Newmont Australia Limited v. Jean-Paul Turcaud -  Law

The Biblical Commandment - Law

Simply put, the Law is a transmutation into statute of the Biblical Commandment - "Do unto others as you would be done by" -  according to situational context.  However such is the incompetence of human nature in observing this simple dictate that guidance is invariably required.  The tool in this, though something of a blunt instrument, is 'precedent', where a previous situation roughly similar to a dispute in question is used as a guide to determine a present solution.  Lawyers who are able to match a precedent to an existing dispute earn lots of money.   Wiley lawyers who know their precedents sufficiently well to be able to transpose contexts (and bamboozle everyone in order to achieve 'outcomes'), earn even more money.   Judges who demur in the face of such wiley lawyers and behave 'proactively' by calling a spade a spade in an attempt to attain real justice rather than wonky outcomes according to precedent, get fired.  Thus is 'Justice- according- to- Law' upheld, and 'The Law' (for the guidance of sheep) renowned as an Ass.   Dispensing law is by no means a guarantee of dispensing justice. Or to put it another way, justice is not always a reachable goal.  The Law gets in the way.

And so we approach the question of justice regarding discovery and ownership of Newcrest Mining Limited's gold-copper mine, for it is in the application of Law to the nexus between discovery and ownership on the one hand, and justice in the fairness of  "I'll-show-you-mine (prospect), if you show me yours (professionalism in evaluation)" on the other, that this dispute turns.

Regarding the 'one hand', there are three questions.  1. Does finding and sampling sought-for mineralised outcrops and placing that discovery in the public domain by extensively advertising it to mining companies constitute discovery?   2. Does pegging of the ground constitute ownership?   3. Do the two go together in respect of the intrinsic fair value of the thing discovered?

Unless a rational argument can be mounted to the contrary, the clear answer to all three, to the logic of an ordinary man is 'yes'.  The questions then arise:- 1. In what proportion should the respective values of discovery and ownership be determined?  2. Should this be assessed at the outset when the commercial value is unknown, or later, when it is known?   Obviously discovery has no value if the thing discovered is valueless, but the corollary also follows - the more that the value of the discovered thing is uncovered, ..or further revealed, the more the value of discovery increases.

Regarding the 'other hand' (professionalism in evaluation) Turcaud sought twice to interest Newmont in his discovery, and was rejected on both occasions.  Yet a third time, when Day Dawn became involved, they were indeed interested.  But Turcaud had also already taken his samples to Day Dawn on the advice of his own geological consultants, Berven & Schiller.  Moreover, Berven & Schiller were also consultants to Day Dawn. So how, in any deal-making involving both 'hands',  does Turcaud's "I'll-show-you-mine", square with such "professionalism in evaluation"?   In the informal culture of mineral exploration where colourful samples are iconic there seems little doubt that Turcaud's  samples would have attracted interest from anyone visiting their office.  Turcaud recounts:-

The question of  'professionalism in evaluation' cannot be left without reference to David Tyrwhitt's contribution.  Tyrwhitt rests his own credits over Telfer in pegging the claims, but is professionally known  for "being responsible" for the discovery of Telfer.  However, whilst the importance of claim-pegging is unquestionably an intrinsic expression of professionalism, and drilling-out (and further revealing) an orebody is a valuable contribution to the pool of professional expertise, it is hardly an expression of  "professional evaluation" in the spirit of fair exchange in deal-making, when as in this case the prospector is pushed aside and men who "knew how to run",  ran.   Pegging claims over the top of a prospector who brings his prospect to you in good faith, is highly unprofessional, ethically and morally bereft, and every other pejorative in the book.  Though of course perfectly legal - there is a profession which thrives on exactly such 'legal'  niceties.  However when such occurs it is a call for things to be set right - not for miscreants to gloat in their corruption and know that things in their world are alive and well.

To Newmont, this simple point of severance of the connection of Turcaud's discovery with their ownership was critical, for otherwise and forever into the future would be judged how they came by the deposit.  In 1975 this question was to attract the attention of the Shadow Attorney General of Western Australia, Mr T.D. Evans who tabled in Parliament a number of questions relating to the affair, summarising:-

"In the light of that I believe in the interests of natural Justice the Government is duty bound to consider seriously calling upon all those who are willing and competent to give evidence in this case with a view to determining whether the Newmont company did in fact acquire these mining tenements in a manner befitting a company which was acting with fairness and honesty."

Successive governments have turned away from this call, resting their case in such bald statements as "The matter has already been discussed" (when it has not), or, "There is no evidence to support..etc." (when there is), or, "This is a domestic matter between Newmont and Turcaud.." ...when in fact the sequence of events recorded by Sheppard goes right to the very root of investiture of the mineral wealth of the country.

From the beginning (1970-73) Turcaud has been unwavering in his call for an enquiry at the highest level into the affair, and Evans' concern was echoed in an article in Corporate Mining Magazine in 1991 by Musgrove:-

"So, while the indisputable proof is that Koehn, rather than Thomson or Turcaud discovered the (gold in the) Telfer Deposit, the question remains, why has the truth been hidden for so long, and by so many?  ...   Once that is forthcoming the great Telfer myth can finally be laid to rest."

Eleven years later Sheppard's (2002) comprehensively researched account of the affair confirms Turcaud's claim, that whilst the Law favoured Newmont's staking of the claims, the weight of  moral justice towards the discoverer bears heavily on Turcaud's side, ..and warrants recognition, both morally and in terms of financial compensation.  The lie that Newmont has perpetrated on Western Australia, inscribed in the name 'Telfer', needs undone.

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