Reservation reversed: Court of Appeal limits land reservation powers under SA Mining Act

In Terramin Exploration Pty Ltd & Anor v State of SA [2026] SASCA 15, the South Australian Court of Appeal confirms the limits of legislation where its provisions are said to take away valuable rights, such as exploration or mining rights granted pursuant to the Mining Act 1971 (SA) (SA Mining Act), without compensation.

We previously wrote on the decision of the Supreme Court of South Australia in Terramin Exploration Pty Ltd & Anor v the State of South Australia [2025] SASC 3 (see here).

In that matter, Terramin Exploration Pty Ltd and Terramin Australia Ltd (together, the Appellants) challenged the Minister for Energy and Mining’s decision to refuse the grant of a mining lease and miscellaneous purpose licence (Refusal Decisions), and the Governor’s decision to reserve land from the operation of the SA Mining Act pursuant to s 8(1)(c) (Reservation Decision). The Appellants held existing rights over the land pursuant to exploration licences. The Court dismissed the challenges to the Refusal Decisions and the Reservation Decision at first instance.

The Appellants appealed the first instance decision. The Refusal Decisions were upheld for the reasons given by the primary judge. Three grounds were directed at the Reservation Decision.

The Court of Appeal set aside the Reservation Decision.

Findings

The Appellants successfully argued that s 8(1)(c) of the SA Mining Act did not authorise the Governor to reserve land which already had exploration licences granted over it.

Section 8(1)(c) allows the Governor, by proclamation, to reserve land from the operation of the SA Mining Act. If the Governor reserved land over which a tenement holder held existing rights (by way of a mineral tenement), the reservation would have the effect of limiting the holder’s tenement rights.

In reaching its decision, the Court applied the assumption that Parliament does not intend to interfere with existing rights, unless it says so in clear and unambiguous language. If Parliament intended to allow the Governor to extinguish existing rights without compensation, s 8(1)(c) would be expected to expressly say so. While s 8(1)(c) of the SA Mining Act contains broad and unqualified language, it makes no reference to the effect of a reservation on accrued rights granted under the SA Mining Act. The Court was not prepared to interpret the section as intending to allow the Governor to extinguish potentially valuable rights without fair compensation. The Court placed particular emphasis on s 8(1)(c) not distinguishing between different tenement types. While the rights under the exploration licences here were limited and economic mining was contingent on the grant of a mining lease, the provision had to be interpreted in a way that applied equally to extremely valuable mining leases permitting profitable mining. Accordingly, the Court found that s 8(1)(c) did not allow the Governor to reserve land which is the subject of an existing mineral tenement from the operation of the SA Mining Act.

Implications

The decision provides that the broad reservation power in s 8(1)(c) of the SA Mining Act has limits. The Governor cannot, by way of s 8(1)(c) of the SA Mining Act reserve land which is already subject to a mineral tenement. More generally, it is a reminder that legislation will not easily be interpreted to take away valuable rights without compensation unless the words of the legislation clearly reveal Parliament’s intention to do so.