South Australia 227

mining law, but it also includes matters such as cultural heritage and petroleum and it was slated to take on jurisdiction under the Geothermal Exploration Act 2004. The Attorney-General's announcement states that the new Land and Environment Court "will be user-friendly and more accessible and there will be an emphasis on mediation to resolve

3 disputes". It is expected that District Court judges will hear the more complex cases in the new

Court, with judicial assessors taking on the remainder of the workload. establishment of the new Court has been set at this stage. No date for the

SOUTH AUSTRALIA WATER RESOURCES ­ POWER OF COURT TO EXCUSE BREACHES OF ACT Simes v Minister for Environment and Conservation ([2004] SASC 84; 88 SASR 175, Supreme Court of South Australia (FC)) Underground water ­ "Existing user" ­ Failure to comply ­ Prescribed wells ­ Water Resources Act 1997 (SA) ­ Environment Resources and Development Court Act 1993 (SA) This case concerns the rights of an "existing user" under the Water Resources Act 1997 (SA) even though that person had not applied for a licence within the prescribed time. The case also examines s 33 of the Environment Resources and Development Court Act 1993 (SA) which allows the Court to excuse a failure to comply with a requirement of that Act and other acts. Facts The appellant had used underground water from a bore on his land at Kangarilla for the irrigation of pasture and vines since 1991. At that time the wells in the area were not prescribed wells. On 24 December 1998 all existing wells in the area became prescribed wells. The consequence of that prescription was that under the Water Resources Act 1997 (SA) (the Act), existing users as defined in s 36 of the Act were able to continue to use water without a licence until the end of the prescribed period (1 July 2000) or if a licence is applied for within six months after the publication in the Gazette of the regulation declaring the resource to be a prescribed resource. Section 36(11) of the Act provided that a person ceases to be an existing user if he or she does not apply for a water licence within that six-month period. The appellant was not identified as an existing irrigator and was not notified of a moratorium, nor offered an authorisation to take water. The appellant did not apply for a water licence until 12 December 2002. The application was treated as an application under the general licence provisions of the Act to be determined in accordance with s 35 of the Act. The Minister declined to issue a licence with a water allocation based on the appellant's pre-existing use. On appeal to the Environment Resources and Development Court (the ERDC) the appellant asserted that he had a right of appeal under s 36(6) alleging that the Minister had refused a water application to which he claimed to be entitled under s 36(2). The ERDC declared that the appellant was not an existing user within the meaning of s 36 of the Act and the appellant appealed to the Supreme Court.

3

See: http://statements.cabinet.qld.gov.au/cgi-bin/display-statement.pl?id=2746&db=media. John Keen, Barrister, Adelaide.


228 Recent Developments (2004) 23 ARELJ

Decision The Full Supreme Court dismissed the appeal and held that there were no conflicting provisions within s 36 of the Act such as to require any adjustment to the normal meaning of "existing user" when applying the normal principles of statutory construction as set out by the High Court in

1

Project Blue Sky v Australian Broadcasting Authority. This was so even though the appellant had not been identified as an existing irrigator and did not know of his rights under the Act and the moratorium. According to the Full Court the Act is clear and at the time of his application he was not an existing user for the purpose of s 36 and had no right to a water allocation calculated in accordance with that section. To hold this was not to ignore the principle of construction that statutory provisions designed to protect and preserve existing rights should be liberally construed as the

2

language in the context allows. Section 36(11) is the critical section as that states that the person ceases to be an existing user if he or she does not apply for a water licence within six months after the publication in the Gazette of the regulation declaring the resources to be a prescribed resource. As the appellant did not apply until well after the prescribed period he could not be regarded as an existing user under this section. Section 33 of the Environment Resource and Development Court Act 1993 provides as follows:

"(1)

If, in proceedings before the Court under this or any other Act, or on an appeal to the Supreme Court from a decision or order of the Court under this Act, it appears to the relevant Court that:-

(a) (b)

there has been a failure to comply with a requirement of any Act or other law that affects the matter to which the application or appeal relates; and subsection, it would not be unjust or inequitable to exercise the powers conferred by this

(2)

the relevant Court may excuse the failure by ordering that, subject to such conditions as may be stipulated by the relevant Court, the requirement be dispensed with to the necessary extent. If, in proceedings before the Court under this or any other Act, or on an appeal to the Supreme Court from a decision or order of the Court under this Act, it appears to the relevant Court that:-

(a) (b)

the proceedings or appeal could be resolved in a manner that is fair to all parties if certain modifications to the proceedings or appeal were made; and it would be conductive to the expeditious administration of justice if the powers conferred by this subsection were exercised,

the relevant Court may, by order, amend the application or appeal accordingly." Bleby J, who delivered the decision of the Full Court, said that s 33 could not apply to change the substantive effect of an Act. His Honour thought that if s 33 were to be applied in the manner advocated by the appellant to excuse the appellant's failure to make an application for the licence within the time prescribed by s 36, the Court would in effect be authorising and directing the

1 2 (1998) 194 CLR 355. See Dorrestijin v SA Planning Commission (1984) 59 ALJR 105 at 108.


South Australia 229

Minister to do something which the Act did not permit him to do. The Full Court held that s 33 cannot be used to change the substantive effect of the Act. The decision on the facts is unique to this case. However, the Full Court's decision in respect of s 33 will have relevance to other cases in South Australia and similar provisions in other States. The important point of the Full Court's decision is that the power of a court to excuse a breach of an Act cannot be used to undermine a substantive prohibition in an Act.

COMPENSATION TO LANDOWNERS ­ EXEMPT LAND Southern Titanium NL v Heidrich & Ors (Warden's Court, South Australia, 8 April 2004) Compensation for landowners ­ Contractors on mining operations ­ Exempt land Facts This case concerned various objections to mining on freehold land made by pastoralists in the Mallee region together with applications by the miner, Southern Titanium NL, to remove the exempt status of parts of the land which was close to houses and farming infrastructure. Southern Titanium has obtained a mining licence in respect of a series of beach strandlines each up to 30km long with a resource of 69 million tonnes of titanium, zircon and other heavy mineral sands. The mine is expected to be the sixth biggest zircon mine in the world. The Warden noted that if the mine commenced it would contribute a significant economic benefit to the region and the State. There will also be direct financial benefits for landowners by way of rent payable under the new mining leases. Under s 40 of the Mining Act 1971 (SA), 95% of the rental payment will be paid to the landowners proportionate to their land subject to the mining leases. Various of the land owners/farmers claimed that the disruption caused by the mining meant that the mining should not go ahead because of the dust, possibility of disease to potato crops and disruption caused by trucks along public and private roads. Decision The Warden looked at the policy behind the Mining Act which is to promote the exploitation of minerals in the State. Provisions for compensation under the Act were to provide equitable treatment to the landowners. One preliminary matter was the question of whether sand is a mineral. The Warden concluded that when sand is mined to recover from it minerals such as titanium and zircon it is (ie the sand is not an extractive mineral) therefore the right to mine it lies with the holder of the mining tenant and not the freehold landowner. After carefully considering all the environmental issues of which substantial evidence was provided by various environmental, mining and other experts the Warden concluded that the mine could go ahead and that there should be exemptions in respect of the mine which will be close to houses and other farming infrastructure.

John P Keen, LLM, Barrister, Torrens Chambers, Adelaide.