Buka Minerals (Lady Loretta) Pty Ltd and Another, Re [2001] QLRT 62

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Buka Minerals (Lady Loretta) Pty Ltd and Another [2001] QLRT 62 PARTIES: In the Matter of Application for Mining Lease No. 90145 by Buka Minerals (Lady Loretta) Pty Ltd and Another FILE NO: LXX40034/2001 PROCEEDING: Application for mining lease DELIVERED ON: 21August 2001 DELIVERED AT: Brisbane HEARING DATE: 7 August 2001 PRESIDING MEMBER: Koppenol P ORDERS: 1. I am not satisfied that the Applicants have demonstrated (on the present material) that this Application may be dealt with by the Tribunal without the notices under s. 652 of the Mineral Resources Act 1989 having been given by the Applicants. (at [22]). 2. I adjourn the matter to 10am on Tuesday 28 August 2001 for submissions by the Applicants as to the future conduct of this Application. (at [23]). CATCHWORDS: MINING – MINING LEASE APPLICATION – NATIVE TITLE NOTICES – WHETHER NECESSARY Mineral Resources Act 1989, ss. 245, 252, 269(4), 650, 652, Part 19 Native Title Act 1993 (Cth), ss. 13A, 19, 23A, 23B, 23C, 26D, 228, Sch 1 Pt 3 Item 21(9) Land Act 1962 Racial Discrimination Act 1975 (Cth) Mining Act 1968 Native Title (Queensland) Act 1993, s. 8 Constitution, s. 109 Land and Resources Tribunal Act 1999, s.49(2)(b) -- 1 of 9 -- ACI Operations Pty Ltd v. Quandamooka Lands Council Aboriginal Corp [2001] QCA 119, distinguished Re Savage Togara Coal Pty Ltd [1999] 2 QdR 307, followed Mabo & Ors v. The State of Queensland [No. 2] (1992) 175 CLR 1, referred to State of Western Australia v. The Commonwealth [Native Title Act case] (1995) 183 CLR 373, applied The Members of the Yorta Yorta Aboriginal Community v. The State of Victoria & Ors [1998] 1606 FCA; 4 AILR 91, followed La Macchia & Ors v. Minister for Primary Industries and Energy & Anor (1992) 110 ALR 201, followed Anteden Pty Ltd v. Glen Eira City Council & Ors [2000] VSC 366, followed Skyring v. Electoral Commission of Queensland & Anor [2001] QSC 80, followed Fourmile v. Selpam (1998) 80 FCR 151, followed COUNSEL: N/A SOLICITORS: Ms Z. Farmer, for the Applicants AGENTS: Mr B. Ruffles (Land and Resource Solutions Pty Ltd), for the Applicants [1] KOPPENOL P: This is an Application (for ML 90145) by Buka Minerals (Lady Loretta No 2) Pty Ltd and Buka Minerals (Lady Loretta) Pty Limited (the Applicants) under s. 245 of the Mineral Resources Act 1989 (the Act) for the grant of a mining lease. The land concerned is situated 130km north-west of Mt Isa. The lease is sought for the mining and treatment of silver ore, arsenic ore, gold, barium/barytes/barite, cadmium ore, cobalt ore, copper ore, mercury ore, lead ore, silica/silicon/rock crystal, thallium and zinc ore. [2] The Application was lodged with the mining registrar for the Mt Isa mining district on 22 January 2001. No objection to the Application was lodged during the public objection period, which ended on 6 July 2001. Background [3] The subject Application is presently part of an existing and granted mining lease (ML 5568) which is held by the Applicants. ML 5568 incorporates 2 “resources” – -- 2 of 9 -- described as “Lady Loretta” and “Lady Annie”. “Lady Loretta” is a zinc/lead resource and “Lady Annie” is primarily copper. To facilitate and effectuate certain arrangements entered into between the Applicants and a third party company (Noranda Pacific Pty Limited (Noranda)), the Applicants desire to have a separate mining lease (this Application) granted to them for the “Lady Annie” part of ML 5568, to conditionally surrender that part of ML 5568 (the condition being that this Application (for ML 90145) is granted) and to assign a 75% interest in ML 5568 to Noranda. ML 90145 is sought to be limited in depth (to about 149m) – such that ML 5568 would continue to exist below that depth. It was submitted that the proposed ML 90145 would effectively be carved out of ML 5568 in both area (in that it would occupy only a portion of the area) and depth (in that it would only extend to 149m below the surface). [4] On 1 June 2001, the mining registrar issued a certificate of application under s. 252 for this Application – thus certifying that the Applicants were eligible to apply for this mining lease and had complied with the requirements of the Act with respect to the Application. That certification does not of course relate to a number of statutory requirements which are also applicable – such as the various criteria set out in s. 269(4) which the Tribunal is required to take into account and consider when making its statutory recommendation, and whether the native title provisions of the Act are either not applicable or have been complied with. It is convenient for present purposes to immediately turn to the issue of native title. Native title [5] The subject land is covered by 2 native title claims (lodged in the Federal Court).1 The Applicants’ solicitor submitted that the native title provisions of the Act, which require notification, consultation and negotiation, did not apply as any native title may already 1 Exhibit 12 (letter dated 14 August 2001 from the Applicants’ solicitor, enclosing copies of register extracts from the National Native Title Tribunal) reveals claims by the Indjilandji People (QG6170/98, registered 23 December 1997) and by the Kalkadoon People (Q6011/99, registered 20 April 1999 and QG6029/98, registered 30 May 1996). Exhibit 13 (letter dated 21 August 2001 from the National Native Title Tribunal to the Land and Resources Tribunal – requested pursuant to s. 49(2)(b) of the Land and Resources Tribunal Act 1999) reveals claims by the Indjilandji/Dithannoi People (QG6170/98, accepted 30 September 1999) and by the Kalkadoon People (QG6031/99, accepted 19 November 1999). Exhibit 13 also states that “the above information is not an indication that native title exists in relation to this land and/or water. This cannot be certain until the Federal Court makes a determination that native title does or does not exist in relation to this area.” -- 3 of 9 -- have been extinguished, or because of certain other circumstances (which are outlined below). [6] If the Applicants’ submissions about the inapplicability of the native title provisions of the Act are correct, it would then be appropriate for me to address the question of whether a recommendation should be made that this Application should be granted. Detailed submissions were made by the Applicants to address the relevant statutory criteria in that regard. However, if the Applicants’ submissions about the inapplicability of the native title provisions were not correct, it would be inappropriate, in my view, to proceed to consider the other mining lease application criteria. Unless the native title provisions were inapplicable or had been complied with – and I do not understand them to have been complied with, there would be no present utility in proceeding to consider whether a recommendation for grant should be made. [7] It should also be noted at the outset that the Court of Appeal’s recent decision in ACI Operations Pty Ltd v. Quandamooka Lands Council Aboriginal Corporation2 is distinguishable because in this case (unlike ACI), the Application is not an application subject to the Transitional Provisions under Part 19 of the Act – and so the question of whether the notices under s. 652 of the Act (which would have activated the statutory native title process)3 should be given is one for the Applicants and not for the mining registrar. So much was in fact accepted by the Applicants’ solicitor during submissions.4 Thus the real question here is whether the Applicants should have given the s. 652 notices. Arguments [8] Two arguments were advanced by the Applicants to establish that the relevant native title provisions did not apply. They were that the right to negotiate process in the Native Title Act 1993 (Cth) (NTA) (which is imported into the Act by s. 650(1)(b)(ii) 2 [2001] QCA 119. 3 Section 652 requires an applicant for a mining lease to give a written notice about the proposed mining lease to all native title notification parties for the land and to the Native Title Registrar. An applicant is also required to publish certain public notices containing specified information. Time limits apply to the notification requirements. 4 Transcript 7 August 2001, pp 24 L51–26 L10. -- 4 of 9 -- and is concerned with various “future acts”)5 was not applicable – and therefore s. 652 was not applicable – because the grant of ML 90145 would be: (a) a “past act” under the NTA; and/or (b) the renewal, regrant or remaking of the earlier mining lease under s. 26D of the NTA – to which the right to negotiate does not apply.6 [9] For completeness, I should mention that 2 other arguments were referred to by the Applicants’ solicitor. These were said to “potentially” extinguish native title, or to be an “extinguishment possibility”. Naturally, if native title was extinguished, s. 652 of the Act could not relevantly apply. The first related to the suggested effect upon native title of the grant in 1984 of a lease for special purposes under the Land Act 1962 for industrial and grazing purposes – and whether such a lease could constitute a Scheduled interest under the NTA (which statutorily extinguishes native title),7 even though such a lease is not expressly listed in the NTA8 as one of the 434 separate Land Act 1962 etc leases which have that effect. The other was said to be a “complicated argument” that that special lease conferred a right of exclusive possession, and if it did, it would constitute a previous exclusive possession act under s. 23B(2)(c)(viii) of the NTA – and so effect an extinguishment of native title. However the Applicants’ solicitor informed me that she did not “wish to run” or “wish to develop” those arguments.9 In those circumstances, there is therefore no need for present purposes for them to be further addressed or considered. [10] I turn now to the first of the Applicants’ serious submissions about the suggested inapplicability of the native title provisions of the Act – namely that the grant of ML 90145 would be a past act under the NTA. Past act [11] The expression “past act” is defined in s. 228 of the NTA. Various categories etc are set out but as I understand the Applicants’ argument, it was that the proposed grant of ML 5 “Future act” is defined in s. 233 of the NTA. 6 NTA, s. 26D(1). 7 NTA, ss. 23A(2), 23B(2) & 23C(1)(a). 8 In Schedule 1 Part 3 Item 21(9). 9 Transcript 7 August 2001, p. 28 LL32-50. -- 5 of 9 -- 90145 would be the regrant of an earlier mining lease under s. 228(4) & (5) – and so constitute a “past act” as provided in those sub-sections. However, it is a precondition to an act’s being a past act that (relevantly) apart from the NTA, “the act was invalid to any extent, but it would have been valid to that extent if the native title did not exist”.10 [12] Ms Farmer relied upon as part of her submissions an Opinion dated 25 July 2000 by Mr H.B. Fraser QC.11 That Opinion addressed the invalidity argument.12 Mr Fraser thought that invalidity may have been produced by the combined effect of the Racial Discrimination Act 1975 (Cth) (RDA) upon the grant in 1984 of ML 8052 (which was later renumbered as ML 5568) in the context of native title inconsistent with the grant.13 However, Mr Fraser also very properly pointed out 2 difficulties with this argument, namely: 14 (a) An opposing view is that the RDA only gives a right of compensation to the native title holders but leaves the lease intact; (b) It is in any case an artificial, if not impossible, exercise to attempt to resolve the invalidity issue absent knowledge of what native title in fact exists. [13] The precise reason that the RDA was thought to have possibly invalidated ML 8052 was not expressly addressed in Mr Fraser QC’s Opinion – or in Ms Farmer’s submissions. It may be that the relevant statutory procedures under the then Mining Act 1968 (which applied at the time that ML 8052 was granted), entitling landowners to notice and compensation etc, were not observed – and that upon the recognition in 1992 by the High Court of native title,15 the RDA may then have had the effect of invalidating the grant made 8 years earlier. I do not know. No factual material was filed in respect of this point and no submissions were made about it. 10 NTA, s. 228(2)(b). 11 Exhibit 9. 12 At p. 6. 13 The High Court has said that the chief, and perhaps the only, way in which the existence of native title might have produced invalidity in a past act attributable to a State or Territory is by attracting the overriding operation of the RDA: see State of Western Australia v. The Commonwealth [Native Title Act Case] (1995) 183 CLR 373, 454. 14 Exhibit 9, p. 6. 15 Mabo & Ors v. The State of Queensland [No. 2] (1992) 175 CLR 1. -- 6 of 9 -- [14] With respect to Mr Fraser’s second point (as above), he cited in support of it Demack J’s judgment in Re Savage Togara Coal Pty Ltd.16 His Honour held that unless the precise rights and interests of the putative native title are known, it is impossible to say whether or not a Crown-granted lease was invalid or will extinguish some or all of that native title. Demack J’s approach was later followed by Olney J of the Federal Court in The Members of the Yorta Yorta Aboriginal Community v. The State of Victoria & Ors.17 Although neither of those cases is binding upon me, the principle of judicial comity would suggest that unless I was convinced that that approach was wrong, I should follow it.18 I have therefore carefully considered the approach adopted in those cases and have concluded that I should follow it. [15] In the present case, no determination of native title19 in respect of the subject land has yet been made. Thus the precise rights and interests of the putative native title have not yet been established. It is therefore impossible to say whether or not the grant of ML8052 was invalid or extinguished some or all of that native title. [16] Accordingly, in the circumstances, and having regard to the material that is presently before me, I am not satisfied that the original grant of ML 8052 was invalid to any extent. It follows that I am not satisfied that the proposed grant of ML 90145 would be a past act under the NTA. Renewal etc [17] The Applicants’ argument here is that the proposed grant of ML 90145 would be covered by s. 26D of the NTA – which expressly exempts from the right to negotiate the renewal, regrant or remaking of an earlier right to mine. In the present case, the earlier right to mine was created by the grant of ML 8052 (later renumbered as ML 5568). [18] Relevantly, 4 criteria are specified in s. 26D(1) for the operation of s. 26D, namely: 16 [1999] 2 QdR 307. 17 [1998] 1606 FCA, at [5], [131]; 4 AILR 91, 94, 112-113. 18 See, eg, La Macchia & Ors v. Minister for Primary Industries and Energy & Anor (1992) 110 ALR 201, 204 (FCA); Anteden Pty Ltd v. Glen Eira City Council & Ors [2000] VSC 366, at [25]. 19 See NTA, s. 225. -- 7 of 9 -- (a) the earlier right to mine was created on or before 23 December 1996 by an act that is valid (which relevantly includes a validated past act); and (b) the area to which the earlier right relates is not extended; and (c) the term of the right is not longer than the term of the original right; and (d) no rights are created in connection with the right that were not created in connection with the earlier right. [19] The first criterion creates a logical conundrum for the Applicants. That is, in order to demonstrate that the earlier mining lease was valid, 2 possibilities must be considered. First, if native title did not exist in respect of the subject land, then absent evidence of any invalidity, the presumption of regularity20 may assist in establishing the validity of the grant. Secondly, if native title did then exist, all relevant statutory preconditions may have been complied with (including the giving of notice and compensation to the native title holders), or that may not have occurred. If it did not occur, the grant may be invalid due to the operation of the RDA and s. 109 of the Constitution. If the grant were so invalid, it would constitute a past act under s. 228(2)(b) of the NTA and consequently be validated by ss. 13A & 19 of the NTA and s. 8 of the Native Title (Queensland) Act 1993.21 [20] Thus in either situation, the very point which concerned Demack J in Savage Togara Coal (and to which I have already adverted: see [14] above) becomes pivotal. In other words, unless it is known whether (and if so, what) native title existed at the time of the grant of ML8052 in 1984, the question of whether that grant was valid cannot be answered. [21] No material to address these factual and other issues was submitted by the Applicants. And as I have previously observed, no determination of native title has yet been made in respect of the subject land. It follows that in the absence of such material etc, the first of the s. 26D criteria cannot presently be established. In that event, it is unnecessary to consider whether the other statutory criteria could be made out. Based upon the present 20 See, eg, Skyring v. Electoral Commission of Queensland & Anor [2001] QSC 80, at [27]; Fourmile v. Selpam (1998) 80 FCR 151 (FC), per Drummond J at 168G. -- 8 of 9 -- material, I am therefore not satisfied that the provisions of s. 26D of the NTA would apply to the proposed grant of ML90145. Conclusions and Orders [22] For the reasons previously set out, I am not satisfied that the Applicants have demonstrated (on the present material) that this Application may be dealt with by the Tribunal without the notices under s. 652 of the Act (which activate the native title process) having been given by the Applicants. It follows that it is not presently necessary for me to address the various criteria set out in s. 269(4) of the Act which would otherwise require consideration (as to whether a recommendation for grant should be made). [23] In the circumstances, I will give the Applicants the opportunity to make submissions as to the future conduct of their Application. The matter will therefore be adjourned to 10am on Tuesday 28 August 2001 for that purpose. 21 Sections 13A & 19 of the NTA allow States and Territories to validate certain acts that took place before 1 January 1994 and would otherwise be invalid because of native title. Section 8 of the Native Title (Queensland) Act 1993 provides that “[e]very past act attributable to the State is valid, and is taken always to have been valid.” -- 9 of 9 --