Clark, Bexton, Lane & Ors, Environmental Protection Agency, Re [2004] QLRT 17

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Clark, Bexton, Lane & Ors, Environmental Protection Agency [2004] QLRT 17 PARTIES: In the Matter of Mining Lease No. 50200 and in the Matter of Environmental Authority MIM400147503 – Application by Barry Clark and Mark Bexton for mining lease and environmental authority and objections by Murray Lane and others to their grant. Environmental Protection Agency as statutory party in the matter of Environmental Authority MIM400147503 FILE NO: AML00095/2003 ENO00096/2003 PROCEEDING: Application for mining lease Application for environmental authority (mining lease) DELIVERED ON: 16 February 2004 DELIVERED AT: Brisbane HEARING DATE: 16 February 2004 MEMBER: Kingham DP ORDER/S: 1. The orders made on 5 December 2003 are vacated. (at [14]) 2. The applications for ML 50200 and for draft environmental authority MIM400147503 are referred to the Mining Registrar for the Brisbane Mining District. (at [14]) 3. In respect of each of those applications, upon the Tribunal being notified in writing by the Mining Registrar that the Minister has rejected the application for ML 50200 because consent of Titan Minerals Pty Ltd was not obtained, the Applicants are ordered to pay the Respondents’ costs of and incidental to the applications. If those parties have not agreed what those costs are within 1 month of the order issuing, either party may apply to the Registrar of the Tribunal for the costs to be taxed. (at [14]) 4. All parties have liberty to apply to the Tribunal for further or other orders upon giving each -- 1 of 5 -- other party 3 days notice in writing of the application. (at [14]) CATCHWORDS: MINING – ENVIRONMENT – APPLICATION FOR MINING LEASE – APPLICATION FOR ENVIRONMENTAL AUTHORITY – COMPETING APPLICATIONS FOR MINING TENURES – CONSENT – MINING REGISTRAR’S POWERS - COSTS Mineral Resources Act 1989, ss 211(2), 248(5), 249(2), (3), (5), 265, 271(1) Environmental Protection Act 1994, ss 212, 219 Land and Resources Tribunal Act 1999, s. 65 Northern Safecorp Consultants Pty Ltd & Anor v DP & JM Parsons [2001] QLRT 20, referred to COUNSEL: Mr McGrath for the Respondents SOLICITOR/S: Environment and Local Government Legal Services for the Respondents AGENT/S: Mr Clark for the Applicants Mr Pepper for the Environmental Protection Agency Mr Reiken for the Department of Natural Resources, Mines and Energy [1] KINGHAM DP: These applications were referred to the Tribunal pursuant to s. 265 of the Mineral Resources Act 1989 (MRA) and s. 219 of the Environmental Protection Act 1994 (EP Act). The Tribunal’s functions are to hear the applications for the mining lease and environmental authority and the objections to their grant and to recommend to the Minister whether the mining lease and the environmental authority should be granted and, if so, on what conditions. [2] In the circumstances of this case, I am satisfied that the applications were referred to the Tribunal prematurely, because there are competing applications for tenures for the same minerals. Titan Minerals Pty Ltd (Titan) lodged its application for an exploration permit before the Applicants, Mr Clark and Mr Bexton (the Applicants), lodged their application for ML 50200. [3] The effect of the MRA provisions which deal with conflicting applications or interests is: (a) The Applicants have to obtain Titan’s consent to their application (s. 249(2)). (b) If Titan’s application is successful and Titan does not consent to the Applicants’ later application, the Mining Registrar must recommend to the Minister that it is rejected (s. 248(5)). -- 2 of 5 -- (c) If Titan does consent to their application, the Applicants must lodge their consent with the Mining Registrar within 28 days of the grant of Titan’s exploration permit (s. 249(3)). [4] The Mining Registrar must not deal with the later application until Titan’s application is decided (s. 249(5)). The Mining Registrar submitted the prohibition on dealing with the application applied only to the final memorandum to the Minister regarding the application. That memorandum is prepared after the Tribunal has delivered its recommendation on the application. It is at that stage that the application is finally dealt with by the Minister. The Mining Registrar did not consider the prohibition applied to other administrative processes relating to the application, including, presumably, the reference of the application to the Tribunal. [5] I do not accept that is a proper interpretation of the provision. On its face there is no ambiguity. “Deal with” means to “take action with respect to” (Macquarie Dictionary 3rd edition). The section draws no distinction between different stages of the application process. It clearly prevents the Mining Registrar from exercising any of his statutory powers with respect to the application, including its referral to the Tribunal. Given the consequences of the outcome of an earlier application for the fate of a later one, that is a sensible procedure. I accept the Mining Registrar acted in good faith, albeit on an incorrect reading of the provision. I also accept that Mr Clark led him to believe that consent would be obtained and that the Mining Registrar referred the matter to the Tribunal on that basis. Mr Clark did not dispute he had given the Mining Registrar that impression. When the Mining Registrar became aware Titan would not consent, he properly brought this matter to the Tribunal’s attention and I convened this directions hearing to hear from the parties as to what orders I should make in the circumstances. Because of the circumstances of this case, the Mining Registrar made submissions at the invitation of the Tribunal. [6] The referral of the application for the environmental authority is also premature as it rested on administrative steps the Mining Registrar should not have taken. An application for an environmental authority is referred to the Tribunal if, at the end of the objection period, there is a current objection (s. 219 EP Act). The objection period for the application for the environmental authority was set by the Certificate of Public Notice issued under the MRA (ss 211(2) & 212 EP Act). Had the Mining Registrar not issued the Certificate of Public Notice, no objection period would have been set and the application could not have been referred to the Tribunal. [7] Mr McGrath, for the Objectors, submitted that the Applicants have no real prospect of succeeding in their application for the mining lease and that I should dismiss it. There were two grounds for the submission: firstly, because Titan had clearly indicated that it would not consent to their application; and secondly, because there was no material before the Tribunal upon which I could reasonably make a positive recommendation to the Minister on their application. [8] As to the first ground, whilst Titan has not, at this stage, consented to the application, that does not necessarily render the application futile. Titan’s application may be unsuccessful, in which case its consent would not be required. Even if Titan’s application is successful, the Applicants have 28 days after the grant of Titan’s exploration permit to persuade Titan to consent. Titan has left this possibility open in a letter to Mr Clark dated 3 February 2004 in which it stated “We may give -- 3 of 5 -- consideration to a joint venture after grant of the EPM if you wish to talk to us.” That joint venture may well involve consent to the mining lease application. It is inappropriate for me to prejudge the outcome of either Titan’s application or of further discussions between Titan and the Applicants. [9] As to the second ground, the Applicants have filed only two brief documents in support of their application. I accept Mr McGrath’s submission that those documents, alone, could not reasonably support a recommendation to grant the mining lease. I am mindful, however, that the Tribunal’s function is not to determine an application but to consider the application and to make a recommendation to the Minister. Even if I am satisfied that I would recommend against the grant of the mining lease, the Minister still has discretion to ignore the recommendation or to send the matter back to the Tribunal to hold a further hearing (s. 271(1) MRA). In either case, Mr Clark and Mr Bexton would have the opportunity to present further material in support of the application, either to the Minister or the Tribunal, regardless of the outcome of the hearing scheduled to commence in two weeks time. [10] Mr McGrath relied upon the Tribunal possessing all the powers of the Supreme Court for exercising its jurisdiction (s. 65 of the Land and Resources Tribunal Act 1999 (LRT Act)). I accept that this provision confers on the Tribunal the power to dismiss an application in appropriate circumstances. Nevertheless, whilst I have decided the applications have been referred to the Tribunal prematurely, there is nothing to suggest that the application itself is incompetent and should, therefore, be dismissed.1 [11] It is clear, however, that the scheduled hearing should not proceed until Titan’s application has been determined. I have decided the appropriate course of action is to refer both the application for the mining lease and the application for the environmental authority back to the Mining Registrar for the Brisbane Mining District. Whilst the application for the environmental authority was referred to the Tribunal by the Environmental Protection Agency (EPA), I accept Mr Pepper’s submission for the EPA that it should be referred to the Mining Registrar because the EPA has completed its functions under the EP Act, subject to any hearing before the Tribunal and decisions that may be made under the MRA. [12] Mr McGrath sought an order that Mr Clark and Mr Bexton pay the Objectors’ costs. Mr Clark opposed the order but did not persuade me that I should not make it. I accept there are “special circumstances” that would justify an order for costs, but only if the application is rejected because Titan’s consent is not forthcoming (s. 50 Land and Resources Tribunal Act 1999). Those special circumstances are that Mr Clark was aware that he needed to obtain Titan’s consent for the application to proceed. He assured the Mining Registrar that consent would be obtained. I am satisfied that, without that assurance, the Mining Registrar would not have referred the application to the Tribunal for hearing. Had that not happened, the Objectors would not have incurred costs in preparing for the hearing of their objections. Those costs include legal fees and the fee charged by an expert who has provided a detailed report on issues raised by the objections. 1 cf Northern Safecorp Consultants Pty Ltd & Anor v DP & JM Parsons [2001] QLRT 20. In which case, after hearing all the evidence I determined that the resource applied for did not fall within the definition of the MRA and, therefore, that the MRA did not apply to it. -- 4 of 5 -- [13] It is possible that this application will be referred back to the Tribunal for hearing of the applications and the objections to them. Titan’s application for an exploration permit may be unsuccessful or, if successful, Titan may reach an agreement with Mr Clark and Mr Bexton that includes their consent. If the matter is referred back to the Tribunal, the Objectors’ costs will not have been thrown away. I have decided, therefore, to make an order for costs on a conditional basis. That order will issue if the condition is realised. That is, if the application is rejected because Triton’s application is successful and it does not consent to Mr Clark and Mr Bexton’s application. If the parties cannot reach agreement about the costs payable, the Registrar of the Tribunal will determine costs by taxation. [14] My orders are: 1. The orders made on 5 December 2003 are vacated. 2. The applications for ML 50200 and for draft environmental authority MIM400147503 are referred to the Mining Registrar for the Brisbane Mining District. 3. In respect of each of those applications, upon the Tribunal being notified in writing by the Mining Registrar that the Minister has rejected the application for ML 50200 because consent of Titan Minerals Pty Ltd was not obtained, the Applicants are ordered to pay the Respondents’ costs of and incidental to the applications. If those parties have not agreed what those costs are within 1 month of the order issuing, either party may apply to the Registrar of the Tribunal for the costs to be taxed. 4. All parties have liberty to apply to the Tribunal for further or other orders upon giving each other party 3 days notice in writing of the application. -- 5 of 5 --