Cape Flattery Silica Mines Pty Ltd v Hope Vale Aboriginal Council & Ors [2004] QLRT 34

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Cape Flattery Silica Mines Pty Ltd v Hope Vale Aboriginal Council & Ors [2004] QLRT 34 PARTIES: Cape Flattery Silica Mines Pty Ltd (Applicant) v Hope Vale Aboriginal Council & Ors (Respondents) FILE NO: MRAA00051/2004 PROCEEDING: Application for interim injunction DELIVERED ON: 31 March 2004 DELIVERED AT: Brisbane HEARING DATE: 31 March 2004 MEMBER: Koppenol P ORDER/S: 1. Interim injunction granted. (at [9]) 2. Costs reserved. (at [9]) 3. Matter adjourned to 10am 6 April 2004. (at [8]) CATCHWORDS: INTERIM INJUNCTION — EX PARTE — URGENCY – SAFETY ON MINE SITE — ALLEGED UNLAWFUL TRESPASS AND THREATENING BEHAVIOUR Mineral Resources Act 1989, ss 363(1), (2), 403 Land and Resources Tribunal Act 1999, ss 51(1), 65(2)(b) COUNSEL: N/A SOLICITORS: Ms Z. Farmer, Mr M. Klapper and Ms B. Jones of Hopgood Ganim for Applicant AGENT/S: N/A [1] This is an application for an interim injunction.1 It was dealt with on an ex parte basis because of urgency and safety reasons. 1 See Mineral Resources Act 1989, s. 363(1) & (2); Land and Resources Tribnunal Act 1999, ss 51(1), 65(2)(b). -- 1 of 4 -- [2] The applicant is the holder of 4 silica mining leases north of Cairns. For various commercial reasons, the applicant decided recently to reduce its workforce. A number of Aboriginal people are part of the workforce and some of them have also lost their jobs. The employees’ unions were dissatisfied with the applicant’s actions and that matter was referred to the Industrial Relations Commission. [3] However, of present concern is the evidence which I heard today from the applicant’s industrial consultant (Mr Catchpole) and its general manager and operations manager (Mr Marshall). I was told that various named Aboriginal persons (some of whom are former employees of the applicant) and representatives of the Hope Vale Aboriginal Council (HAC) were attempting to take over the control of the mine and were refusing to leave the property. Evidence was also given about abusive and other threatening behaviour by some of those persons and of their demands that the applicant vacate the site. The underlying land tenure is a deed of grant in trust held by HAC. I was told that some years ago, HAC had consented to the grant of the mining lease. [4] Mr Catchpole also gave evidence that various people were coming onto the minesite without authorisation or safety inductions and that a number of unauthorised motor vehicles were being driven on the site. Alcohol has also apparently been brought in. Mr Catchpole was gravely concerned about safety issues. The applicant had asked for police support and protection (which was given) and had also arranged for security officers to attend. [5] I am satisfied on the evidence which I have heard and submissions by Ms Farmer and Mr Klapper that there is a serious question to be tried as to whether the persons whose names are ticked on exhibit 1 and the vehicles which are shown and ticked on exhibit 1 are unlawfully on the applicant company’s mining leases. I note the provisions of section 403 of the Mineral Resources Act 1989 (MRA) that a person shall not enter or be upon or use or occupy land that is the subject of a mining lease unless that person is authorised by or under the MRA and has the consent of the holder of the mining lease. The evidence (which I accept) is that no such consent has been given. The evidence also satisfied me that there are now urgent safety issues concerning not only the persons referred to above but also other employees or former employees of the applicant. I am cognisant of the evidence which indicates that there may have been a number of criminal offences committed relating to breaking in to certain company property and threatening various people. This has added to my concern about the current state of safety on the mining lease areas. I am satisfied that the respondents have been lawfully asked by the company to leave the mining leases and that they have refused and that they do not have any lawful excuse for refusing. I make it clear though that I have heard only one side of the argument here but at the present time I am prepared to proceed on that basis. [6] With respect to the balance of convenience, I have little doubt that the most appropriate course here would be to make the orders which are sought by the applicant, which will ensure that the respondents forthwith vacate the areas which have been specified and also forthwith remove the 5 vehicles which are also the subject of this application. -- 2 of 4 -- [7] If in the end it transpires that the respondents are able to satisfy me that they have a lawful entitlement to be and remain upon the land concerned, then the orders which I will make today can be dissolved. I should also say that this does not seem to me to be a case where damages would be an adequate remedy. At the present time, the applicant is unable to continue with its mining operation because of the respondents’ actions. The solicitors for the applicant having given the usual undertaking as to damages, I am therefore satisfied that this is an appropriate case for me to make orders generally in terms of the draft order which was sought. [8] It would be appropriate to set a time for the continuation of the hearing in this matter, today having proceeded on an ex parte basis. I will therefore adjourn the matter to 10:00am on 6 April 2004 for a directions hearing. Prior to that date, the applicant must file in the Tribunal and serve upon the respondents an application seeking the relief that the applicant has sought and appropriate supporting affidavits. I would expect that affidavits by Ms Farmer and Messrs Klapper, Catchpole and Marshall (and perhaps others) would be filed and served. [9] May I now just return to paragraph 2 of the order that is sought and that is that the persons listed in the schedule are prevented from re-entering the Cape Flattery area. That is not conditioned by any time constraint and I will include in paragraph 2 the words “until 4:00pm on Tuesday 6 April 2004 or further order by the Tribunal”, the persons listed in the attached schedule etc are prevented from re-entering. That will enable the question of the subsequent conduct of this matter and of the persons who are the subject of the orders which I will make to be determined next Tuesday. Depending upon the circumstances, the injunction can be dissolved or extended. I therefore make orders in terms of paragraphs 1 and 2, as amended, of the draft order initialled by me and placed with the papers. Costs are reserved. [10] [The President then dealt with matters relating to service of the order.] [11] Order: 1. Under the jurisdiction conferred on this Tribunal pursuant to s363(2)(d) of the Mineral Resources Act 1989, s51(1) of the Land and Resources Tribunal Act 1999 and s65(2)(b) of the Land and Resources Tribunal Act 1999, the persons listed in the attached schedule and marked by a tick: (a) forthwith vacate the area of mining (including areas where mining equipment is located), milling, the township workshop loading and construction areas and exploration drilling locations and wharf and camp areas within the area of Cape Flattery Silica Mines Pty Ltd’s mining leases numbers 2806, 2965, 7069 and 40048 (Cape Flattery Area); and (b) forthwith cause the vehicles described in the schedule and marked with a tick to be removed from the Cape Flattery Area. 2. That under the jurisdiction conferred on this Tribunal pursuant to s363(2)(d) of the Mineral Resources Act 1989, s51(1) of the Land and Resources Tribunal Act 1999 and s65(2)(b) of the Land and Resources Tribunal Act 1999: (a) the persons listed in the attached schedule and marked with a tick are prevented from re- entering the Cape Flattery Area until 4.00 pm on Tuesday 6 April 2004 or until further order. -- 3 of 4 -- Schedule Flight One due to leave 31st 1 Dave Gall-Austek B. Hart supply 2 Grace Scotter A. Deemal nursery  Keith Jeffreys boilermaker  3 John Pettersen G.Rosendale mill  D. Radlingmayr boilermaker  4 Maggie Bradshaw Fred Nona cas, supply  Laurie Raleigh fitter  5 Ariel Finch Kevin Deemal mill  Graham Till elect  6 Joy Willey Graham Darkan mill  Nigel Walker appr  7 Geoff Hattin Les Pitcher diesel fitter  Barry Kerr cook  8 Kayl Hattin Mick Salam appr. Mec  Allen Marston elect  9 Lorraine Rosendale Laurie Smith mill  John Rosendale supply/skipper  10 Shawn Clark supply  Malcolm McIvor bar  Stanton Bowen supply  Flight Two Ins. Joe Jackson Sam Yoren supply/skipper  1 Sgt. Greg Cruise Alwyn Yoren mill  2 Sgt. Bruce Kuhn Vince Gibson mill  3 Sen.Cons. Brendan Horgan Trumaine Cobus mill  4 Det.Sgt. John Murphy John Noble mill  5 Sen Police Liason Off. Drove in 30.03.04 6 Robert Gibson Paul Flinders store  7 Anthony Gibson Clarry Bowen supply  8 Max Bowen mill  9 Gary Bowen supply  10 Terry Deemal mill  John Bradshaw Ted Brischke Mark Pearson mill  Allen Hunt Len Catchpole June Pearson hopevale  Wayne Coats Darryl Noack Greg McLean hopevale  Derrick Deemal hopevale  Phillip Baru hopevale  Non Company Vehicles on site Barry Brown mill  806 HCS Wh. Toy.90.+ (hopevale)  B. Cobus nursery  766 GJN Wh./Cr.Toy.879-tray  Chantal Gibson visitor  790 ECO Brown Patrol Wagon  Judith Woibo visitor  832 HMC Red Toy.-J.Rosendale  Harold Woibo visitor  761 HNC Blue Toy.76Tray-Noble/Evans  Any motor vehicle not authorised by Cape Flattery Silica Mines Pty Ltd  Hope Vale Aboriginal Council Hope Vale Community and any member of the Hope Vale Community   -- 4 of 4 --