Who owns the minerals under Australia, who is the Crown, and how the COGS model uses corporations law to give communities a direct legal voice.
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Australian law says the Crown owns all the minerals beneath your feet. But who is the Crown? Is it the people of Australia? This section explains the legal truth, from the beginning.
The Crown is not a person. It is not a building. It is not a government department. The Crown is an ancient legal fiction: a perpetual, abstract entity that represents the sovereign authority of the state. It predates democracy by many centuries.
In English law, the Crown developed during the medieval period as a way of separating the person of the king from the institution of kingship. The king could die; the Crown continued. This idea was expressed in the legal phrase "the King has two bodies": a mortal physical body and an immortal institutional body. The Crown is the immortal institutional body.
Over centuries, the Crown accumulated a set of rights and powers belonging to it alone. These are called the prerogative rights or the royal prerogative. They include the power to make war, to enter treaties, and, directly relevant here, to own all minerals and subterranean resources beneath the land of the realm.
The Crown's ownership of minerals beneath the ground was established in English law by one of the oldest resources cases on record.
When British colonists arrived in Australia, they brought English common law with them, including the royal prerogative over minerals. When the Australian colonies were established and later federated, every state and territory codified Crown mineral ownership in statute law. The ancient royal prerogative became modern legislation, but its origin was never changed.
In Australia today, the Crown means the King of Australia acting through his appointed representatives. The King is currently King Charles III. He holds the same throne as the King of the United Kingdom but in a separate legal capacity as King of Australia.
This was confirmed by the High Court in Sue v Hill (1999) 199 CLR 462, which held that Australia and the United Kingdom are now separate foreign countries in a legal sense. The King of Australia and the King of the United Kingdom, while being the same person, act in entirely separate legal capacities.
The King does not govern Australia in person. He is represented at the federal level by the Governor-General and at each state level by the six State Governors. These vice-regal officers act in the name of the Crown. All formal executive power in Australia flows through them.
Australia's founding constitutional document was passed by the British Parliament in 1901. The Australian people voted in colonial referendums on whether to federate, but they did not write or ratify the Constitution itself. The Crown's authority in Australia traces back through an Act of a foreign parliament, not through a document created by and for the Australian people.
This means that the legal basis of Crown ownership of Australian minerals traces back through the Commonwealth of Australia Constitution Act 1901 (Imp), through the colonial statutes of each colony, through English common law, and ultimately to an English court decision made in 1568. The Australian people were not a party to any of that history.
When lawyers say "the Crown" in Australia, they do not always mean the same thing. In Australia there are seven legally separate Crown entities, one for the Commonwealth and one for each state.
| Crown entity | What it controls | Owns which minerals |
|---|---|---|
| Crown in right of the Commonwealth | Federal government as a legal person | Offshore minerals beyond 3nm; uranium anywhere in Australia; Commonwealth territories |
| Crown in right of New South Wales | NSW government as a legal person | All onshore minerals and petroleum in NSW; coastal waters within 3nm |
| Crown in right of Victoria | Vic government as a legal person | All onshore minerals in Victoria |
| Crown in right of Queensland | Qld government as a legal person | All onshore minerals in Queensland |
| Crown in right of Western Australia | WA government as a legal person | All onshore minerals in Western Australia |
| Crown in right of South Australia | SA government as a legal person | All onshore minerals in South Australia |
| Crown in right of Tasmania | Tas government as a legal person | All onshore minerals in Tasmania |
These are not the same legal entity. The Crown in right of the Commonwealth and the Crown in right of New South Wales can sue each other in court and have done so. Each Crown holds its own assets, incurs its own liabilities, and is governed by its own laws.
For minerals specifically: the Crown that owns minerals in New South Wales is the NSW Crown, controlled by the NSW Parliament elected by the people of NSW. But as the following sections explain, that electoral connection does not make the people the legal owners of those minerals.
The royal prerogative is a body of powers and rights belonging to the Crown that cannot be removed by ordinary legislation without explicitly saying so. The most important prerogative for this discussion is the doctrine of Crown tenure over all land in Australia.
Under English common law, all land is ultimately held from the Crown. No private person owns land outright. A private person holds an estate in land: a right to use and occupy it granted by the Crown. The Crown holds what lawyers call "radical title": the underlying, ultimate ownership beneath every private title.
When the British claimed Australia as a colony, the Crown asserted radical title over all land on the continent. This became the legal foundation for the entire Australian land title system. Every freehold title in Australia traces back to this original assertion of Crown sovereignty, and radical title includes the subsurface.
This is why colonial legislatures did not need to pass laws taking minerals away from private landowners. The minerals were never private property to begin with. The Crown had claimed them from the moment it asserted sovereignty over the continent.
Each colonial and state legislature confirmed what was already the case under common law by writing mineral ownership into their Mining Acts. The NSW provision is the most directly relevant to mineral tenements across Bundjalung Nation Country and northern New South Wales:
All minerals in, on or under any land in New South Wales are the property of the Crown. This applies to all land in NSW without exception: privately owned land, publicly owned land, Aboriginal land, National Parks, pastoral leases, and any other tenure. The surface tenure makes no difference to the Crown's ownership of what lies beneath.
Every other state and territory has an equivalent provision. The language varies but the effect is identical: the Crown owns everything underground, everywhere, with no exceptions for private landowners or communities living above those resources.
Most Australians assume the answer is obviously yes. The full answer is: in theory yes, but the chain between the people and real Crown power is long, indirect, and has significant gaps.
In this theory, the people control the Crown through elections. If a government manages mineral resources badly, they can vote it out.
In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, the High Court confirmed that the Constitution implies a freedom of political communication and that representative government is a foundational value. The Court has never held that these principles give the Australian people any legally enforceable property right over Crown assets, including minerals.
Several major legal and political events have shaped the relationship between the Crown, the government, and the Australian people. None of them transferred mineral ownership to communities.
In 1999, Australians voted on whether to become a republic by replacing the King with a President. The model proposed a President appointed by Parliament rather than directly elected. The referendum failed: 54.9% voted No nationally, and the Yes vote did not achieve a majority in any state.
The defeat was partly driven by disagreement over the specific model rather than outright rejection of republicanism. But the result was that Australia remained a constitutional monarchy. The Crown remains the legal owner of all minerals. No further referendum has been held as of May 2026.
The Mabo decision is one of the most significant legal events in Australian history. It is essential to understand exactly what it changed and, equally, what it left completely untouched.
Mabo did not overturn Crown ownership of minerals. The majority judgments explicitly preserved the Crown's radical title over all land in Australia. Native Title, where it exists, is a right to use and occupy the surface of the land. It is not a right to the minerals, oil, or gas beneath it. The Crown's prerogative over subsurface resources was left completely intact by the Mabo decision.
The practical effect of Mabo and its successor cases is that First Nations peoples gained legal recognition of their connection to Country and procedural rights in relation to mining on that Country. They did not gain ownership of the resources beneath it. The Crown's mineral prerogative survived Mabo entirely.
Some Australians treat the Crown as a ceremonial remnant with no real power. The events of 11 November 1975 demonstrate that this assumption is wrong.
On that date, Governor-General Sir John Kerr used the reserve powers of the Crown to dismiss the elected Prime Minister, Gough Whitlam, and his government. The Whitlam government held a majority in the House of Representatives. It had been elected by the Australian people. The Governor-General dismissed it without a vote of the people and without a vote of the House of Representatives.
Kerr then commissioned the Leader of the Opposition, Malcolm Fraser, as caretaker Prime Minister. A general election was held, which Fraser won.
The legal basis was the Governor-General's reserve powers under the Commonwealth of Australia Constitution Act 1901 (Imp), ss.61 and 64. These powers are not fully defined in the written Constitution. Their precise scope remains contested among constitutional lawyers today. No Australian court has ruled the dismissal unconstitutional.
The 1975 dismissal demonstrated that the Crown's reserve powers are not ceremonial. An appointed vice-regal representative, not accountable to the Australian people through any electoral process, exercised real power to remove an elected government within living memory. The reserve powers that were used then remain available to any future Governor-General. The Crown in Australia is a live legal institution, not a historical decoration.
Putting all of the above together, the position is this:
The minerals beneath Australian soil are owned by the Crown. The Crown in each state is a legally separate entity from the elected government, though elected governments exercise its powers. The Crown's mineral ownership traces back to an English court decision in 1568 and was never conferred on the Australian people through any democratic founding document. The Constitution was passed by the British Parliament in 1901. The people elect governments that manage Crown resources, but the electoral connection does not give the people legal ownership of those resources.
There is no Australian law that entitles communities living above a mineral resource to a financial share of what is extracted from beneath their feet. Royalties flow to government treasuries, not to communities. Native Title gives procedural consultation rights, not mineral ownership. Landowners above the resource have no right to what lies beneath them.
The people of Australia elect governments. Those governments manage resources on behalf of the Crown. The revenues from those resources go to government treasuries. Whether those revenues reach the communities most affected by mining is decided by politicians. It is not guaranteed by law. Communities have no legal entitlement to a share of the value extracted from beneath their own Country.
This gap is structural, not accidental. It is the result of 450 years of legal history that began with English royal prerogative and was carried forward without fundamental reform into the Australian legal system. It has survived federation in 1901, the Australia Acts in 1986, the Mabo decision in 1992, and the republican referendum in 1999.
It cannot be fixed by electing a different government. Governments that wish to share resource revenues more equitably can choose to do so through policy, but they are not required to by law. Governments that choose not to share are acting entirely within the law as it stands.
The legal position above is the framework. Below is what the framework produces in two of Australia's biggest export industries.
Australia's overall gold-mining ownership is 55% Australian-controlled. But of the top five gold producers (Boddington, Tropicana, Cadia, Super Pit, and Tanami), only 24% is Australian-controlled. Four of the top five are majority foreign-owned.
Dr Sandra Close, Surbiton Associates, reported by Mining Weekly, September 2025. FY 2024/25 figures.
56% of LNG exported from Australia is royalty-free. Between 2021/22 and 2024/25, Australia exported $170 billion of royalty-free LNG. Gas companies have made $112 billion in windfall profits since the Ukraine war began. Petroleum Resource Rent Tax revenue in 2023 was lower than in 2001. As of 2023, no LNG export project had ever paid the Petroleum Resource Rent Tax.
The Australia Institute, Submission to Senate Inquiry, April 2026.
Both industries operate under licences granted by the Crown over minerals owned by the Crown. The Australian public holds no legal share in either resource.
COGS of Australia Foundation was built with a clear understanding of the legal position described on this page. Waiting for constitutional reform to transfer mineral ownership to communities is not a practical strategy. That reform has not occurred in 125 years of Australian federation.
Instead, COGS uses a legal mechanism that already exists and that the Crown's mineral ownership does not affect: the shareholder rights created by the Corporations Act 2001 (Cth).
The Crown owns the minerals. But the Crown grants exploration licences and mining leases to companies. Those companies are governed by the Corporations Act. Every person who holds a CHESS-registered share in an ASX-listed company is a legal part-owner of that company and has direct legal rights inside it.
Those rights do not depend on Native Title. They do not depend on constitutional reform. They do not depend on a government choosing to share royalty revenue. They are legal rights that flow directly from share ownership, enforceable in Australian courts.
Every CHESS-registered shareholder, regardless of the size of their holding, has the right to: attend and speak at general meetings; vote on resolutions, including resolutions about how the company manages its tenements and what it does on Country; receive all financial disclosures made to the ASX; question the board of directors; and receive dividends if profits are distributed. These rights apply equally to a community member holding one share and an institutional investor holding millions of shares.
COGS of Australia Foundation pools community members as direct ASX shareholders in resource companies operating on their Country. Each member holds one CHESS-registered share in their own name. Each member has one vote. The Foundation does not hold shares on behalf of members. The shares belong to each individual community member directly, registered in their own name on the CHESS system.
As a concrete example: any exploration company holding licences across Bundjalung Nation Country in northern New South Wales operates under licences granted by the NSW Crown under the Mining Act 1992 (NSW). The Crown owns the minerals. The company holds only a right to explore.
The Crown still owns the minerals. The company holds the right to explore for them. COGS community members hold shares in that company and therefore hold a direct legal voice in its governance. That voice exists whether the company wants it or not. It is a statutory right. It cannot be taken away.
Whenever ASX-listed shares in a resource company are discussed, the in-ground value of the mineral resources those tenements contain must also be part of the conversation. Shares give the community a legal voice. The in-ground minerals carry real, measurable value that is recognisable without extraction ever occurring, and potentially in lieu of extraction entirely. This is the foundational aspiration of the COGS model: that communities gain a legal seat at the table before extraction decisions are made, not after. The Crown owns the minerals. But the Corporations Act gives communities the key to the room where decisions about those minerals are made.
Governance Foundation Day for COGS of Australia Foundation is 14 May 2026, on Wahlubal Country, Bundjalung Nation, northern New South Wales.
This page provides general legal information only. It is not legal advice. The laws and cases cited were current as at May 2026. Laws change. If you need advice about a specific mining, Native Title, or constitutional matter, consult a qualified Australian lawyer.
The laws that govern minerals, oil, and gas beneath Australian soil. Every Act cited.
In Australia, the government owns all minerals, oil, and gas beneath the ground. This applies across every state and territory. It does not matter who owns the land above. A farmer, a company, a First Nations community, or a local council can own the surface of the land and still have no right to what lies beneath it.
This rule comes from English common law and has been written into statute law in every Australian jurisdiction. It is not a policy decision that can be changed by a local council or a court. It is the law.
Owning land in Australia gives you no automatic right to anything beneath the soil beyond the shallow surface layer. The minerals, oil, and gas belong to the Crown — meaning the relevant government.
The word "Crown" means the government as a legal entity. In practice, this means the state or territory government for most onshore resources, and the federal government for offshore resources and uranium.
This principle is confirmed in the Mining Act 1992 (NSW), Section 9, which states that all minerals in, on, or under land in New South Wales are the property of the Crown. Equivalent provisions exist in every other state and territory (see Section 2 below).
Each state and territory has its own legislation that vests minerals and petroleum in the Crown and sets the rules for exploration and extraction. The laws below are the primary statutes in each jurisdiction.
New South Wales law is directly relevant to the mineral tenements across Bundjalung Nation Country in northern New South Wales.
The federal government owns and regulates resources in two specific situations: offshore beyond 3 nautical miles from the coast, and uranium anywhere in Australia.
State and Territory governments own and regulate onshore minerals and petroleum, and offshore resources within 3 nautical miles of the coast. The Commonwealth owns and regulates everything beyond that, out to the edge of the continental shelf, plus uranium anywhere in Australia.
Native Title recognises the connection that First Nations peoples have to their Country. But it does not give First Nations communities ownership of the minerals, oil, or gas beneath that Country. That remains with the Crown.
Native Title does not confer ownership of minerals or petroleum. It does not entitle Traditional Owners to a share of royalties. The Crown retains legal ownership of all subsurface resources even where Native Title exists over the surface land.
The practical effect is this: Traditional Owners of Country have the right to be consulted about mining on their land. They do not have the right to stop it in most cases, and they have no automatic right to a share of the value extracted. Consultation is not ownership.
Because Native Title does not give mineral ownership, the only way for a First Nations community — or any community — to hold a genuine financial interest in resource extraction is to hold equity inside the licensed company. That is a legal right that exists independently of Native Title.
No company or individual can explore for or extract minerals or petroleum without a licence or title granted by the relevant Crown authority. The Crown does not sell the minerals. It sells the right to access them. The minerals remain Crown property until they are physically extracted under a valid lease.
| Title type | What it allows | Relevant legislation (NSW) |
|---|---|---|
| Exploration Licence (EL) | The right to explore for minerals. No extraction permitted. Holder must report findings to the government. | Mining Act 1992 (NSW), s.13 |
| Assessment Lease (AL) | Allows detailed assessment of a mineral resource after exploration. A bridge between exploration and mining. | Mining Act 1992 (NSW), s.44 |
| Mining Lease (ML) | The right to mine and extract minerals. The most significant title. Triggers full community and Native Title consultation requirements. | Mining Act 1992 (NSW), s.63 |
| Mineral Claim (MC) | A smaller-scale title for prospecting by individuals. Limited area and quantities. | Mining Act 1992 (NSW), s.172 |
| Petroleum Exploration Licence (PEL) | The right to explore for petroleum (oil and gas). No production permitted. | Petroleum (Onshore) Act 1991 (NSW), s.9 |
| Petroleum Assessment Lease (PAL) | Allows detailed assessment of a petroleum resource after exploration. | Petroleum (Onshore) Act 1991 (NSW), s.22 |
| Petroleum Production Lease (PPL) | The right to extract petroleum. Equivalent to the Mining Lease for solid minerals. | Petroleum (Onshore) Act 1991 (NSW), s.28 |
| Offshore Production Licence | The right to extract petroleum in Commonwealth offshore waters. | OPGGSA 2006 (Cth) |
Any company holding Exploration Licences on Bundjalung Nation Country holds the right to explore, nothing more. It does not hold the right to extract. The minerals remain the property of the NSW Crown, regardless of who holds the licence.
When a company extracts minerals or petroleum under a valid mining lease or production licence, it pays a royalty to the Crown. A royalty is a percentage of the value of the material extracted. It is not paid to the landowner. It is not paid to the community living above the resource. It is not paid to Traditional Owners. It is paid to the state or territory government.
Royalties go to the government, not to landowners, not to the community, and not to Traditional Owners. Whether those royalties are distributed equitably back to communities affected by mining is a separate policy question that Australian law does not currently resolve in favour of local communities by default.
Mining and petroleum projects must also comply with a separate layer of environmental and planning legislation. These laws do not change who owns the minerals, but they can require environmental assessments, community consultation, and conditions on how extraction takes place.
While Australian law does not give communities automatic rights over the minerals beneath their feet, corporations law gives shareholders direct legal rights inside the companies that hold the mining licences. This is the legal foundation of the COGS model.
A community member holding a single CHESS-registered share in an ASX-listed mining company has a direct legal voice in that company's governance. They can attend the Annual General Meeting, ask questions of the board, vote on resolutions, and access all public financial disclosures. This right exists under the Corporations Act 2001 (Cth) regardless of the size of the shareholding.
| Resource type | Who owns it | Governing law |
|---|---|---|
| Onshore minerals (NSW) | NSW Crown | Mining Act 1992 (NSW) |
| Onshore petroleum (NSW) | NSW Crown | Petroleum (Onshore) Act 1991 (NSW) |
| Onshore minerals (Qld) | Qld Crown | Mineral Resources Act 1989 (Qld) |
| Onshore minerals (WA) | WA Crown | Mining Act 1978 (WA) |
| Onshore minerals (SA) | SA Crown | Mining Act 1971 (SA) |
| Onshore minerals (Vic) | Vic Crown | Mineral Resources (Sustainable Development) Act 1990 (Vic) |
| Onshore minerals (Tas) | Tas Crown | Mineral Resources Act 1995 (Tas) |
| Onshore minerals (NT) | NT Crown (+ Cth overlay for Aboriginal land) | Mining Act 1980 (NT) + Aboriginal Land Rights (NT) Act 1976 (Cth) |
| Offshore (within 3nm) | Relevant State Crown | State offshore petroleum legislation |
| Offshore (beyond 3nm) | Commonwealth | OPGGSA 2006 (Cth) |
| Uranium (all locations) | Crown + Commonwealth oversight | Atomic Energy Act 1953 (Cth) + ARPANS Act 1998 (Cth) |
| Native Title land surface | Traditional Owners (surface only) | Native Title Act 1993 (Cth) |
| Subsurface resources beneath Native Title land | The Crown (not Traditional Owners) | Mabo v Queensland (No 2) (1992) 175 CLR 1; Western Australia v Ward (2002) 213 CLR 1; state Crown mineral ownership provisions (e.g., Mining Act 1992 (NSW), s.9) |
Every Act and regulation cited on this page is listed below in alphabetical order for easy reference.
This page provides general legal information only. It is not legal advice. The laws cited were current as at May 2026. Laws change. If you need advice about a specific mining matter, consult a qualified Australian lawyer with experience in resources law.
COG$ of Australia Foundation · ABN 91 341 497 529 · Drake Village NSW 2469 · Wahlubal Country, Bundjalung Nation
A community membership. Not financial advice. Not a managed investment scheme.