MINISTER FOR MINERAL RESOURCES v BRANTAG PTY LTD [1997] NSWCA 207

MINISTER FOR MINERAL RESOURCES v BRANTAG PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, STEIN JA and SHEPPARD AJA 29 August 1997, 20 November 1997

[1997] NSWCA 207

Mines and minerals - reservation of "all minerals" to Crown - whether included mineral sands of rutile, zircon, and ilmenite - meaning of "minerals". Crown grants - discussion of principles of construction - history of reservation of minerals in NSW.

Crown Lands Alienation Act 1861.

Since 1989 the respondent was the registered proprietor of two parcels of land at Port Stephens. The respondent commenced proceedings in the Equity Division seeking a declaration that it was the owner of any rutile, ilmenite and zircon present within the land; and seeking an order that the appellant account to it for royalties in respect of those minerals. Young J concluded that the three minerals were not reserved to the Crown in an "all minerals" reservation in Crown Grants issued in 1877 and 1879 and accordingly found that the respondent was entitled to recover (without deduction) the royalties that the Crown had received pursuant to the Mining Act 1992.

On appeal, the principal issue was whether a reservation of "all minerals" in Crown Grants issued in 1877 and 1879 extended to the mineral sands of rutile, zircon and ilmenite that were later discovered and extracted from the sandy hills that were the lands included in the two grants.

Held, allowing the appeal:

(1) Although the commercial purposes of the three minerals may or may not have been unknown in the mid-nineteenth century, there was ample evidence that their existence as minerals was as real to the scientific community of the day as was their physical presence in the respondent's land at the time of the relevant Crown Grants.

(2) The three minerals were within the reservation, notwithstanding the fact that the possibility of extracting them from the black sands of the east coast of Australia may not have been considered until the 20th century.