Opinion Number. 1675


ISSUE OF MINERS’ RIGHTS TO ENEMY ALIENS: effect of restriction of right of enemy aliens to acquire land

Key Legislation

National Security (Aliens Control) Regulations 1939: National Security (Land Transfer) Regulations 1940: Mining Ordinance 1939 (NT)

The Secretary, Department of the Interior

I refer to your memorandum of 13th November. The only question upon which my advice appears to be required is whether enemy aliens are ‘entitled’ to be issued with miners’ rights.

Although at common law an enemy alien appears to have no rights, enemy aliens who remain in British territory under the licence and protection of the Crown are, for civil purposes, and in the absence of special restrictive legislation, treated as alien friends. (War and Alien Enemies (Page) 2nd Ed. p. 10). Enemy aliens who have complied with the requirements of the National Security (Aliens Control) Regulations, come within this category. (Op. cit., p. 12).

The right of enemy aliens to acquire land has been rigidly restricted by the National Security (Land Transfer) Regulations. These regulations do not appear, however, to affect the grant of miners’ rights under the Mining Ordinance 1939–1940, nor the exercise of the privileges conferred by such miners’ rights. I am not aware of any other legislation affecting the matter. I am, therefore, of opinion that a miner’s right may legally be granted to, and availed of by, an enemy alien who has complied with the provisions of the National Security (Aliens Control) Regulations.

The question whether it is undesirable that enemy aliens, or some enemy aliens, should be allowed to obtain miners’ rights is a question of policy on which it is not my function to express an opinion. The Department of Defence Co-ordination might be consulted on this question. If it is decided that enemy aliens should not be granted miners’ rights, or that the issuing officer should have a discretion in the matter, I think that an appropriate amendment of the Ordinance would be advisable.

[Vol. 33, p. 432]