Armstrong v Miles [2002] QLRT 3

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Armstrong v Miles [2002] QLRT 3 PARTIES: Dean Lindsay Armstrong and Lisa Maree Armstrong Applicant/Appellant - and - Philip Michael Miles First Respondent - and - Chief Executive, Environmental Protection Agency Fourth Respondent FILE NO: APTP00001/2002 PROCEEDING: Application for leave to appeal DELIVERED ON: 20 February 2002 DELIVERED AT: Brisbane HEARING DATE: 8 February 2002 PRESIDING MEMBER: Koppenol P ORDER/S: Leave to appeal refused. (at [19]) CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL – MINING LEASE – DEFINITIONS – ‘EXPLORE’ – ‘MINE’ – Whether mining lease sought for mining or for exploration purposes Land and Resources Tribunal Act 1999, s 67(1), (2)(a) Mineral Resources Act 1989, s. 6A, Schedule (Dictionary) Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, referred to Gonzo Holdings No. 50 Pty Ltd v Grundy [1994] QSC 201, considered Gonzo Holdings No. 50 Pty Ltd v McKie [1996] 2 Qd R 240, considered -- 1 of 7 -- COUNSEL: Mr H. Zillman, for the Applicant Mr A. Barlow, for the First Respondent SOLICITORS: N/A AGENTS: Mr Bywater, for the Fourth Respondent [1] This is an application for leave to appeal against a decision of a Deputy President of the Tribunal. The decision1 was to recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Application for Mining Lease No. 70262 be granted in relation to sapphire and zircon only and subject to a condition that the activities authorised by it were those described in the mining lease applicant’s witness statement filed in the Tribunal on 11 September 2001. [2] The Applicants here were the landowner/objectors before the Deputy President. The First Respondent is the mining lease applicant. Prior to the hearing, the Second and Third Respondents were removed (by consent) as parties to this application. [3] The Land and Resources Tribunal Act 1999 permits an appeal to the President from such a decision of a Deputy President, but only on a question of law, and with the President’s leave.2 [4] Mr H Zillman of Counsel for the Applicant submitted that leave should be granted because (so it was said) the mining lease was sought for exploration and testing purposes only and that it was contrary to the scheme of the Mineral Resources Act 1989 (MRA) for a mining lease to be granted for such purposes. This was the suggested question of law. It was also said to be an issue of significant public importance. [5] For his part, Mr A. Barlow of Counsel for the Respondent submitted that the mining lease was sought for mining purposes and that in the circumstances, leave should be refused. [6] The mining lease application stated that the surface area of the proposed lease was required for pilot testing operations and to carry out mining operations for the 1 [2001] QLRT 93, at [51]. 2 Section 67(1) & (2)(a). -- 2 of 7 -- minerals listed. The accompanying mining program stated that on the grant of the lease, it was proposed to commence a testing program which was anticipated to take 1 to 2 years; and on its completion, any areas within the lease area that had been proven economic would be targets for further mining lease applications. [7] The Deputy President found that it was clear from the applicant’s evidence that the activities proposed were intended to ascertain the viability of areas for subsequent production. Those activities were the excavation of 100 test slots over the surface of the lease area, so as to ascertain the extent of mineralisation and to identify the most prospective areas. The applicant regarded that “testing program” as a proper facet of mining and a necessary preliminary aspect of mining. [8] The mining lease applicant’s witness statement which was referred to in paragraph [1] and which was referred to in the Deputy President’s recommendation contained the following:3 “11. In the mining lease application, it is stated that I will conduct a testing program on the application lease to determine the exact position of significant sapphire bearing wash. A testing program is something that most prudent miners engage in before mining. The reason is straightforward: it is expensive and non-productive to simply mine an area without targeting specific deposits. The testing program I envisage will determine the parts of the lease which are significantly mineralised and it is part of a program which I would undertake in any event so as to minimise disruption to the land, the subject of the lease, and also to maximise production. 12. It is proposed that mining will occur when commercial quantities of sapphire are found but, in the meantime, I intend to spend upwards of $20,000 determining the exact location of significantly mineralised wash. 13. I must point out that testing narrows the area of mining required to produce the product and is beneficial not only to the miner but also the landowner. The landowner benefits by having less disturbance to his grazing activity. 14. I intend to use a costean process. A small excavator pits areas 1 metre wide by approximately 5 metres long and up to 7 metres deep. These are referred to as “slots”. The material gained from this process will be processed on site using a small dam and a treatment plant. The treatment site and roads will consist of no greater disturbance than half a hectare and, in the initial phases will minimize disturbance to grazing. 15. It is said by the objectors that the purpose of my operation is not mining but rather exploration. This is incorrect. Prudent miners who wish to maximise their operation, and minimise their disturbance to graziers, will always put in place a testing program so that the exact area and quality and quantity of mineralisation is known to the miner before mining is commenced.” 3 AB 121-2. -- 3 of 7 -- [9] It is important to appreciate that this was not a case where the applicant sought to conduct a testing program to ascertain if the subject area was mineralised. Rather, there was evidence before the Deputy President (which was accepted) that established that there were potential sapphire deposits across the entire area of the proposed lease and that the applicant (who had formerly held a prospecting permit) had located sapphires at 5 sample sites scattered throughout the area applied for.4 The Deputy President also accepted that gem quality zircon was often recovered with sapphires. There was no challenge to those findings. [10] The MRA defines “mine” and “explore” in the following terms: “Meaning of “mine” 6A.(1) “Mine” means to carry on an operation with a view to, or for the purpose of – (a) winning mineral from a place where it occurs; or (b) extracting mineral from its natural state; or (c) disposing of mineral in connection with, or waste substances resulting from, the winning or extraction.”5 “explore” means take action to determine the existence, quality and quantity of minerals on, in or under land or in the waters or sea above land by - (a) prospecting; (b) using instruments, equipment and techniques appropriate to determine the existence of any mineral; (c) extracting and removing from land for sampling and testing an amount of material, mineral or other substance in each case reasonably necessary to determine its mineral bearing capacity or its properties as an indication of mineralisation; (d) doing anything else prescribed under a regulation.”6 [11] There was no dispute before the Deputy President that the activities proposed by the Applicant fell within the definition of “explore”. [12] Mr Zillman argued that aspects of the evidence demonstrated that the Applicant’s purpose in applying for a mining lease was really to explore the land, rather than to mine it. He also relied upon the maxim expressio unius est exclusio alterius (express mention of one is the exclusion of the other). It was submitted in effect that because the Applicant’s proposed activities fell within the definition of “explore” (where express reference is made to “testing”), and because there was no reference in the definition of “mine” to testing or exploration, it followed that the activities could not constitute mining as defined. 4 [2001] QLRT 93, at [25]. 5 Section 6A. 6 Schedule (Dictionary). -- 4 of 7 -- [13] All of the evidence in this case was considered by the Deputy President, who found that the Applicant’s proposed activities fell within the definition of “mine”. Whilst some parts of the Applicant’s evidence may be capable, in isolation, of an interpretation which favours Mr Zillman’s argument, when viewed in the context of the Applicant’s overall evidence, that particular interpretation is, I think, inaccurate. For example, Mr Zillman drew attention to a passage in the cross-examination of the Applicant, as follows:7 “But Mr Miles, am I – is this fair; what you’re seeking to do is to carry out testing that would normally be done under an – of the type that would normally be done under an exploration permit? - - Oh no, just about everybody tests now. All the miners will put test holes down before they’d start mining. They’re not going to spend 30 or 40 thousand dollars – that’s what it costs now for a big open cut – if at the end of that – the bottom of the hole there’s no sapphires. Every miner does it – Eddy Vella does it, Great Northern have been doing it for many years. They test ahead of themselves all the time.” [14] The reference in that passage to “test” is capable of at least two interpretations. It could refer to a process of detecting the possible presence of sapphires (for example), or it could refer to a process of detecting the precise location of sapphires which were known to exist, prior to the commencement of the extraction process. However when the content of the Applicant’s written statement of evidence is taken into account (see paragraph [8] above), in circumstances where sapphires had already been located at various sample sites throughout the subject area, a contextual interpretation becomes possible. When that is done, it is clear in my opinion that the witness was not describing a process to detect possible mineralisation – which could accurately be described as exploration; rather, he was describing a process to precisely locate known mineralisation, prior to its excavation and removal. When so viewed, in my opinion the proposed activities fall within the definition of “mine”, as the Deputy President found. [15] As noted above (paragraph [12]), the applicant here also relied upon the maxim expressio unius est exclusio alterius. This submission would render the statutory definitions of “explore” and “mine” to be mutually exclusive. Thus if an activity fell within the definition of “explore”, it could never also fall within the definition of “mine”. However, the High Court has said that the maxim must be “applied with 7 AB61 (ts 25.10.01 p5 LL4-14). -- 5 of 7 -- caution”.8 And Pearce and Geddes say that “[w]hen it is followed, it is used more often as a bolster to a predetermined interpretation than as a rule that produces a result in itself”.9 In any event, the “mutual exclusion” argument concerning the definitions of “explore” and “mine” has been considered by the Supreme Court of Queensland. In Gonzo Holdings No 50 Pty Ltd v Grundy,10 it was rejected by Derrington J. His Honour said:11 [emphasis added] “In respect of grants of licences, permits etc, it is suitable to distinguish between such related activities as prospecting, exploring and mining for the purpose of suitably limiting the authority that should be invested in the recipient of a particular grant. It is in this way and in this way alone that the distinction operates, that is, to provide that the grantee of a limited right is confined to the limited range of activity defined; but that does not mean that the activities permitted by a higher grant do not include those in the more limited class.” On appeal, Macrossan CJ (who dissented in the result) also rejected it, saying that:12 “The argument that the definition of the latter activity [“explore”] should be used to cut down that involved in the former [“mine”] should not be accepted.” Although the other members of the Court of Appeal (McPherson JA and Thomas J) did not expressly address the point, the following statement of their Honours is consistent with its rejection:13 “… the activities being carried out by the appellant on the Karrara land, even though their purpose may have been exploratory, would, on almost any view of it, be considered to be mining of that land.” [16] In the circumstances, by application of their Honours’ statements in Gonzo Holdings, I regard the “mutual exclusion” argument put in reliance upon the expressio unius maxim as having no serious prospects of success on appeal. [17] At the end of the day, this case in my opinion was one which turned upon the Deputy President’s assessment of the facts and their application to the statutory definition of “mine”. In particular, the key issue was what activities did the Appellant actually intend to conduct if he were granted a mining lease. His evidence, when viewed in context and overall, confirmed that he wanted to carry on certain operations with a view to or for the purpose of winning, extracting and 8 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 575. 9 Statutory Interpretation in Australia, 4th ed (1996), p106. 10 [1994] QSC 201. 11 Ibid, at p5. 12 Gonzo Holdings No. 50 Pty Ltd v McKie [1996] 2 QdR 240, 246. 13 Ibid, at 249. -- 6 of 7 -- disposing of particular minerals. Those activities, in my opinion, fell within the definition of “mine” – as the Deputy President found. [18] Mr Barlow argued that that was the case and that no question of law or issue of public importance was involved. For the foregoing reasons, it is my opinion that this case was not one where the applicant sought a mining lease for exploration purposes; rather, the lease was sought for mining purposes as defined. Accordingly no question of law or issue of public importance is involved. [19] Leave to appeal is therefore refused. -- 7 of 7 --