Govt’s duty is to define rights — not confiscate

Lang Hancock, “Govt’s duty is to define rights — not confiscate,”
Sunday Independent, December 9, 1973, p. 81.

A profound statement appeared in The Australian of March 30, 1971. It said: “Governments, left to themselves, care nothing for liberty and nothing for justice. These things we have to look after ourselves.”

In this comment is the essential difference between totalitarian Government and a free democracy, as well as a world of good advice for every citizen.

A totalitarian Government denies and suppresses freedom and justice in enforcing its claim to run things in its own way, but in a democracy, it is up to us to look after things like liberty and justice for ourselves by ensuring that our elected Governments are not careless of them — and this right and capacity must be jealously guarded.

At totalitarian Government has no responsibility except to perpetuate itself, but we who live under what we like to regard as enlightened parliamentary democracy, see our Government as having the responsibility to protect inherent human rights and to set the limits at which one man’s rights become another’s tyranny.

We also see our Government as being responsible for justly defining civil and legal rights, and abiding by them. The Liberal Party’s “Broad Highway,” a document that is not nearly as widely circulated and read as it deserves to be, even in the Liberal Party, expresses it thus: “For everybody there must be security under the law, for in simple terms the law represents the rights and obligations of all.”

Governments make the laws, and this responsibility to give security under the law to everybody, and to protect human rights, is one that no free democratic Government can ever take lightly or abuse, if it values its own continued right to govern.

These principles should apply in the field of mining and exploration, just as they should apply everywhere else in a democratic community.

Traditionally, and because it is essential to the discovery of major mineral deposits, the prospector in a free country has always the first right to exploit his discovery. Such a right was fundamental to the discovery of Mt Isa, Broken Hill, Kalgoorlie, the Hammersley field and so on.

‘Bushranging’

In WA, this right had once been preserved in the system of temporary reserves. It had not been the right of the Government to expropriate discoveries from a discoverer and parcel them out as it thinks fit.

Yet recently, a Bill to legalise bushranging, claim jumping and confiscation of mineral discoveries from the discoverer, was confirmed in the Legislative Council in the space of about 10 minutes, with not one dissenting voice from the Liberal and Country Parties, who claim to be the protectors of free enterprise and the rights of the individual.

The Bill was the Iron Ore (Cleveland Cliffs) Agreement Amendment Bill, which had its origins in the previous Liberal-Country Party Government’s clearly perceptible intention to repudiate the right of the discoverer, as conveyed; until that time, by the system of temporary reserves.

The purpose of this Bill was to confiscate discoveries (known as the Western Angelas) made by Australians and give them to the foreign controlled Robe River venture in an effort to make it viable.

Writing in the National Times on November 22, 1971, the late Dr Alex Hunter asked if

… the authorised exploration companies and prospectors holding temporary reserves after discovering minerals and duly completing the road, building, air-strip construction, test drilling, etc, necessary to prove reserves to a standard which satisfies experienced mineral companies, can then be forced at the discretion of a Minister to abandon their minerals claims, or sell out at disadvantageous terms in favour of another company?

If so, the Hanwright case taken by itself appears to place the WA Government in the category of a claim jumper of gargantuan ambitions. More important, there is the precedent value of such episodes. Will all temporary reserve minerals by candidates for “re-arrangements”?

On the same principle, can we expect an extension into nickel or other minerals? Will Poseidon areas be merged with Western Mining on the basis of some nationalism exercise? Or, is it that, as one writer in the Australian Miner observed, that the intention of the Court plan is “to completely nationalise all undeveloped iron ore reserves in WA and the place their development under State control?”

The foundation for the repudiation of the discoverer’s right to exploit was laid by misguided actions of the Liberal-Country Party Brand/Court Government. This erosion of the fundamental basis of discovery was completed when it became clear under the newly-election ALP Government that first rights would not necessarily be to the discoverer.

Breakdown

This led to a breakdown and flight of capital from WA mining and to the abandonment of exploration over all of Australia. “Lodestar” in the London Financial Times of November 12, 1973 says:

I have often remarked here that one of the most immoral policies of Governments is to encourage the mine finders to take all the risks, then to step in and smugly swipe a large part of the hard-earned rewards of the small percentage of successful ventures, sometimes breaking promises or even previous laws to do so.

Shareholders on this side of the world who put up the risk money in Australia should thus heed the words of Prime Minister Whitlam last week when he admitted that it might be necessary or desirable to have overseas interests participating in exploration. It largely depended on the “cost of or skill in finding resources.”

“But,” he went on, “this much is clear, whatever participation may be required, permitted or desired in exploration, there will be Australian control in the exploitation.” He added the hope that the country could get 100 per cent ownership of uranium and oil, natural gas and black coal. In other words, YOU FIND IT, THEN WE’LL GRAB IT.

It is no wonder that a senior mining executive, when asked the other day where his group would now ideally be looking for new mineral finds from a politically viewpoint, unhesitatingly named South Africa and the American continent. After all, it is not only the miners who have to weigh up which country can be trusted not to bend the rules.

More more importantly, it is the international banking consortiums who put up the huge sums of money needed to bring a major deposit to production. The attitude of Governments must be vital if the necessary funds are to be forthcoming.

When he was Leader of the Opposition, Mr Tonkin was aware of the “bushranging” principle that had revealed itself in the mining policies of his predecessors in office — the Liberal-Country Party coalition. On February 17, 1971, he said on ABCTV:

The (coalition) Government’s mineral policy for the Pilbara involves the deprivation of the rights under the law of an occupant of a temporary reserve, who has spent a large sum in discovering a payable orebody. Such a policy strikes at the very root of mineral exploration and savours of bushranging.

It must make almost every occupant of a temporary reserve fearful that he may find himself in a similar position to that of Hancock and Wright, and be deprived of the fruits of his labour.

When an ALP Government was elected to office in 1971, it is to Mr Tonkin’s credit that he did not agree with the principle of confiscation, but he was apparently overruled by his State Labor associates (particularly that element which was trying to undermine his position as leader) and the East Angelas discoveries were handed to the American group, Armco.

The Minister for Mines overruled the decision of the Warden’s Court which might have enabled the discoverers to retain some rights so that after two years of rumour and speculation the Iron Ore (Cleveland Cliffs) Agreement Bill was introduced into Parliament and the expropriation of eight temporary reserves in the Western Angelas was rushed through without demur.

When the Act was passed, the confiscation was final and WA’s dishonour confirmed in the eyes of the world.

Excuse

In confiscating the Western Angelas from their Australian discoverers and handing them to the foreign-controlled and majority-owned Robe River venture, the newly appointed depute Premier, Mr Taylor, offered the flimsy excuse for the confiscation that “the additional iron ore reserves give this major industrial undertaking a longevity for which it has been striving since its inception.”

The first interesting point about this is that this doubt about Robe River’s longevity, which had been raised by Premier Tonkin and by prudent mining people from the inception of the scheme, had always been underplayed, even denied, until Mr Taylor’s statement officially confirmed it.

But even more interesting is the fact that Mr Taylor did not mention that areas which have been confiscated are situation some 250 miles from the Robe River operation, involving a 300 mile rail haul before they can be exploited. Yet at the same time, right next to the Cleveland Cliffs mining operations, there are idle deposits held in the name of BHP, which at one time was going to share the rail, port and pellet plant with Cleveland Cliffs. The tonnage in these — the Deepdale deposits — would keep Cleveland Cliffs-Robe River going for 500 to 1000 years!

Now the establishment of this precedent for confiscation in WA means the Minister can now veto any allocation of mining rights heard and granted in open Warden’s Court and can distribute these rights, if he wants to without being called to account by anybody.

Discussion on the Cleveland Cliffs Bill also brought to light a strange dichotomy between the words and the deeds of State Liberal Members of Parliament.

With the notable exception of some three brave souls who spoke against the initial moves for confiscation of the Angelas, Liberal and Country Party Members have aided and abetted the confiscation. When the Cleveland Cliffs Bill was before both Houses in November, 1973, not a single voice was raised against it.

Yet State Liberal Parliamentarians have consistently (and properly) criticised the Federal ALP Government on its authoritarian policies towards the discovery of our North West gas and Narbelek uranium; policies which are in no way different from those they have abetted in the confrontation of the Angelas.

Anxious

In fact, the Leader of the Opposition, Sir Charles Court, appeared to be anxious that the Minister should have absolute power, though the placing of such dictatorial authority in the hands of one man should be totally against Liberal principles.

He said (Hansard P5092, 1973):

I gather this (the Cleveland Cliffs pro forma lease) could be a forerunner of similar leases with the same conditions to be entered into later, and it would be A GOOD THING TO ESTABLISH THE PRINCIPLE AND TO SET THE PRECEDENT.

To which the Deputy Premier replied:

The point made by the Leader of the Opposition is clear to me, but I think he will appreciate that these matters ARE AT THE DISCRETION OF THE MINISTER FOR MINES.

No Member of the House raised any protest against this clear statement of absolute Ministerial power, against which there is NO right of appeal.

Where is this law of the jungle to stop? The only complete answer lies in making certain that a new Mining Act, which must eventually be adopted in WA, prescribes in unmistakable fashion that the allocation of mineral rights is removed from politics, and is no longer left to the whim of one man.

A fresh crop of minerals doesn’t grow each year like wheat and wool. New discoveries have to be made if the nation is to prosper, hence the necessity to encourage the discoverer by giving him first right and absolute protection to those first rights. It is also necessary to protect the Minister for Mines, who ever he might be from charges of favouritism, bribery and incompetence.

For instance, if after a prospector makes a discovery worth millions of dollars, the Minister should confiscate it in favour of a multi-million dollar company, then it is inevitable that only one inference will be drawn in the minds of the public.

The principle of Ministerial prerogative must be eliminated, and mineral rights must be allocated in an open Warden’s Court, presided over by a qualified Judge, from whose decision the only appeal should be by due process of law right through to the Privy Council. Then if the Minister wishes to intervene in any allocation, he must do so by appealing in Court the same as anybody else.

This new Mining Act, when it is adopted, must certainly be built around the man who makes mining possible — the discoverer. And this includes that important enthusiast, the weekend prospector.

There are other important points too, which a good Mining Act would incorporate.

The granting of excessive power to Minister has recently been attacked as dangerous by Senator Greenwood (Lib Vic), a former Attorney-General. Speaking on the Bill to assert Commonwealth sovereignty over territorial waters, he said it “Gave too much power to the Minister.” He lead an attack on the mining code in the Bill, which, he said, gave the Minister wide and unwarranted powers.

An editorial in The West Australian on November 13, 1973, referred to “an unsatisfactory system under which town planning appeals CAN DEPEND ON THE WHIMS OF DESIRES OF A MINISTER.” It was critical of the system of town planning appeals which “gives an appellant a choice — he can take his chance with the Minister, or he can go to an appeals Court, but he cannot appeal from one to the other, and the Minister can refuse to allow the Court to hear an appeal.

“The Minister can still be legislator, administrator, Judge and jury. Mr Tonkin himself remarked in his policy speech almost three years ago: ‘The only satisfactory and, we believe, completely acceptable system is one from which the possibility of Ministerial favour or caprice is entirely removed.’ He undertook that Labor would provide for appeals to be dealt with by an independent tribunal.”

Precisely the same principle is involved in mining, yet the State Minister for Mines introduced the Mining Bill, which allowed him to rule according to “the opinion, belief or state of mind of the Minister.”

Relevant

It is also relevant and interesting to read what Governor Ronald Reagan of California had to say about Government interference when he spoke to a gathering of the Institute of Directors in Sydney on November 27: “People don’t realise that one ounce of Government interference costs a pound. Government is not as efficient as business and Government should be a referee and not try to play the game.”

Summed up on the words of the Liberal Party’s Broad Highway: “Governments are NOT producers, nor are they intended to be.”

Both the ALP and the Liberal-Country Party coalition Governments in WA have been parties to the bushranging confiscation of discoverer’s mineral rights, and both have shown that their words and their actions don’t always match.

The recent confiscation ACT was introduced by a Labor Minister, but was passed without a word of opposition from the so-called free enterprise Liberals and Country Parties. If the mining industry and the people of the State do not value their democratic rights sufficiently to fight to protect them against incursions of this type, then we will also find them undermined in other fields. Injustice does not confine itself to the mining industry.

Remember — the Government’s duty is to define rights and abide by them, not to expropriate them from the discoverer and parcel them out to its friends.

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