Australian Diatomaceous Earth Pty Ltd & Ors, Re [2004] QLRT 86

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Australian Diatomaceous Earth Pty Ltd & Ors [2004] QLRT 86 PARTIES: Re Application for Mining Lease No. 10289 by Australian Diatomaceous Earth Pty Ltd and Others FILE NO/S: AML99/04 PROCEEDING: Application to strike out objection DELIVERED ON: 7 September 2004 (Ex tempore) DELIVERED AT: Brisbane HEARING DATE: 7 September 2004 PRESIDING MEMBERS: Koppenol P ORDER/S: 1. Objection struck out. (at [8]) 2. Respondent’s application dismissed. (at [9]) CATCHWORDS: MINING – MINING LEASE APPLICATION – OBJECTION – APPLICATION TO STRIKE OUT – WHETHER CONSENT OF EPM HOLDER REQUIRED Mineral Resources Act 1989, ss 234, 245, 248 COUNSEL: N/A SOLICITORS: M. Klapper of Hopgood Ganim Lawyers for the Applicant AGENT/S: R. Hetherington for the Respondent [1] This is an application by the applicant for a mining lease to strike out an objection lodged by Resource Mining Corporation Ltd (RMC). [2] The principal ground of objection is that contrary to the statutory requirements of the Mineral Resources Act 1989 (MRA) the applicant has failed to provide to the mining registrar the written consent or the written views of the holder of EPM 11223. Other grounds of objection were conditioned upon the acceptance of that principal point. Mr Hetherington who appeared for the objector conceded that if his principal submission was not accepted then the objection and the other grounds as set out -- 1 of 3 -- could not be sustained. Mr Klapper appearing for the mining lease applicant raised a variety of arguments in an endeavour to demonstrate that the objection was not a proper objection and that the facts and circumstances relied upon were not properly supportive of the grounds of objection and indeed were not facts and circumstances at all. Mr Klapper also argued that if the objector’s principal point were determined against him the objection must be struck out. [3] I will accept for present purposes that the subject mining lease application covers land which is already the subject of EPM 11223. [4] Section 234 of the MRA provides in effect that a mining lease may be granted (a) to mine minerals and for related purposes and (b) for purposes other than but related to mining. The purpose of this mining lease application is to support and facilitate a mining lease which I recommended for grant last month,1 and which I was told today is currently with the mining registrar and about to be forwarded to the Minister for appropriate action with a view to its being granted. That application was for a lease to mine diatomaceous earth. This application is for the construction and operation of a processing plant and related facilities in relation to the diatomaceous earth the subject of the earlier mining lease application. Thus the subject application is not to extract minerals but rather to process the minerals to be extracted on the nearby mining lease area. [5] The requirements for an applicant when submitting an application for a mining lease are set out in section 245 of the MRA. One of the requirements is subsection (1)(n) which provides as follows: subject to section 248, the application for the grant of the mining lease shall be accompanied by the consent in writing of each exploration permit or mineral development licence holder for the land and mineral who is not an applicant. Section 248 is headed “Consent of certain parties with registered interests to be obtained”. Section 248(2) provides that section 248 applies if an applicant applies for a mining lease over land covered by an exploration permit or a mineral development licence held by someone else. As I have said, I am prepared to accept for present purposes that the applicant here for that mining lease has applied for that lease over land covered by an exploration permit (that is EPM11223) held by someone else—namely the respondent. There were various submissions addressed to me about whether the respondent was in fact the holder of the exploration permit or whether a related company or another entity was in fact that person, but as I view the matter nothing turns on that issue for present purposes. Section 248 then goes on to provide in subsection (3) that if the mining lease application and the authority holder’s licence or permit—here, the holder of the EPM—are for the same minerals, the applicant must obtain the authority holder’s written consent to the application. That subsection does not apply because the mining lease application here is not for minerals but for the construction etc of a processing plant. Section 248(4) provides that if the application and the authority holder’s licence or permit are for different minerals, the applicant must obtain the authority holder’s written views on the application. That subsection is also inapplicable because the applicant does not seek a mining lease for minerals. Subsections (5) and (6) then provide for the consequences if the authority holder’s consent under subsection (3) is not lodged 1 [2004] QLRT 76. -- 2 of 3 -- with the mining registrar by a particular date and subsection (6), if the authority holder’s views under subsection (4) are not lodged with the mining registrar by a particular date. There are only 6 subsections in section 248; subsection (1) defines “authority holder” and I have dealt with the other subsections. [6] The significance of all that in my opinion is that section 248 deals with situations where a mining lease applicant is applying for a mining lease for either the same minerals as those covered by an exploration permit or for different minerals from those covered by an exploration permit; and it provides then for the consequences if the exploration permit holder’s consent or views are not lodged. Section 245(1)(n) is made conditional upon the applicability of section 248 in my opinion by its introductory words “subject to section 248”. Mr Hetherington submitted that in this particular case although the mining lease application seeks the grant of a mining lease for processing purposes and not for purposes of extracting minerals, the consent of the holder of the EPM was still required even though that factual situation was not dealt with in section 248. I do not accept that view. As Mr Klapper submitted, if Mr Hetherington’s submission was correct the effect of section 245(1)(n) in a case where a mining lease application and the holder of an EPM related to different minerals— that is the scenario dealt with in section 248(4) which requires the applicant to obtain only the authority holder’s written views and not his consent, it would still on Mr Hetherington’s argument be necessary for the mining lease applicant to obtain the consent in addition to the views of the holder of the EPM. That is not correct and is one illustration of the reason that in my opinion, Mr Hetherington’s submissions should not be accepted. [7] In my view the effect of section 245(1)(n) is that where it is required by section 248, the consent of the holder of the EPM must be obtained and accompany the application for the grant of the mining lease. In the present case, given that the mining lease application is not for the same or different minerals but rather for processing purposes, I am of the opinion that the requirements of section 245(1)(n) do not apply to this application. In those circumstances it follows that the subject objection should be struck out. As I said earlier, other issues were canvassed during argument but in my opinion it is not necessary to address those other points. [8] In those circumstances there will be an order that the objection lodged by the respondent in this matter be struck out. [Following submissions about an application in a proceeding which had been lodged by the respondent, and which sought certain orders against the Minister for Natural Resources and Mines]— [9] Having regard to my reasons just given for striking out the objection in this matter it seems to me that the other application in a proceeding, namely that brought by the respondent cannot stand. Once an objection is struck out, the former objector is no longer a party to the proceedings and in those circumstances I see no point in permitting Mr Hetherington’s client’s application in a proceeding to remain on foot. In those circumstances it is dismissed. -- 3 of 3 --