› Party bound by conduct of case at first instance — tenement holder not joined — evidence would have been available
Quick Take
1Section 28 of the Environment, Resources and Development Court Act 1993 (SA) confers only a power to grant declaratory relief in matters otherwise within the ERD Court's jurisdiction. It is not an independent source of jurisdiction, and the ERD Court cannot exercise the Supreme Court's inherent or statutory declaratory powers or its judicial review jurisdiction.
2Section 9AA(9) of the Mining Act 1971 (SA) establishes a scheme for a private remedy between a landowner and a tenement holder. The power to make an order confirming that a landowner has the benefit of an exemption under s 9 arises only once statutory notice under s 9AA(1) or (1a) has been given. It cannot be invoked in a proceeding against the Minister alone where the tenement holder has not been joined or notified.
3Section 9 of the Mining Act does not prevent a tenement being granted or held over exempt land; it prevents authorised operations while the exemption subsists and is not waived. By contrast, s 75(1) fetters the grant of an extractive minerals lease over fee simple land without the owner's written consent.
