Barrett v McLoughlin [2002] QLRT 1

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Barrett v McLoughlin [2002] QLRT 1 PARTIES: Rodney Keith Barrett (Applicant/Appellant) v Patrick Daniel McLoughlin (Respondent) FILE NO: APTP00119/2001 PROCEEDING: Application for leave to appeal DELIVERED ON: 29 January 2002 DELIVERED AT: Brisbane HEARING DATE: 24 January 2002 PRESIDING MEMBER: Koppenol P ORDER/S: Leave to appeal refused. (at [12]) CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL – MINING CLAIM – ALLEGED ILLEGAL MINING – Whether Respondent the “agent” of abutting lessee of mining lease for purposes of s. 235(1) of Mineral Resources Act Land and Resources Tribunal Act 1999, s. 67(1), (2)(a) Mineral Resources Act 1989, ss. 235(1), 276(1)(e), 402(1)(a), (b), 403(1) Mining Act 1978 (WA), ss. 82(1)(d), 85(1) Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd (2000) 22 WAR 101, followed COUNSEL: N/A SOLICITORS: N/A AGENTS: Mr G. T. Houen, for the Applicant/Appellant [1] This is an application for leave to appeal against an order made by a Deputy President of this Tribunal. The application is brought under section 67(1) and (2)(a) of the Land and Resources Tribunal Act 1999, which permits an appeal on a -- 1 of 4 -- question of law to be brought to the Tribunal as constituted by the President sitting alone, but only with the President’s leave. The order sought to be appealed against was one instructing the Mining Registrar, Emerald District, to grant Mining Claim No. 70598.1 [2] The Applicant here (Mr Barrett) was the objector before the Deputy President and the Respondent (Mr McLoughlin) was the applicant for the mining claim. [3] The subject objection alleged that the Respondent had been “illegally mining” on the mining claim area for the preceding 18 months to 2 years. The evidence before the Deputy President was that the Respondent had been authorised by the holder of the mining lease which abutted the mining claim area to conduct some mining on the Respondent’s behalf on that mining lease area; subsequently, the Respondent strayed some 20 metres into the proposed mining claim area.2 [4] The Deputy President found that the Respondent “was working the lease area in accordance with an arrangement with the holder of the lease”;3 and that the Respondent had conducted illegal mining activities on the mining claim area  but that that had occurred due to a “simple mistake” in taking compass bearings and checking the boundaries of the mining lease.4 [5] Before me, the Applicant’s agent (Mr Houen) argued that the “simple mistake” explanation could not apply to the Respondent’s activities on the abutting mining lease because (so it was said) the Respondent was not lawfully entitled to mine on his own behalf on that area; thus it was not correct to conclude that were it not for the compass error, the Respondent’s activities would have been lawful. [6] Mr Houen drew attention to section 235(1) of the Mineral Resources Act 1989 (MRA), which relevantly entitles the holder of a mining lease and any agent or employee of the holder to enter and mine. He submitted that “agent” did not include persons merely authorised by the mining lessee and that Mr McLoughlin was not an agent or employee and was therefore unauthorised to mine; accordingly 1 [2001] QLRT 82. 2 Ts 20.02.01, pp 58 LL 6-8, 63 LL 21-26, 50-52; 03.04.01, p. 22 LL 10-11. 3 [2001] QLRT 56, at [17]. 4 [2001] QLRT 56, at [18], [52]; [2001] QLRT 82, at [37], [38]. -- 2 of 4 -- his activities were illegal. Reference was also made to the offence provisions of sections 402(1)(a) and (b) and 403(1) of the MRA, which relevantly proscribe a person’s entering land or carrying on mining (or suffering any other person to do so) unless the person is authorised under the MRA. [7] This point is not without authority. In Anaconda Nickel Ltd v. Tarmoola Australia Pty Ltd,5 a question arose before the Full Court of Western Australia as to whether the word “agents” in section 85(1) of the Mining Act 1978 (WA) – which is in materially similar terms to section 235(1) of the MRA – included persons authorised by the lessee of a mining lease to mine for their own account. Ipp J, with whom Pidgeon J agreed, held that it did. His Honour said:6 [emphasis added] “Mr McCusker QC, senior counsel for the respondent, submitted that the Mining Act 1978 (WA) did not permit the respondent to allow the appellant to carry out mining operations on a tenement held by the respondent in its name. He relied on s 85(1), which relevantly provides: “(1) Subject to this Act, a mining lease authorises the lessee thereof and his agents and employees on his behalf to – (a) work and mine the land in respect of which the lease was granted for any minerals; (b) take and remove from the land any minerals and dispose of them.” Mr McCusker submitted that if the appellant were to mine for its own account on the respondent’s mining lease, it would not be an agent of the respondent. Therefore, mining operations so carried out would not be permitted by s 85(1). Undoubtedly, in such circumstances, the appellant would not be an agent at common law. Nevertheless, the Mining Act appears to contemplate a party other than the holder of a mining lease carrying out mining operations. Such a conclusion is to be drawn from s 82(1)(d), which provides: “(1) Every mining lease shall contain and be subject to the prescribed covenants by the lessee and in particular shall be deemed to be granted subject to the conditions that the lessee shall … (d) not assign, under-let or part with possession of such land or any part thereof without the prior written consent of the Minister, or of an officer of the Department acting within the authority of the Minister.” It is not possible to assign land; therefore, “land” in s 82(1)(d) must mean something else. In its context, it can only mean the rights to the mining lease over the land concerned. “Under-let” has a like meaning; namely, the under-letting of the mining lease concerned. It follows that s 82(1)(d) contemplates that the holder of a mining lease, with the prior written consent of the Minister or an officer of the Department acting with the Minister’s authority, may lawfully assign its rights to a mining lease or under-let the mining lease (and part with possession of the land the subject of the mining lease). If that be correct, and in my view s 82(1)(d) cannot be otherwise construed, the word “agents” in s 85(1) must have an extended meaning. Without such an extended meaning, it would not be possible for the holder of a mining lease to “assign, under-let or part with possession” in the way contemplated by s82(1)(d). Mr Zelestis QC, senior counsel for the appellants, submitted that “agents” must mean persons authorised by the lessee of a mining lease. In my view, this submission must be accepted. It follows that, under the Mining Act, the respondent would be permitted to authorise the appellant to mine for base minerals on mining leases of which the respondent was the holder.” 5 (2000) 22 WAR 101. This case was drawn to Mr Houen’s attention by the Deputy President on 03.04.01: see ts pp. 18 L8-19 L37. 6 At 107 [12] – 108 [14]. -- 3 of 4 -- [8] The MRA contains a materially similar provision to section 82(1)(d) of the Western Australian Act: see section 276(1)(e), which provides that each mining lease shall be subject to a condition that the holder shall not assign, sublease or mortgage the mining lease or any part thereof without the consent in writing of the Minister. [9] I respectfully agree with the views expressed by Ipp and Pidgeon JJ. In my opinion, section 235(1) of the MRA should be similarly construed, such that the word “agent” has an extended meaning and includes persons authorised by the lessee of a mining lease. [10] There was no evidence adduced by the present Applicant before the Deputy President about whether Ministerial consent under section 276(1)(e) had been obtained; and in any event it was not submitted by Mr Houen that absent such consent, any purported assignment or sublease would be invalid or of no force. [11] It follows in my view that the Applicant has not demonstrated that there is a serious issue about whether the Respondent was engaged in “illegal mining” on the mining lease area. Accordingly the proposed appeal would not enjoy reasonable prospects of success. [12] Leave to appeal is therefore refused. -- 4 of 4 --