De Lacey & Foster v Mungana Pty Ltd [2010] QLC 106

LAND COURT OF QUEENSLAND CITATION: Ralph De Lacey and Stuart Foster v Mungana Pty Ltd [2010] QLC 106 PARTIES: Ralph De Lacey and Stuart Foster v. Mungana Pty Ltd FILE NOS: MRA585-09 MRA587-09 MRA588-09 MRA590-09 PARTIES: Ralph De Lacey v. Mungana Pty Ltd FILE NOS. MRA586-09 MRA598-09 PROCEEDING: General Application DELIVERED ON: 9 July 2010 DELIVERED AT: Brisbane MEMBER: Mr WA Isdale ORDER: General Application dated 25 March 2010 is refused. CATCHWORDS: Mineral Resources Act 1989. Mining Lease – Compensation – Respondent’s application for adjournment on native title grounds APPEARANCES: Mr R Hetherington (Hetherington Exploration & Mining Title Services) as agent for Mungana Pty Ltd Mr R De Lacey for himself and Mr S Foster [1] These matters arise out of the Land Court's jurisdiction to determine compensation payable to the owner of land the surface of which is the subject of an application for a mining lease or surface access to a mining lease. In accordance with section 279(5) of the Mineral Resources Act 1989 (the Act) the mining registrar has, in the case of each of these matters, referred the question of the amount of compensation to the Land Court. The Court must determine the amount of compensation in accordance with section 281. -- 1 of 4 -- 2 [2] By general application dated 25 March, 2010 signed by Mr Russell Hetherington as authorised agent for Mungana Pty Ltd, the respondent, the following orders are sought: Adjournment of proceedings relating to each matter to a time to be fixed in accordance with Section 25 of the Land Court Act 2000, being – If the Applicant is not able to execute a "Deeding In – Opt In Deed By Grantee Party" at Schedule 8 to the ILUA 1. a date after which the Applicant has complied with all the requirements of the Right to Negotiate provisions of Subdivision P, Division 3, Part 2 of the Native Title Act 1993 for each MLA and if required, an appropriate agreement has been concluded in respect to each MLA with any Native Title parties registered for the purposes of that Act, or 2. a date after which the Applicant has complied with all the requirements of the Right to Negotiate provisions of Subdivision P, Division 3, Part 2 of the Native Title Act 1993 and there are no registered Native Title parties in respect to the land subject to each of the MLA's whichever date is the sooner. If the Applicant is able to execute a "Deeding In – Opt In Deed By Grantee Party" at Schedule 8 to the ILUA – 1. a date after all the requirements of the ILUA and the Native Title Act 1993 have been satisfied so as to enable each MLA to proceed to grant. [3] Reduced to its essentials, it is asserted that the compensation determinations should be adjourned until native title aspects are completed. [4] In support of this, the grounds on which the order is sought assert, see paragraph 5, that it is "not appropriate" for the Land Court to determine compensation when native title aspects may take months or years to resolve. [5] The parties have each lodged written submissions in support of their positions and were afforded the opportunity on 5 July, 2010 to make oral submissions. Neither party made oral submissions, both being content to rely on their written submissions. [6] Mungana Pty Ltd asserts that it is the "owner" of the land which it sub-leases to others. In these reasons this company will be referred to as the owner. [7] In the written submissions dated 15 June, 2010 made on behalf of the owner it is argued that the applicants are not able to be considered to be a "small miner" and so could not have the benefit of the Wakaman People Indigenous Land Use Agreement (ILUA). This is part of the overall submission that all native title aspects must be resolved before this Court proceeds to determine compensation under the Act. [8] In written submissions dated 31 May, 2010 Mr De Lacey argues that the native title submission made on behalf of the owner is "... outside the scope of this Land Court -- 2 of 4 -- 3 Hearing". The hearing, he argues, "... should be confined to MRA Section 281". He makes submissions in response to the argument advanced on behalf of the owner concerning the Indigenous Land Use Agreement's scope and interpretation and asserts that the application now before the Court is "... a delaying and distracting tactic" by "... a large scale miner trying to control and dominate an area and exclude all other mineral miners". [9] On 2 July, 2010 an e-mail was received from Mr Hetherington enclosing a copy of an order by His Honour Justice Spender made in the Federal Court on 11 December 2007 striking out an application made on behalf of the Wakaman People #2. [10] On 5 July, 2010 an e-mail was received from Mr De Lacey essentially reiterating his position and developing an argument concerning the "Wakaman Small Miners ILUA". [11] This Court's jurisdiction is to be found in section 281 of the Act. The matter has been referred to the Court by the mining registrar to make the determination under section 281 in the absence of an agreement by the parties. Section 281(3) provides, inter alia, that: "... the Land Court shall settle the amount of compensation an owner of land is entitled to ..." [12] Although written submissions have been made and the opportunity for oral submissions was provided, the owner's case that the matter of compensation should be adjourned stands no higher than that it would not be appropriate to determine compensation until native title aspects are resolved. It has not pointed to any statutory provision or decision of a Court which might displace or modify the Court's duty to proceed to determine compensation. [13] The Act imposes a positive duty on the Court so it is for the owner which is seeking to have the proceedings adjourned to establish why that should occur. The matters for which an owner is entitled to compensation are set out in sub-section (3) of section 281. The Court is required to proceed as stipulated in sub-section (4). Sub-section (5) sets out that the Court may determine the amounts and the terms and conditions of payments as well as the times when payments shall be made. Sub-section (6) makes the Court's determination binding and subsection (7) requires the Court to give written notice of its determination to all parties. It also allows the Court to make an order for costs. This detailed provision does not contain any indication that the Land Court would need to adjourn the compensation question as sought by the company. It is not the case that the owner has demonstrated a legal requirement for such an adjournment so whether it should be granted is discretionary. -- 3 of 4 -- 4 [14] For present purposes it is unnecessary to await the resolution of any native title aspects as they would stand quite apart from the jurisdiction conferred by section 281 of the Act. It is therefore not necessary for present purposes to determine the dispute between the parties as to the "small miner" provisions of the ILUA. [15] I am satisfied that there is no legal requirement that the compensation proceedings be adjourned and I am not satisfied that a sufficient reason has been shown by the owner to justify the adjournment sought in view of the provisions of section 281 and the fact that native title matters may be determined separately. [16] The application is therefore refused. WA ISDALE MEMBER OF THE LAND COURT -- 4 of 4 --