by s.70(6). (f) Did the statutory right of renewal of a mining lease survive the grant of self-government? As has been said, this right was an incident of the relationship between the mining lessor (the Crown) and the lessee. It was a right inherent in the relationship in the sense explained, albeit in different statutory context, by Gibbs J. in Mercantile Credits Ltd. v Shell Co. of Australia Ltd. (1976) 136 CLR 326 at 345: "The right of renewal is so intimately connected with the term granted to the lessee, which it qualifies and defines, that it should be regarded as part of the estate or interest which the lessee obtains under the lease ..." To similar effect were the observations of Stephen J. (at 352): "[The right of renewal] is a right conferred by covenant which touches and concerns the land and runs with the land ...; it is an incident of the lease creating an interest in the land and forming a part of the lessee's interest in that land." It is true, as the Commonwealth submitted, that in that case the right of renewal was expressed in the lease document itself and that here the right is conferred by statute. But, in my view, as a matter of characterisation, a statutory right or obligation is just as much a term and condition upon which the mining lease is held as a provision to that effect set out in the statutory form of lease. Again, I agree with French J. that (if necessary) the statutory right of renewal was "picked up" by s.70(6). (g) Did the enactment of the Mining Act 1980 (N.T.) extinguish or modify the lessee's interest under MLN 19? The Mining Act commenced on 1 July 1982. It repealed the 1939 Ordinance but, by s.191(5) of the Act, it was provided that where a mining lease under the Ordinance was in force immediately before the commencement of the Act, the lease shall be deemed to be a mineral lease granted under the Act for the remainder of its term under the Ordinance. Section 68 of the Act deals with renewals as follows: "(1) A lessee may, at any time before 3 months before the expiration of a mineral lease or such later time, not being later than that expiration, as the Minister allows, apply to the Minister for the renewal or further renewal of the lease. ... (3) Where the Minister is satisfied that the lessee has, during the current period of the lease, complied with all the provisions of this Act and the conditions to which the lease is subject, he shall grant an application under this section for such term, not exceeding 25 years, and may make that grant subject to such conditions in addition to or varying those to which the lease is already subject, as he thinks fit. (4) The Minister shall not refuse to grant an application for the renewal of a mineral lease under this section except with the approval of the Administrator. (5) Where an application for the renewal of a mineral lease has been made in accordance with this section, the lease shall be deemed to continue in force until that renewal is granted or refused, as the case may be." It follows, in my opinion that, subject to any constitutional question of the kind considered by Sheppard J. and Wilcox J. in their obiter observations in Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd. (1987) 15 FCR 274 (at 282 and 297-8), but noting that constitutional issues were not remitted to this Court, I am of the opinion that MLN 19 was not extinguished by the 1980 Act. Rather, it was preserved by that legislation, although the lessee's right of renewal was modified in certain respects. Subject to constitutional questions, if any, that may arise, there is no reason to suppose that the Act did not operate validly and effectively so as to continue MLN 19 in force whilst at the same time modifying the lessee's statutory right of renewal. (h) Was the transfer of the leases (including MLN 19) to BHP Gold on 1 June 1987 valid? I agree with French J., for the reasons he gives at 416-8, that the transfers were valid. (It may be noted that the Commonwealth at one stage indicated that it proposed to abandon its appeal on this point and that, consequently, its submissions on this aspect of the appeal were really only formal, so that the Commonwealth's position on other aspects might be protected.) (i) Was MLN 19 renewed at the expiration of its term on 31 December 1988? Again, this question will be considered apart from any constitutional issue that may arise. As we have seen, BHP Gold applied for renewal on 29 June 1988. This was in accordance with the provisions of s.68(1) of the Mining Act 1982. There was no suggestion that the lessee had failed to comply with any condition of the Act or of the lease. It followed, in my opinion, that the lessee, Newcrest, was then entitled to a renewed lease and until that was granted, the provisions of s.68(5) of the Act applied with the consequence that the lease continued in force in the meantime. If necessary, the lessee could have approached a court of competent jurisdiction to enforce its right of renewal by obtaining an order against the Territory Minister in the nature of mandamus (see Phillip McNamara "Challenging the Exercise of Ministerial Discretion", 1984 AMPLA Yearbook, at 110-1). In fact, the Territory Administration formally renewed the lease on 3 August 1989. Given the history of the dealings between the parties, it could not, in my view, be said that at any stage Newcrest abandoned or waived its right to renew MLN 19. On the contrary, Newcrest at all times asserted that right, notwithstanding its entry into the equivocal holding arrangements (mentioned above) that had to be made pending the resolution of the present dispute. For this purpose, I accept the submission put on behalf of the Commonwealth that the terms of entry into the access authority made it plain that neither side's ultimate position should be prejudiced by their execution of those instruments. At the same time, the evolution of the dispute between the parties shows that it was always the intention of the respondents to undertake exploration and mining activities to the extent that was legally permissible. As the history of the development of the matter indicates, the position was complicated and confused by the grant of self-government and by the role of other parties with an interest in the area. But none of this, in my view, suggests that the respondents ever indicated an intention to forego their rights. (j) The significance, if any, of the absence of the Commonwealth's consent to the renewal of MLN 19 As we have seen, French J. held (at 421-2) that the purported renewal of this lease was invalid because it was in a Conservation Zone under the National Parks Act and the Commonwealth Minister had not consented to the renewal in accordance with the provisions of s.8B(1)(b) of the National Parks Act. However, Newcrest challenges the application of that legislation on constitutional grounds. Since that issue was not remitted, I express no opinion on it. (k) Relief to be granted in respect of MLN 19 Given the scope of the remitter, it is appropriate, in my opinion, for a declaration to be made by this Court that, subject to any question which arises (a) under the Constitution or (b) under any valid law of the Commonwealth, and for the purposes of the Mining Act 1980, (1) MLN 19 was in force on 31 December 1988 and (2) Newcrest was then entitled to a renewal of the lease in accordance with the provisions of that Act. MLN 23 This lease was granted on 6 May 1958, to expire on 31 December 1978. The Territory Administration renewed it, prior to its expiry, on 28 November 1978 for a term expiring on 31 December 1999. As a matter of Territory law at least, the lease was validly granted and renewed. It is thus appropriate, in my opinion, for a declaration to be made that, subject to any question which arises (1) under the Constitution or (2) under any valid law of the Commonwealth, and for the purposes of the Mining Act 1980, MLN 23 was in force on 1 July 1982, being the date of commencement of the Mining Act and was deemed by that Act to be in force, as a mineral lease, for a term expiring on 31 December 1999. It should be noted, in this connection, that it is not disputed that a proviso entitling the grantor to resume possession of any portion of the surface of the land, for some purposes, was a term or condition of the lease. However, the operation, if any, of this proviso in the present context by reason of the proclamations under the National Parks Act, itself raises a constitutional issue under s.51[xxxi] or s.122 not remitted to this Court. It may further be noted that I agree with French J. that the application, if any, of s.50 of the Self Government Act should not be dealt with on the remitter. MLN 24 This lease was granted on 11 October 1957, to expire on 31 December 1977. It was renewed by the Territory Administration on 28 November 1978 for a term to expire on 31 December 1998. As has been noted, under the Mining Ordinance Act 1939, every lessee "shall at the expiration of his lease, have a right to renew" but no mention of the manner of the exercise of the right was there made. This does not, however, derogate from the existence of the right, which may be exercised in any manner that is appropriate [see Downey v. Prior (1960) 103 CLR 353 at 362, 365-6]. Moreover an option may be validly exercised by conduct [see Gardner v. Blaxill (1960) 2 All ER 457]. French J. found [at 421] that the lessee made a formal application to the Territory Administration for renewal by letter dated 15 November 1978, some time after expiry of the lease on 31 December 1977. However, his Honour went on to find that in January 1978 the lessee had entered rent, which had been accepted, and continued in possession after 31 December 1977. French J. concluded [at 420] that these matters constituted a valid exercise of an intention to renew. On behalf of the Commonwealth, reliance is placed upon the decision of the Supreme Court of Tasmania in Central Mount Lyell Mining Co. v Westwood [1902] 2 TLR 111 (2 N and S 111) where a mining lease of land granted by the Minister having expired, the lessee more than one month thereafter sought to exercise a statutory right of renewal. In the meantime, although the lessee remained in occupation of the land, another party, unknown to the lessee, marked off the land and applied to the Minister for a lease. It was held that the statutory right could only be exercised if the provisions of the legislation, requiring renewal during the term or within a month after its expiration, were complied with. McIntyre J. said (at 114): "... [A]n application for renewal of a lease, although it need not as formerly be a calendar month before the expiration of the term, must be made before, or, at all events, at the expiration of the lease sought to be renewed. As between subject and subject, where the lease contains an option to the lessee to take a lease for a further term, but no time is specified within which the option is to be exercised, the person having the option may exercise it at any time while he remains tenant, though after the expiration of the term of years first created: ... . I am of opinion, however, that the continuance in possession by the company, after the expiration of its lease which was granted under and by virtue of a statutory authority, did not create a tenancy of any kind between the Crown and the lessee." Reliance is further placed by the Commonwealth upon Associated Minerals Pty Ltd v. N.S.W. Rutite Mining Company Pty Ltd (1961) 35 ALJR 296 where it was held, by a majority, that a dredging lease granted under the Mining Act 1906-1952 (NSW) could not be renewed after the term had expired. The determination of the question of the validity of the renewal in the present case must depend, as it did in Mount Lyell and Associated Minerals, upon the terms, properly construed, of the applicable legislation. So far as the general law is concerned, an option for renewal granted without express limitation of time for its exercise, is prima facie to be exercised during the currency of the lease, or at the latest, while the relationship of landlord and tenant continues between the parties [see Trustees Executors & Agency Co. Ltd v. Peters (1960) 102 CLR 537 at 552]. Much will depend upon the particular circumstances, as Buckland v. Papillon (1866) 2 L.R. 2 Ch. App. 67, shows. Lord Chelmsford L.C. there said [at 70]: "Upon the first point it was argued that the bankrupt had lost his right to demand a lease, in consequence of the lapse of time, and that the agreement was, in fact, for a lease for three years, with an option during that time to name a further term, and that, at the expiration of that term of three years, the right to demand a further lease was gone. Now, as to this, it must be observed that there was no limitation whatever of the time within which Bloxam was to exercise his option. If, during the course of three years, he had determined to have a lease for seven years, that would be from the date of the agreement, and he would only have it for the portion of time which remained to run. Undoubtedly, supposing that at the end of three years Bloxam had chosen to leave the place, that would have determined his option; but he continued in possession, and so became tenant from year to year, under the terms of the original agreement. I do not mean to include in those words the right to demand a lease, for that had nothing whatever to do with the tenancy from year to year; but I think that continuing in possession, with the sanction of the landlord, he was entitled to exercise his option. He had done nothing whatever to preclude him from demanding that lease at any time; and if the landlord wished to know upon what terms the tenant held, he might have called upon him to say whether he meant to have a lease or not. As the landlord did not choose to do so, it appears to me that the time was unlimited in which the tenant could demand a lease. As long as he continued tenant with the sanction of the landlord, so long he retained his option." See also Rider v. Ford (1923) 1 Ch. 541. Section 42 and 49 are silent on the question when the right to renew should be exercised. They simply provide that, at the expiration of the lease, the lessee should have a right to renew. Generally speaking, where no provision is made as to the time of exercise of such a right it should be exercised within a reasonable time [see Ballas v. Theopilos (1958) 98 CLR 193]. In assessing what is a reasonable time for this purpose, questions of fact and degree are involved and regard should be had to all the circumstances including the way in which the parties conducted themselves [see S & E Promotions Pty Ltd v. Tobin Brothers (1994) 122 ALR 637]. This is so notwithstanding that the present question is one of public administration rather than private contract [see Cudgen Rutile (No 2) v. Chalk (1975) AC 520]. In particular, it does not appear from the evidence that the Territory Administration, by any overt act or other unequivocal expression, indicated to the lessee that the lessee's statutory right to renewal was disputed [see Minister of Mines v. Harney (1901) AC 347]. There was, as the above history of these dealings shows, no suggestion of abandonment of any rights on the part of the lessee. To the contrary, as French J. found [at 419-420], in the relatively short period [8 1/2 months] that elapsed between the expiry of the lease and the making of the formal application for renewal, the lessee remained in possession. In those circumstances, I am not persuaded that we should interfere with his Honour's conclusion [at 420-1] that, in terms of the municipal law, at least, the right to renew was validly exercised. I would make a declaration in terms similar to that made in respect of MLN 23, noting that the lease expires on 31 December 1998. MLN 25 - 28 AND MLN 751 - 6 These leases were granted in 1960, to expire on 31 December 1980. They were extended by the Territory Administration until 31 December 1981 pursuant to application made on 16 December 1980. As a matter at least of municipal law, these renewals were valid, as French J. found [at 421]. I agree and would make declarations accordingly. MLN 78 - 89 These leases were granted in 1974 for a term to expire on 31 December 1994, so that no question of their renewal arose. I would make a declaration that under the municipal law, they were deemed to be in force under the Mining Act accordingly. ORDERS PROPOSED It follows that I would dismiss the appeal. I would allow the cross-appeal in part, varying the orders made by French J. in making the declarations previously mentioned. I would reserve all costs, but reserve liberty to apply in that connection after the High Court has dealt with the part of the proceedings that was not remitted to this Court. I certify that this and the preceding sixty-four (64) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont. Associate Dated: 5 June 1995 Counsel and Solicitors Mr. B.J. Shaw Q.C. with for Appellant and FirstMr. S.J. Gageler and and Second Cross- Mr. I.E. Davidson respondents instructed by Australian Government Solicitor Counsel and Solicitors Sir Maurice Byers Q.C. with for Respondent and First Mr. G.A. Flick S.C. and Second Cross-appellants instructed by Clayton Utz Place of hearing: Sydney Dates of hearing: 2, 3 and 4 March 1994 Judgment delivered: 5 June 1995