Donovan v Struber & Ors [2011] QLC 45 (2011) 32 QLCR 226

LAND COURT OF QUEENSLAND CITATION: Donovan v Struber & Ors [2011] QLC 45 PARTIES: Gary Awarua Donovan (applicant) v. Stephen Roy Struber and Dianne Rose Wilson-Struber (respondent) Chief Executive, Department of Environment and Resource Management (previously known as the Environmental Protection Agency) (Statutory Party) FILE NO: MRA137-10, EPA209-10, MRA631-10, MRA352-09, EPA351-09, MRA350-09, MRA354-09, EPA353-09, MRA357-09, MRA356-09, EPA355-09, and MRA358-09. DIVISION: General Division PROCEEDING: Applications for declarations and determination of preliminary points DELIVERED ON: 22 July 2011 DELIVERED AT: Brisbane HEARD AT: Mareeba/Atherton MEMBER: His Honour: Mr PA Smith ORDERS: 1. As regards the declarations sought by the miner, that is that: “(a) The Environmental Authority Application (‘the relevant application’) filed with the Mining Registrar on 30 October 2008 in all respects complies with the requirements of s.154 of the Environmental Protection Act 1994 (“the EPA Act”), or alternatively; (b) The relevant application substantially complies with the requirements of s.154 of the EPA and such substantial compliance is sufficient for the purposes of the EPA in accordance with s.49 of the Acts Interpretation Act 1954; (c) The respondents’ grounds of -- 1 of 30 -- 2 objection contained in the Objection Form filed on 5 August 2009 are: (i) The only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the Mineral Resources Act 1989 (“the MRA”); (ii) The only current objections accepted by the administering authority and referred to the Court in accordance with Chapter 5 Part 6 Divisions 6 and 7 of the EPA.” ANSWER: I decline to make the declarations sought in (a) and (b). As regards (c)(i), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the MRA. As regards (c)(ii), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only properly made objections referred to the Court in accordance with s.217(2) of the EP Act. It is further declared that the two letters dated 31 July 2009 are objections pursuant to s.217(3) of the EP Act. 2. As regards the preliminary point or significant issue sought to be decided by the miner, vis: “Whether the respondents’ grounds of objection in the Objection Form filed on 5 August 2009 pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.” ANSWER: The landholders grounds of objection filed on 5 August 2009 do not pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA. 3. As regards the preliminary point (a) as -- 2 of 30 -- 3 formulated by the Statutory Party, which effectively repeat those sought by the landholders question, which asks: “Whether the Land Court has jurisdiction to hear and determine an objections decision under the EP Act and, for the purposes of deciding this question, whether:- (i) The application for the environmental authority lodged by the applicant is valid; and (ii) The notice of decision for the draft environmental authority (mining lease) is valid;” ANSWER: The Land Court has jurisdiction to determine the objections referred by the Mining Registrar under the EP Act on 7 August 2009 and 25 May 2010. I decline to otherwise answer the question. 4. As regards the preliminary point (b) as formulated by the Statutory Party, which repeats those sought by the landholders and the miner, which asks: “Whether the respondent’s grounds of objection contained in the objection form filed on 5 August 2009, relates only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.” ANSWER: The landholders` grounds of objection filed on 5 August 2009 do not pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA. 5. These matters are set down for Review and Directions in Brisbane on Thursday, 11 August 2011, at 2:30 pm. Parties not present in Brisbane may attend by telephone. 6. The parties are directed to attend the Review and Directions with a timetable aimed at concluding the hearing of these matters over 5 days commencing 24 October 2011 in Mareeba/Atherton or Cairns or other suitable location. -- 3 of 30 -- 4 CATCHWORDS: Preliminary point – mining and environmental objections – mining leases – validity of environmental authority application – prejudice to respondent – past performance - jurisdiction of the Court – failure of transcription technology – evidence not transcribed – objects of the EP Act vastly different to objects of MRA – object of MRA to facilitate mining of State’s resources – object of EP Act to protect Queensland’s environment while allowing for development ecologically sustainable development – efficient resource management. Analysis of evidence – inconsistent material – application process - incomplete forms and applications – non-compliance – serious allegation of past and possible future harm to the land – limitation of objections to past performance – scope of objections. Jurisdiction of Land Court - powers of Court – statutory limits on jurisdiction – properly made objections – objection process different in EP Act to MRA. Referral process – irregularities in referrals – clear and plain intention – no prejudice to parties. Limitation on objections – MRA objections unable to be added to – MRA objections may be particularised – clear intent of objections – objections to new mining proposals on basis of past history. APPEARANCES: Mr J Trevino of Counsel for the Applicant; Mrs A. English, Solicitor for the Respondent; and Mr P. Prasad, Senior Legal Officer for the Statutory Party. SOLICITORS: Preston Law for the Applicant; Bottoms English for the Respondent; and Legal Services, Department of Environment and Resource Management for the Statutory Party. Background [1] Gary Awarua Donovan (“the miner”) has lodged seven mining lease applications with the Mining Registrar, Mareeba, seeking authority to undertake mining operations on land in the Palmerville area of Queensland. Each application is either wholly, or partly, over pastoral land owned by Stephen Roy Struber and Dianne Rose Wilson-Struber (“the landholders”). The landholders1 have lodged objections to the grant of each mining lease under the provisions of the Mineral Resources Act 1989 (“the MRA”). The landholders have also 1 In some matters, Mr Struber is the only objector, whilst in others both landholders are objectors. -- 4 of 30 -- 5 lodged objections under the Environmental Protection Act 1994 (“the EP Act”) relating to each of the seven mining leases. The landholders` objections with respect to each mining lease relate to the environmental authority application, and for some matters also relate to the draft environmental authority for the application and the conditions included in the draft environmental authority for the application. The Chief Executive, Department of Environment and Resource Management (“DERM”) is a Statutory Party with respect to each EP Act matter. Additionally, the miner has requested that, for each mining lease application, the Land Court determine the compensation payable to the landholders in accordance with s.281 of the MRA. In short, there are three matters before the Court with respect to each mining lease application, making a total of 21 matters all up. [2] Due to issues of commonality, all matters before the Land Court with respect to four of the mining lease applications are being heard together.2 The following table sets out details of each of the 12 matters currently being actively considered by the Court with respect to those four mining lease applications: “Mining Tenure: 20605 File Numbers: MRA137-10 Objection to mining lease application EPA209-10 Objection to Environmental Authority MRA631-10 Referral for determination of compensation Mining Tenure: 20606 File Numbers: MRA352-09 Objection to Mining Lease Application EPA351-09 Objection to Environmental Authority MRA350-09 Referral for determination of compensation Mining Tenure: 20607 File Numbers: MRA354-09 Objection to Mining Lease Application EPA353-09 Objection to Environmental Authority MRA357-09 Referral for determination of compensation Mining Tenure: 20608 File Numbers: MRA356-09 Objection to Mining Lease Application EPA355-09 Objection to Environmental Authority MRA358-09 Referral for determination of compensation” [3] By agreement between the parties, all issues relating to the remaining three mining lease applications have been adjourned to the registry pending the finalisation of all matters relating to the four mining tenures being heard together. [4] Shortly before the commencement of the hearing, the landholders engaged Mrs English, a solicitor of the firm Bottoms English, to represent them. The miner self-represented, assisted by his wife. Mr Prasad, a senior legal officer with DERM, appeared for the Statutory Party. 2 Note that one of these tenures, being mining lease application 20605 was only included in the matters to be heard together by Order of the Court on 3 November 2010. -- 5 of 30 -- 6 [5] The hearing of these matters commenced on 20 November 2009, and included an inspection of the land over which the mining operations are planned. On 25 November, 2009, the hearing was adjourned, part heard. [6] Due to a number of factors, including the complexity of issues which arose during the part- hearing; the desire by the miner to obtain legal representation; the desire of Mrs English to have time to properly prepare her case; the difficulty for the landholders in particular, but also for the miner, in travelling to court proceedings during the lengthy wet season; and proposed overseas travel by the miner, the hearing was unable to resume until 13 September 2010. The next 3 days were entirely taken up with legal issues raised by both the miner (now represented by Mr Trevino of Counsel, instructed by Preston Law) and the landholders relating to various preliminary issues of quite fundamental importance. Both the miner and the landholders made formal applications to the Court to have preliminary issues determined. Affidavit evidence, and oral cross-examination of witnesses relating to these issues, ensued. Unfortunately, it also became clear that, due to a failure of transcription technology, some of evidence from the hearing days undertaken in 2009 had not been transcribed, including important evidence by Mr Wilson, the mining registrar, Mareeba. [7] Regrettably, the legal representatives were not able to reach complete agreement as to the precise nature of the preliminary issues that they sought to have determined by the Court. Mr Trevino, for the miner, made a formal application for orders in the following terms:3 “1. In accordance with section 33 of the Land Court Act 2000 it is declared that: (a) The Environmental Authority Application (‘the relevant application’) filed with the Mining Registrar on 30 October 2008 in all respects complies with the requirements of s 154 of the Environmental Protection Act 1994 (“the EPA Act”), or alternatively; (b) The relevant application substantially complies with the requirements of s 154 of the EPA and such substantial compliance is sufficient for the purposes of the EPA in accordance with s 49 of the Acts Interpretation Act 1954; (c) The respondents’ grounds of objection contained in the Objection Form filed on 5 August 2009 are: (i) The only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the Mineral Resources Act 1989 (“the MRA”); (ii) The only current objections accepted by the administering authority and referred to the Court in accordance with Chapter 5 Part 6 Divisions 6 and 7 of the EPA. 2. Pursuant to r 19(2)(a) and (b)(ii) of the Land Court Rules that the Court decide the following preliminary point or significant issue: “Whether the respondents’ grounds of objection contained in the Objection Form filed on 5 August 2009 pertain only to matters of past performance of the applicant in accordance with s 268(4)(g) of the MRA.” [8] Mrs English for the landholders set out her application in this way:4 3 Application of miner filed by leave on 15 September 2010. 4 Application by the landholders filed by leave on 15 September 2010. -- 6 of 30 -- 7 “APPLICATION BY THE OBJECTORS FOR DETERMINATION OF A PRELIMINARY POINT: 1. Whether the Land Court has jurisdiction to make an objection decision and for the purposes of deciding this question whether:- a. the application for environmental authority lodged by the applicants is valid; and b. whether the notice of decision - draft environmental authority is valid. AGREED FACTS FOR THE PURPOSES FOR DETERMINING PRELIMINARY POINT: 1. An application for environmental authority form citing ML was lodged with the mining registrar on 30 October 2008; 2. An application for mining lease in respect of MLA 20206,20207,20208 were lodged with mining registrar on 30 October 2008 3. A copy of the environmental authority and a copy of mining lease applications were received by statutory party on or about 3 November 2008. 4. A notice - environmental authority dated 4 November 2008 of decision was issued by the statutory party.” [9] At the outset, it needs to be stated that the ‘agreed facts’ referred to by Mrs English were not formally agreed to. [10] Not surprisingly, each party requested time to consider their position with respect to each application. The parties were given time to prepare comprehensive written submissions, which were delivered to the Land Court over the following months pursuant to an agreed timetable. It now falls to the Court to determine, firstly, whether it is appropriate to answer all or any of the preliminary questions, and secondly, if any questions are to be answered, to make such declarations and orders as are necessary. [11] At this point, the first complication arises. In its written submissions filed on 22 November 2010, Mr Prasad for the Statutory Party contends at paragraph 4 that: “The questions for the determination by the Land Court, as to the preliminary points raised by the applicant and the respondent at the hearing on 13 September 2010, are: (a) Whether the Land Court has jurisdiction to hear and determine an objections decision under the EP Act and, for the purposes of deciding this question, whether:- (i) The application for the environmental authority lodged by the applicant is valid; and (ii) The notice of decision for the draft environmental authority (mining lease) is valid3; (b) Whether the respondent’s grounds of objection contained in the objection form filed on 5 August 2009, relates only to matters of past performance of the applicant in accordance with s268(4)(g) of the MRA4. 3 As per the Respondent’s application dated 15 September 2010 4 As per the Applicant’s application filed by leave on 15 September 2010.” [12] By her submissions filed on 29 November 2010, Mrs English for the landholders specifically agrees5 with the questions as formulated by the Statutory Party. Of course, the questions actually put to the Court by the miner and the landholders in their formal applications are more expansive than that. To remove any doubt, the applications, and resulting questions, 5 At paragraph 1. -- 7 of 30 -- 8 that I am considering are those as set out above and as contained in the applications of the miner and landholders filed 15 September 2010. The objects of the Environmental Protection Act 1994 [13] As the questions before the Court relate directly to the EP Act, it is appropriate to begin with an examination of the objects of that Act. [14] The objects of the EP Act are vastly different from the objects of the MRA. While the key object of the MRA is to facilitate the mining of the State’s resources, s.3 of the EP Act states that the object of that Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development). [15] Section 4 of the EP Act provides for an integrated management program, which involves implementing environmental strategies and integrating them into efficient resource management. Accountability is an important element, while s.8 defines “environment” and s.9 defines “environmental value”. Section 14 defines “environmental harm” and how it may be caused by an activity. Section 15 defines “environmental nuisance” as unreasonable interference or likely interference with an environmental value caused by: (a) noise, dust, odour, light; or (b) an unhealthy, offensive or unsightly condition because of contamination; or (c) another way prescribed by regulation [16] In light of the nature of the submissions provided to the Court in this matter I have set out the provisions of s.3 - 6 of the EP Act in full as a reminder to the parties as to the purpose of the EP Act and the manner in which the EP Act seeks to have those purposes fulfilled: “3 Object The object of this Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development). 4 How object of Act is to be achieved (1) The protection of Queensland’s environment is to be achieved by an integrated management program that is consistent with ecologically sustainable development. (2) The program is cyclical and involves the following phases— (a) phase 1—establishing the state of the environment and defining environmental objectives; (b) phase 2—developing effective environmental strategies; (c) phase 3—implementing environmental strategies and integrating them into efficient resource management; (d) phase 4—ensuring accountability of environmental strategies. -- 8 of 30 -- 9 (3) The relationship between each of the phases is shown in the figure appearing at the end of this Act. (4) Phase 1 is achieved by— (a) researching the state of the environment, including essential ecological processes; and (b) deciding environmental values to be protected or achieved by consulting industry, government departments and the community. (5) Phase 2 is achieved by— (a) developing environmental protection policies that, among other things— (i) decide environmental indicators; and (ii) establish ambient and emission standards for contaminants; and (iii) require waste management, including waste prevention and minimisation; and (iv) advise on management practices; and (b) promoting environmental responsibility and involvement within the community. (6) Phase 3 is achieved by— (a) integrating environmental values into land use planning and management of natural resources; and (b) ensuring all reasonable and practicable measures are taken to protect environmental values from all sources of environmental harm; and (c) monitoring the impact of the release of contaminants into the environment; and (d) requiring persons who cause environmental harm to pay costs and penalties for the harm. (7) Phase 4 is achieved by— (a) reviewing the results of human activities on the environment; and (b) evaluating the efficiency and effectiveness of environmental strategies; and (c) reporting publicly on the state of the environment. 5 Obligations of persons to achieve object of Act If, under this Act, a function or power is conferred on a person, the person must perform the function or exercise the power in the way that best achieves the object of this Act. 6 Community involvement in administration of Act This Act is to be administered, as far as practicable, in consultation with, and having regard to the views and interests of, industry, Aborigines and Torres Strait Islanders under Aboriginal tradition and Island custom, interested groups and persons and the community generally.” -- 9 of 30 -- 10 BACKGROUND FACTS [17] Whenever a Court is requested to determine a preliminary point, a significant factor is often the status of the facts. Put simply, the more the facts are contested, the more likely it is that the proper place to resolve the preliminary issue is at a full hearing. On the other hand, where the facts are essentially not in dispute, and it can be demonstrated that significant savings arise by disposing of a preliminary point or points, and the interests of justice for all parties is best served, then it is appropriate for the Court to determine preliminary questions. [18] The state of the facts in this matter as regards the preliminary questions sought by the parties falls somewhere midway between facts essentially not in dispute and other facts which are either disputed or are viewed very differently by the respective parties. [19] I should stress that, in considering the applications currently before me, I have had regard to all the evidence placed before me by the parties, together with the material provided to the Court by the Mining Registrar, Mareeba. The Mining Registrar’s material has been supplied as requested to the parties. [20] On 30 October 2008, the miner attended at the Mining Registrar’s office, Mareeba, and lodged 4 applications for mining leases. The miner also lodged an application for an ‘environmental authority (mining lease) for level 2 mining project’6 (“the environmental application”). The ‘Office Use Only’ box on the front page of each mining lease application bears consistent notations by the mining registrar’s office to the effect that a fee of $806.40 was paid for “4ML’s & 1EPA”7. [21] The environmental application has not been completed in any way in the “Official Use Only” part on its front page. It does however bear a stamp at the top of the page indicating that it was received at the Department of Mines and Energy – Mareeba on 30 October 2009. [22] The Mining Registrar’s Reports with respect to each tenure clearly show that the 4 mining lease applications were assigned the numbers 20605, 20606, 20607 and 20608 respectively. Page 12 of each mining lease application is headed “15. Accompaniments” and relevantly sub-headed at 15.2 “Environmental Protection Agency requirements:”. The listed requirements are for a completed application for an environmental authority and for the prescribed application fee. A box requiring a ‘tick’ appears beside each requirement, and neither box has been ticked in any of the mining lease applications. I further note that none of the relevant boxes have been ticked for any of the part 15 requirements. [23] An important aspect of the case put on behalf of the landholders relates to the answer to Question 3 on page 2 of the environmental application. It appears as follows: 6 See Exhibit GAD-02 to Gary Donovan’s affidavit of 13 August 2010 7 See Mining Registrar’s Report for each ML -- 10 of 30 -- 11 [24] Although somewhat difficult to read, I am satisfied that the handwritten numbers in Question 3 are 20478, 20477, 20476, 20459, 20460, 20461, ML20439, 20440, 20441, 20442, 20564 and 20565. It is noteworthy that no numbers appear in the “Proposed mining tenements” box, and that the mineral ore/minerals and total surface area boxes are also blank. [25] By notice of decision dated 4 November 2008, the Statutory Party advised the miner and the Mining Registrar, Mareeba, of the issue of draft Environmental Authority Number MIC200837408 relating to ML20605, ML20606, ML20607 and ML206088. [26] As regards MLA 20606, MLA 20607 and MLA 20608, certificates of Public Notice were issued by the Mining Registrar on 7 July 2009. It is to be noted that the obligations of the miner pursuant to the EP Act Public Notices are, pursuant to s.211(2)(a) of the EP Act, to be given in the same way, and together with, the MRA Public Notices under s.252B of the MRA. [27] On 3 August 2009, the Mining Registrar received two letters from the objector S. Struber. Attached to the letters is a ‘With Compliments” slip signed by the Mining Registrar. It states as follows: “To Land Court. Original “objection” lodged by the landholder for MLA’s 20606- 20608. The landholder was informed that it was up to the Land Court to accept or reject an objection so I would take it but advised the objections be put on the approved form. The Landholder was given several copies of the approved form and the objections were lodged the next day. The requirements for facsimile contact were added to the Land Court forms.”9 [28] On 7 August 2009 the Mining Registrar made three separate referrals to the Land Court with respect to MLA’s 20606, 20607 and 20608. Each referral was for “Section 265 – Hearing of applications and objections to mining lease. MRA & EA.*”. The objector was stated to be Stephen Struber, and the referral concluded with the words “Mining Registrar’s reports and 8 See Exhibit CB-003 to affidavit of Catherine Birt of 18 November 2009. 9 See Exhibit 2 -- 11 of 30 -- 12 additional information to be forwarded by mail”. No objections were included with any referral. [29] The Mining Registrar subsequently sent three letters dated 14 August 2009 to the Land Court, each in relevantly identical terms, relating to MLA’s 20606, 20607 and 20608. The letters each included a Mining Registrar’s report curiously dated 18 August 2009 and a series of attachments. The report is clearly a ‘duel’ report relating to both the MRA and EP Act. Attachment 7 to the report is the objection for both s.260 MRA and s.216 EP Act. The letters were received by the Land Court on 21 August 2009. [30] Each Mining Registrar’s report with respect to MLA’s 20606, 20607 and 20608 stated that declarations of compliance were lodged by the miner with respect to s.252C MRA on 10 August 2009. No reference was made to a declaration of compliance under s.214 of the EP Act. [31] As regards MLA 20605, a certificate of Public Notice was issued by the Mining Registrar on 15 April 2010. Again, it is to be noted that the obligations of the miner pursuant to the EP Act Public Notices are, pursuant to s 211(2)(a) of the EP Act, to be given in the same way, and together with, the MRA Public Notices under s.252B of the MRA. [32] On 25 May 2010 the Mining Registrar made a referral to the Land Court with respect to MLA 20605. This referral was for “Section 265 – Hearing of applications and objections to mining lease. ONE OBJECTION”. No reference was made to an EP Act referral, however attached to the referral was a copy of the objection. The objector was stated in the referral to be Stephen Struber and Dianne Wilson-Struber. The objection attached to the report clearly makes reference to both MRA and EP Act objections. [33] The Mining Registrar subsequently sent a report dated 2 June 2010 to the Land Court relating to MLA 20605. The report is again clearly a ‘duel’ report relating to both the MRA and EP Act. Attachment 6 to the report is the objection for both s.260 MRA and s.216 EP Act. The letter was received by the Land Court on 7 June 2010. [34] The Mining Registrar’s report with respect to MLA 20605 stated that declarations of compliance were lodged by the miner with respect to s.252C of the MRA and s.214 of the EP Act on 25 May 2010. Analysis of the Evidence [35] To put it mildly, none of these matters have progressed through the administrative systems of government smoothly. To begin with, although all four mining lease applications were filed together, for some reason MLA 20605 was delayed for a very lengthy period. This delay has resulted in material being provided to the court which, at least on first blush, appears inconsistent. In particular, the important affidavit evidence of Ms Birt for the -- 12 of 30 -- 13 Statutory Party, affirmed 18 November 2009, gives the impression that the draft environmental authority only relates to MLA’s 20606, 20607 and 20608. A close examination of the attachments to her affidavit however does reveal reference to MLA 20605. She also clarified the matter during cross-examination. Although I find her evidence to be generally persuasive, her credibility was shaken somewhat by this omission, particularly in circumstances where the manner in which the environmental application was made and filed called upon Ms Birt to exercise reasoned discretion as to, amongst other things, what mining tenures were actually included in the environmental application. [36] I draw particular attention to the environmental authority application which has mining lease numbers listed in the current mining tenement box that do not relate to the current mining leases (question 3) and the proposed mining lease box which was left blank. [37] Ms Birt gave oral evidence that the proposed mining lease box is left blank because the applicant does not know what the proposed mining leases are until the applications have been processed by the DME and DERM.10 [38] Mr Gary Donovan (the applicant) gave evidence that he mistakenly listed mining tenements in question 3 that already had environmental authorities and he had misinterpreted the question and listed them in error. [39] It is the contention of the Statutory Party that the explanatory notes to the Environmental Protection and Other legislation Amendment Bill 2000 states that it was the intention of the government to obtain simultaneous lodgement of both the ML and EA applications and therefore it would not be possible to fill in the proposed mining lease box on the form 6. The error in Question 3 did not relate to this submission. Even if the legislative intent to allow simultaneous lodgement as pressed by Mr Prasad is accepted, then quite clearly the miner was still in a position to properly complete those parts in Question 3 requiring details of the mineral ore/minerals to be mined and the total area, and surface area, covered by the proposed mining operation. The issue of the area of the mining operation becomes more relevant when a close examination is had of the various areas applied for; the areas included in the draft environmental authority; and the areas actually sought at time of the public notification. [40] Additionally, regard must be had to the failure by the miner to complete part 15 on page 12 of the environmental application. The question must be asked – is it the case that the administrating body simply guessed what the correct answers were/should be, and proceeded with the application? If this is what occurred, is it reasonable? 10 Transcript Day 5, p.4-5 - From Statutory Party’s Outline of Submissions on the Preliminary Issue, 22 November 2010, page 8. -- 13 of 30 -- 14 Preliminary Issues, Application: [41] The first issue to consider is whether there is non-compliance in the referral of the applications; and whether the mistakes made on the environmental authority application form by the miner cause prejudice or unfairness to the landholders. [42] As submitted by Mr Trevino for the miner, substantial compliance in accordance with s.49 of the Acts Interpretation Act 1954 (AIA) is acceptable in certain circumstances. [43] The entire s.49 reads: “49 Forms (1) If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient. (2) If a form prescribed or approved under an Act requires- (a) the form to be completed in a specified way; or (b) specified information or documents to be included in, attached to or given with the form; or (c) the form, or information or documents included in, attached to or given with the form, to be verified in a specified way; the form is not properly completed unless the requirement is complied with. (3) If - (a) a form (form 1) may be prescribed or approved under an Act for a purpose or 2 or more purposes; and (b) another form (form 2) may be prescribed or approved under the Act or another Act for the same or another purpose or purposes; then, if separate forms 1 and 2 are prescribed or approved, a combined form 1 and 2 may be prescribed or approved and used for the purpose or all the purposes. (4) If, under an Act, a form is required or permitted to be filed with, or served on, a person (whether the expression 'file', 'lodge', 'deliver', 'give', 'notify', 'send' or 'serve' or another expression is used), the form may be filed with, or served on, another person under arrangements made between the persons. (5) If a form may be prescribed or approved under an Act for a purpose or 2 or more purposes, the form may only require information or documents to be included in, attached to or given with the form that are reasonably necessary for the purpose or 1 or more of the purposes. Example 1- A prescribed or approved form may not require the provision of personal information irrelevant to a purpose for which the form is required. Example 2- A prescribed or approved form may not require the provision of personal information that has some relevance to a purpose for which the form is required, but is excessively intrusive to personal privacy.” -- 14 of 30 -- 15 [44] Substantial compliance is not acceptable where prejudice or unfairness to the other party has occurred. Each party should have a fair opportunity to be heard: this is a key aspect of natural justice. For an objector or a respondent this means a fair opportunity to respond or a fair opportunity to object. This is also called the fair hearing rule. In this case the landholders’ livelihood, in terms of the environmental integrity of their grazing land, is at stake and a right to be heard is a fundamental right.11 [45] As regards the EP Act objections, it is open to some doubt as to whether the landholders have objected to those mining leases that were listed on the application form; those that were advertised in the public notice; or those tenures that were proposed. [46] What is clear is that serious allegations of past and possible future harm to the land on which the respondent has a commercial grazing operation, have been made (see the affidavit of Mr Struber sworn on 9 September 2010, and tape recording from the Court inspection of the property). A determination on these allegations is not relevant to this preliminary determination. However, at a hearing, it is important that the Court consider all environmental objections and uphold the objects of the EP Act. [47] While the allegations themselves are not relevant to the preliminary determination the following facts are relevant: [48] The fact that the mining tenements were listed incorrectly was the fault of the miner and this was not directly rectified by the Statutory Party. The opportunity to object in relation to tenures with consistent and determinative descriptions was arguably denied. The question must be asked, has this caused prejudice to the respondent? [49] When a plain reading is had of the objections relating to MLA’s 20606, 20607 and 20608, it is clear that the landholder made specific to those tenures on page 2 of the objection. Those same tenures were also specifically referred to in one of the letters dated 31 July 2009. Despite the submissions of Mrs English, I am satisfied that the landholders were aware of the mining tenements to which they were objecting on each occasion. However, that is not a complete answer to the situation. I remain in some doubt as to what the landholders actually had been provided with pursuant to s.211(2)(a) EP Act, which invokes the provisions of 2.252B of the MRA. In short, from an EP Act perspective, to what were the objectors actually objecting? [50] Taking the miner’s statutory declaration of compliance at face value, what must have been provided to the landholders was a copy of the poorly completed application for an environmental authority. However, I have no evidence before me as to whether or not the 11 See for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Pett v Greyhound Racing Association Ltd [1969] 1 QB 125, Lord Denning made some pertinent comments in the this decision about the right to be heard where livelihood is at stake. These comments are relevant, although his statements on requirements for an oral hearing have been qualified by recent case law. -- 15 of 30 -- 16 draft environmental authority was provided to the landholders. I also have no submissions as to whether or not provision of the draft environmental authority to the landholder is required in order for a miner to properly comply with s.221(2)(a) of the EP Act. However, given that the draft authority is a key instrument that objection can be made to, it would indeed be highly surprising if the legislation were to be interpreted so that miners were not required to give the draft environmental authority to the landholders. [51] In my final determination of the nature, scope and intent of the environmental objections made by the landholders, what the landholders actually had before them during the objection period is of critical importance. If they had both the environmental application and the draft environmental authority, I am in absolutely no doubt that, viewed objectively, the landholders would be confused as to the interaction as between those two documents. That confusion, one would expect, would cause the landholders reason to make specific reference to the inconsistencies in their objection, or at the very least would have provided the landholders with the opportunity to make objections of that nature. However, if the landholders only had the application for environmental authority, then the actual terms and scope of the draft environmental authority would be unknown to them, and they could not be expected to make full and proper objections to the draft. [52] To take this point further, I refer again to the objects of the EP Act. It must be remembered that applications for mining on the landholders’ land occur independently of the will of the landholders. This is because of the provisions of the MRA, consistent with its objects, which make the mineral resources of the State available for exploitation. Indeed, this economic activity is of high importance to the Queensland economy. While public notification of a proposed mining operation allows any entity to object to a proposed mining tenement, it is, essentially, up to intending objectors, on reading the public notification, to obtain access to the application documentation from the Mining Registrar’s office. However, this situation must not, in my view, be confused with the special entitlements given to owners of land subject to the proposed mine; the holders of exploration permits or mineral development licences over the land, or the local authority12. Under s.252(B)(c) of the MRA, they are to be provided with a copy of the ‘certificate and the application’. Further, pursuant to s.252(B)(2)(b), the application for the mining lease ‘includes any additional document about the application given by the applicant to the mining registrar’. Clearly, it is the intent of the MRA for landholders to be provided with the material that they require to properly make any objection that they choose to make. 12 See s.252B(1)(c) MRA -- 16 of 30 -- 17 [53] Applying s.211(2)(a) of the EP Act, I am in no doubt that the EP Act requires the miner to give the landholders a copy of both the application for the environmental authority and the draft environmental authority issued by the administrating authority. [54] Absent specific facts as to what the landholders were actually provided with by the miner, I am unable to fully determine this aspect of the preliminary point. Jurisdiction [55] One question before the Court is whether the Land Court has jurisdiction to decide validity of the EA application under subs.222 and 223 of the EP Act.13 [56] It is the miner’s submission that the Land Court’s jurisdiction stems from the referral, not from the application itself. However, it is the application that is referred. The Land Court referral is what lodgement is to a party in a normal civil application. Whether lodgement of an application or referral of an application has occurred; in either case, it is the application the Court is concerned with. Lodgement and referral are usually only significant where there are issues of statutory time limits to be considered. [57] As conceded by the miner the Court considers validity and compliance when coming to its ultimate recommendation per s.269(4)(a) MRA and 223(a) EP Act.14 [58] Section 223 of the EP Act provides as follows: “223 Matters to be considered for objections decision In making the objections decision for the application, the Land Court must consider the following— (a) the application documents for the application; (b) any relevant regulatory requirement; (c) the standard criteria; (d) to the extent the application relates to mining activities in a wild river area—the wild river declaration for the area; (e) each current objection; (f) any suitability report obtained for the application; (g) the status of any application under the Mineral Resources Act for each relevant mining tenement. Part 2 General provisions for obtaining environmental authority (mining activities) Division 1 Applications Subdivision 1 General provisions about applications 13 From Statutory party’s Outline of Submissions on the Preliminary Issue, 22 November 2010, page 5. 14 From applicant’s outline of submissions, 15 November 2010 at page 7. -- 17 of 30 -- 18 153 Who may apply (1) A person may apply for an environmental authority (mining activities) only if the person is the holder of, or the applicant for, a relevant mining tenement. Editor’s note— See also section 303 (Restrictions on environmental authority or transfer taking effect). (2) This section is subject to section 156. 154 General requirements for application (1) An environmental authority (mining activities) application must— (a) be made to the mining registrar in the approved form; and Note— Because of different assessment processes, there may be different approved forms for applying for level 1 mining projects and level 2 mining projects. (b) state whether the application is for a code compliant or non-code compliant authority; and (c) if the application is for a code compliant authority— (i) state the type of the proposed environmental authority (mining activities); and (ii) certify that— (A) all mining activities proposed to be carried out under the environmental authority comply with the criteria prescribed under section 151 for mining activities under that type of authority; and (B) the applicant can, in carrying out the mining activities, comply with the relevant standard environmental conditions for the code compliant authority. Note— A subsequent failure to comply with any of the standard environmental conditions may result in the commission of an offence or in action to amend, suspend or cancel the environmental authority. See sections 165, 292(2)(a), 293(2)(a) and 480(4). (d) be accompanied by the fee prescribed under a regulation. (2) If the application is for a non-code compliant authority, the application must be supported by enough information to allow the administering authority to decide the application. Editor’s note— For when the other information must be given, see sections 187 and 201 (Environmental management plan required). (3) The requirements under this section are, to the extent to they are relevant, the application requirements for the application. (4) If the application is for a code compliant authority and the application complies with subsection (1), it is a code compliant application. (5) A non-code compliant application is any application for an environmental authority (mining activities) that is not a code compliant application. -- 18 of 30 -- 19 Subdivision 2 Applications for mining projects 155 Single application required for mining project (1) This section applies to a person who may apply for an environmental authority (mining activities) for mining activities proposed to be carried out as a mining project. (2) The person may only make a single application for 1 environmental authority (mining activities) for all mining activities that form the project. (3) The application must— (a) comply with subdivision 1; and (b) state— (i) each type of environmental authority (mining activities) applied for; and (ii) whether each stated type is proposed to be a code compliant or non-code compliant authority. (4) If the administering authority grants the application, it may issue— (a) 1 environmental authority (mining activities) for all the activities (a project authority); or (b) 2 or more environmental authorities (mining activities) for the activities. (5) A project authority must— (a) state each type of environmental authority (mining activities) that forms the project authority; and (b) identify the conditions applying to each type. (6) For applying parts 7 to 13 to a project authority, each type of environmental authority (mining activities) that forms the project authority is taken to be an environmental authority (mining activities) of that type. 156 Single environmental authority required for mining project (1) This section applies if an environmental authority (mining activities) has been granted for a mining project. (2) The holder of the authority can not apply for a separate environmental authority (mining activities) for an additional mining activity proposed to be carried out as part of the mining project. (3) Subsection (2) applies whether or not the additional activity is proposed to be carried out under another mining tenement as part of the mining project. (4) This section does not prevent the holder from applying to amend or replace the authority.” [59] Accordingly, under s.223 of the EP Act the Court in the course of an objections decision hearing must consider, in relation to an objections decision, among other criteria, the application documents for the application and the status of any application under the MRA for each relevant mining tenement. The key point however must be, in regards to the particular objections decision hearing, what is properly before the court in order to trigger the operation of s.223? The simple answer must be that it is the properly made objection, -- 19 of 30 -- 20 which is required, pursuant to s.217(1)(f) of the EP Act, to include the ‘grounds of the objection and the facts and circumstances relied on in support of the grounds’. Objections under the MRA and EP Act [60] Were this preliminary point concerned solely with the scope of objections pursuant to the MRA, the answer would be clear. As Justice Mackenzie said in ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp15: “When the legislative history of what is now s 268 is taken into account, subsection 268(3) should be treated as a limitation of the more general words in subsection 268(2) as to how the tribunal goes about its functions. The consequence of this is that the tribunal's right to hear such persons and inform itself in such manner as it considers appropriate under subsection 268(2) is subject to subsection 268(3). The limitation is that, whatever else the tribunal may do to inform itself of what it is required to satisfy itself, it is precluded from entertaining an objection by an objector to an application or any ground thereof, or any evidence in relation to a ground where there has not been an objection duly lodged in respect of a matter which an objection subsequently wishes to agitate.” [61] Justices Davies and Mullins made strong statements in ACI of like effect to what Mackenzie J said above. As Mullins J put it16: “That has the result that at the hearing pursuant to section 268(1) of the MRA, the Tribunal can entertain an objection and receive evidence from the respondent which relates only to a ground in its duly lodged objection. The making of submissions by an objector in relation to an issue equates to the entertaining of an objection on that issue by the Tribunal.” [62] Although ACI was decided at a time when jurisdiction under s.268 of the MRA was exercised by the Land and Resources Tribunal, the same specific legislative provisions of the MRA apply as regards the Land Court. [63] These provisions were again considered by the Court of Appeal in Lee v Kokstad Mining Pty Ltd17. In that case, Jerrad JA noted18: “Section 268 has other provisions, but none relevant to this appeal. The quoted subsections were considered by this Court in ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation. This Court held that s 268(3) was to be construed as qualifying s 268(2), and that accordingly the LRT was precluded from hearing submissions or evidence from an objector to the grant of a mining lease on a matter not raised in its duly lodged objection. The decision in ACI Operations v Quandamooka Lands Council Aboriginal Corporation has the effect, as put by Mackenzie J in that matter, that the Tribunal’s right to hear such persons and inform itself in such a manner as it considered appropriate under s 268(2) is subject to the limitation in 268(3) that, whatever else the Tribunal may do to inform itself of what it is required to satisfy itself, it is precluded from entertaining an objection by an objector to an application or any ground thereof, or any evidence in relation to a ground, where there has not been an objection duly lodged in respect of a matter which an objector subsequently wishes to agitate.” [64] Even when considering objections under the MRA, it is important for the Court to bear in mind the distinction between objections on the one hand and particulars of those objections 15 [2001] QCA 119 at p.14 16 At [60] 17 [2008] 1 QDR 65 18 At [9] -- 20 of 30 -- 21 on the other. This distinction was clearly explained by Court of Appeal President Mcmurdo, with whom the other members of the Court agreed, in the case of Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors19: “As I am proposing there will be a re-hearing, the ground of appeal relating to the Tribunal's refusal to allow QCC to amend the particulars of its objection should also be determined so that the boundaries of any rehearing are clarified. Section 268(3) Mineral Resources Act provides that the Tribunal: "(3) … shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application." The Environmental Protection Act provides for amendment to an objection only within the objection period, which it seems had expired at the time of the filing of QCC's application to amend its particulars on 24 January 2007. QCC's application was not, however, to amend its objection but to amend the particulars of its objection. In any case, as senior counsel, Mr D J S Jackson QC, who appeared with Ms Brown for Xstrata, rightly conceded, the Tribunal had wide discretionary powers under s 49 Land and Resources Tribunal Act and was not prevented from allowing the amendment to the particulars by s 268(3) Mineral Resources Act or by any provision in the Environmental Protection Act. The function of particulars is to limit the issues of fact being investigated, not to modify or alter the issue between the parties: Mummery v Irvings Pty Ltd. Had QCC been successful in its application to amend its particulars from requiring Xstrata to avoid, reduce or offset greenhouse gas emissions related to the proposed mine by 10 per cent rather than the particularised 100 per cent, it would not have significantly changed the case that Xstrata had to meet. The proposed amendment to the particulars involved a question of degree and amount; if anything it narrowed rather than widened, but certainly did not alter, the issue for determination between the parties. Mr Jackson contends that the proposed amendment to the particulars would have required Xstrata to call different evidence as to the changed cost of meeting the more limited conditions sought by QCC. The evidence at the hearing was that the costs of carbon offsets were calculated in terms of the cost per tonne of CO2 produced. Xstrata's response to the proposed amendment of the particulars would seem to involve its relevant expert witnesses in relatively straight-forward mathematical recalculations and minor consequential addenda to their reports. On the material before the Tribunal and this Court, QCC should be allowed to amend its particulars in the terms sought at first instance.” [65] I have recently considered the specific operation of subs.217-219 of the EP Act in Gregcarbil Pty Ltd v Backus & Ors20. It is appropriate to quote extensively from that extempore decision21: “Section 217(3) is under the heading of dealing with acceptance of objections and states as follows: "The authority may accept a written objection, even if it is not a properly made objection". Acting under the authority of s.217(3), the administering authority accepted the objection by Gregcarbil and thus file EPA225-11 came into existence. Now, also in recent weeks, the ownership of lot 96 transferred from the Schmidts to Mr William Crowther. Mr Crowther has appeared at the directions hearing today and indicated his desire to be heard with respect to these proceedings. The manner in which the Court is able to proceed to its objections hearing and decision is set out in s.219 of the EP Act, which deals with referrals to the Land Court. To begin with, I should stress that there hasn't 19 [2007] QCA 338 at [49] – [51] 20 [2011] QLC 0042 21 From [7] to [24] -- 21 of 30 -- 22 been any objections as such made by Mr Crowther for the administering authority to consider under s.217(3) and, in real terms, with the hearing being so close, I expect there would be difficulties in proceeding under s.217(3) at this late stage. However, s.219(4) of the EP Act states as follows: "The parties to a proceeding are as follows: (a) the authority; (b) the applicant; (c) each objector for the applicant, and; (d) anyone else decided by the Land Court". On the first reading of that section, it would appear that there is a broad discretion given to the Land Court, as to who can be heard as a party to proceedings under the EP Act relating to environmental authorities for mining lease applications. There is one confusing factor in the legislation which I should make reference to. The referral section is s.219(1), which states as follows: "If there is a current objection relating to the application when the objection period for the application ends, the administering authority must, within 10 business days, refer the application to the Land Court for decision under this subdivision (the objections decision)". There is tension between s.219(1) and s.217(3). Clearly, if the situation arose where there was no properly made objection, for instance, during the objection period, but an objection was received, say, one day outside of the period, in circumstances such as the recent floods that have just hit Queensland, I can well imagine why the administering authority would agree to accept the objection out of time in those circumstances under s.217(3). Technically, a strict reading of s.219(1) only relates to objections received within the objection period. In my view, such a strict reading of the Act does not give utility to the purposes of the Act, nor does it give utility to the obvious intent of s.217(3). In the hypothetical circumstances that I have just outlined, I would have no doubt that the Court would proceed under s.219 to hear an objection received late under extenuating circumstances by the administering authority when the authority chose to accept that objection. In the case at hand, there are, of course, properly made objections which have been received within time, so there was a proper referral to the Court, so the Court has parties as specified by the legislation, being the authority, the applicant and each objector to the application. In my view, consistent with my reasoning from the hypothetical reading of the matter, the only logical sense that can be given to s.217(3) in the circumstances currently before me, is to accept the objections by Gregcarbil as an objection for the application, pursuant to s.219(4)(c) of the EP Act. That deals with the position of Gregcarbil, who falls into the rather unique position of being both an applicant and an objector to this same environmental authority. While this is unusual, it does have the benefit that the parties, including those with no legal representation, will have clear material before them to show exactly what areas of the environmental authority application and draft environmental authority Gregcarbil agrees to and those which it takes issue with. It will also make clear the duties and responsibilities of the administering authority, with respect to the draft environmental authority that is issued. So, in a round about way, it does assist the parties in understanding the various positions that each may hold. I now turn to the situation of Mr Crowther, who has made an oral application today to be made an objector to these proceedings. I do not have any power under s.217 of the EP Act, on my reading of s.217, to receive late objections or to accept any party as an objector to the environmental proceedings. However, s.219(4)(d) of the Act, certainly does give the Court wide discretion to determine who may be a party to the proceeding. In the unusual circumstances of this case, and taking into account the provisions of s.7 Land Court Act which require the Court to act with as little technicality as possible for the purposes of reaching a just conclusion to the matter, in my view, it is appropriate to allow Mr Crowther to be included as a party to the environmental objections. -- 22 of 30 -- 23 In referring to the environmental objections, just to be clear, I am referring to the environmental objections relating to EPA606-10 and EPA225-11. In simple terms, it is appropriate to order that both EPA files be heard together and the parties in each matter also be parties in the other matter. Accordingly, that means that the parties to both EPA606-10 and EPA225-11 are Gregcarbil, as applicant, the authority, Mr Backus, Mr Schmidt and Mr Crowther. In very technical terms, in some of these matters, some of the parties have the status of an objector and in other respects they have the status of being a party under s.219(4)(d), but in the practical sense of the hearing of the matter, it is my view that there is no difference and little is to be achieved by going into too great a technicality as to the identification of the parties, further than how I have identified them at this point. I consider it appropriate that the two environmental objection matters now be heard together with the mining lease application objections, but I do so with one rider, which must be taken note of by Mr Crowther, and that is that the MRA is a very prescriptive Act when it comes to those persons who have a right of objection and a right to be heard under the MRA objections. The MRA does not have a provision like s.219(4)(d) in it for its objection process. So, Mr Crowther will not be able to be a party to the MR objections and therefore will not be able to speak relating specifically to the application for the mining lease, but will be able to speak in an unfettered way, subject to other orders I make regarding the provision of evidence, with respect to all matters relating to the environmental authority for the mining lease application. I note, of course, that there are Court of Appeal authorities as to the status of duly lodged objections to mining lease applications and when those objections may be heard by the Court and the timing in which those objections may be made. There are also numerous decisions of both the Land and Resources Tribunal, which had jurisdictions in these matters between the years 2000 and 2007, and the Land Court since it assumed jurisdiction in September 2007 to the present, on these same issues. I wish to make it clear that the decision that I am making in this matter relates specifically to the provisions of the EP Act which are vastly different in the treating of objections and the right of objections and for parties to the Court than the other decisions that have been handed down as to the right of objectors in mining matters, which have all been decisions under the MRA provisions.” [66] Taking into account the authorities referred to above, the situation with respect to the landholders’ objections under the EP Act become clear. A properly made objection under the EP Act cannot be amended after the last objection day22. However, the administrating authority has power to accept an objection ‘even if it is not a properly made objection’23. This is a power exercisable by the administrating authority and not the Land Court. Accordingly, as regards the letters of 31 July 2009, it was up to the administrating authority to decide if they should be accepted even though not in the approved form. By referring those letters to the Land Court, in my view the delegate for the administrating authority has impliedly accepted those letters as objections. Importantly, those letters do not have the status of ‘duly made objections’. However, they are none-the-less to be considered by the Land Court at the objections decision hearing. [67] For completeness, I should add that, even if I am wrong in my presumption that the delegate has impliedly accepted the letters as objections by referring them to the Land Court, in my 22 See s.218 EP Act 23 See s. 217(3) EP Act -- 23 of 30 -- 24 view the letters are consistent with, and complement, the properly made objections made by the landholder, and, taking into account s.7 of the Land Court Act, and in light of the Court of Appeal’s comments in Queensland Conservation Council as to particulars, the letters of 31 July 2009 particularise the properly made objections and may therefore be considered by the Court. Irregularities in Referral of Objections to the Court [68] As set out in detail in the facts earlier in this decision, there are issues regarding the referrals made by the Mining Registrar to the Land Court. Referrals are dealt with in s.219 of the EP Act, which is in the following terms: “219 Referral to Land Court (1) If there is a current objection relating to the application when the objection period for the application ends, the administering authority must, within 10 business days, refer the application to the Land Court for a decision under this subdivision (the objections decision). (2) The referral must be made by filing with the registrar of the Land Court— (a) a notice, in the approved form, referring the application to the Land Court; and (b) a copy of the application documents for the application and each current objection. (3) The referral starts a proceeding before the Land Court for it to make the objections decision. (4) The parties to the proceeding are as follows— (a) the authority; (b) the applicant; (c) each objector for the application; (d) anyone else decided by the Land Court. (5) The authority must, within 10 business days after making the referral— (a) give the applicant a copy of the notice and each current objection; and (b) give each objector a copy of the notice.” [69] Mrs English for the landholders has suggested that the irregularities in the referral processes are such that the Court does not have jurisdiction to even consider the EP objections24. [70] Were a strict, technical approach to be taken to the referral process, Mrs English’s submissions would have some force. Certainly, the issue of the Land Court having jurisdiction to hear and determine any matter is one which must always be carefully 24 See paragraphs 45-73 of the landholders’ outline of submissions, 29 November 2010. -- 24 of 30 -- 25 considered by the Court. As I pointed out in Slater and Ors v Wangan and Jagalingou People25: “The Land Court, like the Land and Resources Tribunal, only has such jurisdiction as is specifically conferred upon it by statute. Section 32J of the Land Court Act does not operate in any way to extend the jurisdiction of the Land Court. What it does, is clearly state that the Land Court when it is exercising a matter over which it has jurisdiction, has, in the specific circumstances as set out in s.32J, all of the powers of the Supreme Court available to it in order for it to exercise that jurisdiction.” [71] In my view, there is no doubt that the Land Court has jurisdiction to hear EP Act objections pursuant to s.219 of the EP Act. It is accordingly a question for the Land Court to determine in any relevant matter if it has received a referral which triggers s.219. When making any such determination, the Land Court must bear in mind the oft quoted provisions of s.7 of the Land Court Act already referred to in this decision. [72] As regards the referrals made by the Mining Registrar on 7 August 2009, it is clear that the Mining Registrar made intentional reference to both MRA and EP Act objections sufficient to enliven the Court’s jurisdiction. The fact that the actual objections were not received with the referrals does not alter this position. [73] Likewise, the referral on 25 May 2010 includes both MRA and EP Act objections. It is true that the Mining Registrar did not in this instance make any reference in the referral to EP Act objections, and that the referral form does not make any specific reference to the referral of EP Act objections. However, in this instance the Mining Registrar did forward the objection with the referral, and a clear reading of the landholders’ objection shows EP Act objections are included. Limiting of Objections to issues of Past Performance [74] Mr Trevino for the miner seeks to limit the landholders’ objections to issues relating to past performance. [75] Evidence of past performance of an applicant over an area is often considered at an objections hearing. In particular past performance is considered where conditions are recommended by the Court as to the future conduct of the miner when the grant of a mining lease is recommended.26 Specifically, s.269(4)(g) of the MRA lists past performance as one of the factors that must be considered by the Court when making a recommendation about a grant. In EA objections, past performance can be relevant in the same manner, and there is nothing in the EP Act to limit it as a ground for a current objection, it is self evident that the Court would consider past performance27. 25 [2011] QLC 0044 at [12] 26 Burtenshaw & Ors v Dunn [2010] QLC 0070; De Lacey & Anor v Kagara Pty Ltd [2009] QLC 0077. 27 See s.223 EP Act. -- 25 of 30 -- 26 [76] Of course, Mr Trevino is not seeking to exclude the objections, but rather limit them to only issues of past performance. After referring to authorities including those already referred to above, Mr Trevino pointed out, correctly in my view in so far as the MRA is concerned, that ‘… the Land Court is limited to considering only each current objection and is precluded from considering any other objections made after the objection period ends.’ 28. [77] Mr Trevino went on to submit at paragraph 22, page 16 of his submissions as follows: “Clearly, the grounds of objection duly made and lodged advance issues concerning the past performance of the applicant. Specifically, the grounds of objection seem to relate to complaints about previous mining activities of the applicant upon Palmerville Station. That the grounds of objection duly lodged are so confined was confirmed by the respondents’ legal representative on the first day of the hearing (see transcript of Proceedings, Day 1, page1-4, ln10-ln30). Such a construction of the grounds of objection is also supported by the affidavit of Steven Struber sworn 9 September 2010 at paragraphs [1] and [2].” [78] In stark contrast are the submissions of Mrs English for the landholders, at paragraphs 96 and 97, where she said: “It is submitted that the only logical inference that can be drawn from the grounds and facts and circumstances supporting them stated in the objection (including the box ticked for the EA application) is that the objector is objecting to both the grant of the mining leases and the environmental authority application because he is worried about how the applicants will behave in the future in respect of land applied for based on their experience of the past history of the Applicants. The objections are not made in vacuo. They have to relate to something and that something is the application for environmental and the mining lease applications that refer to the land over which the tenements are sought. Thus to confine the objections in the manner sought by the Applicants is to unnecessarily, and in the Respondents submission unfairly, to past mining activities of the Applicant (sic).” [79] I find myself in complete agreement with the submissions of Mrs English. Nothing in the material referred to by Mr Trevino is inconsistent with Mrs English’s interpretation. Properly construed, and looking specifically at the restrictive provisions relating to objections under the MRA, in my view the properly made objections with respect to MLA’s 20606, 20607 and 20608 must be read as referring to those mining lease applications; that is, the landholder objects on the basis that the past performance of the miner shows that the miner will: (1) fail to contain mined material on the MLA application areas; (2) fail to comply with the environmental code of compliance for mining leases on the MLA application areas; (3) cause major erosion problems on the MLA application areas; and (4) provide very poor care and management of the environment and land on the MLA application areas. Determination of preliminary Questions [80] The manner in which the miner and landholders have sought answers to different preliminary questions has added to the complexity of this matter, and not aided the 28 See Miners submissions, paragraph 21 (sic) page 16 -- 26 of 30 -- 27 determination of the final orders that are to be made, even given the various conclusions I have arrived at above. [81] In this regard, it is pertinent to reflect on paragraph 42 of the landholders submissions. Mrs English had this to say: “If the Respondents position is regarded as schizophrenic in terms of an assessment under Section 7 then it is hoped that these submissions will resolve that dilemma by demonstrating that there is such a body of non-compliance with not only form but regulatory requirements such as to deprive the court of its jurisdiction to deal with the case. In the alternative then, if jurisdiction does exist with referrals, then the court would be guided by the principles set out in section 7.” [82] In many respects, despite the best efforts of Mr Trevino; Mrs English; and Mr Prasad, the manner in which the hearing days in 2010 unfolded are perhaps best described as somewhat schizophrenic. The fact that key transcript from the opening hearing days in 2009 have been lost in the cyber world, combined with the change in representation of the miner after the hearing had commenced, merely combine to make a difficult situation worse. [83] I will deal first with the orders sought by the miner. As regards the declarations sought by the miner, that is that: “(a)The Environmental Authority Application (‘the relevant application’) filed with the Mining Registrar on 30 October 2008 in all respects complies with the requirements of s.154 of the Environmental Protection Act 1994 (“the EPA Act”), or alternatively; (b) The relevant application substantially complies with the requirements of s.154 of the EPA and such substantial compliance is sufficient for the purposes of the EPA in accordance with s.49 of the Acts Interpretation Act 1954; (c) The respondents’ grounds of objection contained in the Objection Form filed on 5 August 2009 are: (i) The only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the Mineral Resources Act 1989 (“the MRA”); (ii) The only current objections accepted by the administering authority and referred to the Court in accordance with Chapter 5 Part 6 Divisions 6 and 7 of the EPA.” ANSWER: I decline to make the declarations sought in (a) and (b). As regards (c)(i), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the MRA. As regards (c)(ii), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only properly made objections referred to the Court in accordance with s.217(2) of the EP Act. It is further declared that the two letters -- 27 of 30 -- 28 dated 31 July 2009 are objections pursuant to s.217(3) of the EP Act. [84] As regards the preliminary point or significant issue sought to be decided by the miner, vis: “Whether the respondents’ grounds of objection in the Objection Form filed on 5 August 2009 pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.” ANSWER: The landholders grounds of objection filed on 5 August 2009 do not pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA. [85] I now turn to the preliminary points as formulated by the Statutory Party, which effectively repeat those sought by the landholders. As regards question (a), which asks: “Whether the Land Court has jurisdiction to hear and determine an objections decision under the EP Act and, for the purposes of deciding this question, whether:- (i) The application for the environmental authority lodged by the applicant is valid; and (ii) The notice of decision for the draft environmental authority (mining lease) is valid;” ANSWER: The Land Court has jurisdiction to determine the objections referred by the Mining Registrar under the EP Act on 7 august 2009 and 25 may 2010. I decline to otherwise answer the question. [86] For completeness, as regards question (b), which asks: “Whether the respondent’s grounds of objection contained in the objection form filed on 5 August 2009, relates only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.” ANSWER: The landholders grounds of objection filed on 5 August 2009 do not pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA. Closing Remarks [87] In closing, it would be remiss of me not to refer to the difficulty in formulating the decision in this matter, and the invaluable assistance given me by the Land Court’s former research officer, Saskia Vanderbent, who recently took a promotion from the Court to Crown Law. I wish her well. [88] The decision in this matter was first drafted in February/March 2011. It has, however, undergone many revisions until it has finally reached this point which I am content with. -- 28 of 30 -- 29 [89] It is my desire that these matters now proceed to a final hearing and determination as quickly as possible. Accordingly, these matters will be set down for Review and Directions in Brisbane on Thursday, 11 August 2011, at 2:30 pm. Parties not present in Brisbane may attend by telephone. The parties are directed to attend the Review and Directions with a timetable aimed at concluding the hearing of these matters over 5 days commencing 24 October 2011 in Mareeba/Atherton or Cairns or other suitable location. Orders: 1. As regards the declarations sought by the miner, that is that: “(a)The Environmental Authority Application (‘the relevant application’) filed with the Mining Registrar on 30 October 2008 in all respects complies with the requirements of s.154 of the Environmental Protection Act 1994 (“the EPA Act”), or alternatively; (b) The relevant application substantially complies with the requirements of s.154 of the EPA and such substantial compliance is sufficient for the purposes of the EPA in accordance with s.49 of the Acts Interpretation Act 1954; (c) The respondents’ grounds of objection contained in the Objection Form filed on 5 August 2009 are: (i) The only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the Mineral Resources Act 1989 (“the MRA”); (ii) The only current objections accepted by the administering authority and referred to the Court in accordance with Chapter 5 Part 6 Divisions 6 and 7 of the EPA.” ANSWER: I decline to make the declarations sought in (a) and (b). As regards (c)(i), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the MRA. As regards (c)(ii), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only properly made objections referred to the Court in accordance with s.217(2) of the EP Act. It is further declared that the two letters dated 31 July 2009 are objections pursuant to s.217(3) of the EP Act. 2. As regards the preliminary point or significant issue sought to be decided by the miner, vis: “Whether the respondents’ grounds of objection in the Objection Form filed on 5 August 2009 pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.” ANSWER: The landholders grounds of objection filed on 5 August 2009 do not pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA. -- 29 of 30 -- 30 3. As regards the preliminary point (a) as formulated by the Statutory Party, which effectively repeat those sought by the landholders question , which asks: “Whether the Land Court has jurisdiction to hear and determine an objections decision under the EP Act and, for the purposes of deciding this question, whether:- (i) The application for the environmental authority lodged by the applicant is valid; and (ii) The notice of decision for the draft environmental authority (mining lease) is valid;” ANSWER: The Land Court has jurisdiction to determine the objections referred by the Mining Registrar under the EP Act on 7 August 2009 and 25 May 2010. I decline to otherwise answer the question. 4. As regards the preliminary point (b) as formulated by the Statutory Party, which repeats those sought by the landholders and the miner, which asks: “Whether the respondent’s grounds of objection contained in the objection form filed on 5 August 2009, relates only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.” ANSWER: The landholders grounds of objection filed on 5 August 2009 do not pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA. 5. These matters are set down for Review and Directions in Brisbane on Thursday, 11 August 2011, at 2:30 pm. Parties not present in Brisbane may attend by telephone. 6. The parties are directed to attend the Review and Directions with a timetable aimed at concluding the hearing of these matters over 5 days commencing 24 October 2011 in Mareeba/Atherton or Cairns or other suitable location. PA SMITH MEMBER OF THE LAND COURT -- 30 of 30 --