ACI Operations Pty Ltd (Applicant) and Quandamooka Lands Council Aboriginal Corporation and Others (Objectors) (No 2), Re [2000] QLRT 14

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re ACI Operations Pty Ltd (Applicant) and Quandamooka Lands Council Aboriginal Corporation and Others (Objectors) [No 2] [2000] QLRT 14 PARTIES: ACI Operations Pty Ltd, Quandamooka Lands Council Aboriginal Corporation, Redland Shire Council and Peter Heathwood FILE NO/S: LXX40043/2000/1 PROCEEDING: Application for further directions DELIVERED ON: 19 December 2000 DELIVERED AT: Brisbane HEARING DATE: 15 December 2000 PRESIDING MEMBER: Koppenol P ORDER/S: 1. Held: That s. 269(4)(a) of the Mineral Resources Act 1989 (MRA) refers to compliance by all relevant parties with all relevant provisions of the MRA. (at [17]) 2. Various directions given, regarding: (a) filing and service of outlines of matters of compliance or non-compliance with MRA, issues in dispute and evidence to be adduced. (at [21]) (b) reference of the matter to mediation and report back. (at [21]) (c) listing for further directions. (at [21]) (d) provision of copy of Reasons for Judgment to Crown Solicitor. (at [22]) CATCHWORDS: MINING – MINING LEASE – APPLICATION FOR FURTHER DIRECTIONS – whether s. 269(4)(a) of Mineral Resources Act 1989 limited to examination of compliance by applicant with technical requirements of Act Mineral Resources Act 1989, ss. 232-318, 252(1), 266, 267(a), 268(1), 268(2), 268(3), 269(4), 270(1)(a), 270(2), 727 -- 1 of 8 -- Land and Resources Tribunal Act 1999, s. 49(1)(b) Sinclair v. Mining Warden at Maryborough (1975) 132 CLR 473, referred to Murphy v. Farmer (1988) 165 CLR 19, applied Queensland Decor Aggregates Pty Ltd v. Cadman (Supreme Court of Queensland (White J), 4 August 1997, Unreported), considered Re ACI Operations Pty Ltd (Applicant) and Quandamooka Land Council Aboriginal Corporation (Objector) [2000] QLRT 9, considered COUNSEL: Mr S. Keim, for Quandamooka Lands Council Aboriginal Corporation (Objector) SOLICITORS: Ms Z. Farmer (solicitor), for ACI Operations Pty Ltd (Applicant) Mr S. McDougall (Legal Officer), for Quandamooka Lands Council Aboriginal Corporation (Objector) Mr P. Smith (solicitor), Deacons Lawyers, for Redland Shire Council (Objector) Mr P. Heathwood (in person,) (Objector) REASONS FOR JUDGMENT [1] KOPPENOL P: In this application for the grant of a mining lease, further directions are sought for the timetabling of future steps and as to the relevant scope of s. 269(4)(a) of the Mineral Resources Act 1989 (MRA). [2] The substantive application is for a sand mining lease on North Stradbroke Island. There are 3 extant objections to the application. [3] Section 269(4)(a): It is convenient to deal with the s. 269(4)(a) point at the outset because of its relevance to the directions which should be made in this matter. That point arose in the context of submissions about whether the Tribunal could consider whether the relevant mining registrar should have issued a particular notice under the MRA native title provisions (specifically, s. 727) – and therefore whether the mining registrar complied with the MRA in not issuing the notice. [4] Section 269(4) provides as follows: “(4) The tribunal, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether – -- 2 of 8 -- (a) the provisions of this Act have been complied with; and (b) the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and (c) if the land applied for is mineralised there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and (d) the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape; and (e) the term sough is appropriate; and (f) the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and (g) the past performance of the applicant has been satisfactory; and (h) any disadvantage may result to the rights of – (i) holders of existing exploration permits or mineral development licences; or (ii) existing applicants for exploration permits or mineral development licences; and (i) the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and (j) there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and (k) the public right and interest will be prejudiced; and (l) any good reason has been shown for a refusal to grant the mining lease; and (m) taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.” [5] It will be observed that 13 criteria are expressly required to be taken into account and considered by the Tribunal when making a recommendation to the Minister that an application for a mining lease be granted. The existence of such extensive and wide- ranging preconditions is consistent with the important examination and assessment process which is required to be fulfilled by the Tribunal. Self-evidently, that function is much greater than the mere oversight of the formalities of an application.1 [6] The applicant for the mining lease (ACI Operations Pty Ltd) submitted that s. 269(4)(a) was confined to an examination of compliance by the applicant with, in effect, the technical requirements of the Act. That submission was opposed by one of the objectors, Quandamooka Lands Council Aboriginal Corporation (Quandamooka), which submitted that s. 269(4)(a) referred to compliance by all relevant persons with all of the (relevant) provisions of the Act. The Quandamooka native title claim group has a registered native title claim over the mining lease application area. [7] In its terms, s 269(4)(a) is not limited to the provisions of any particular sections or part of the MRA or to compliance by any particular party or person. Relevantly, various parties (the applicant and the objectors) and other persons (including the mining registrar and the Minister) have various obligations under the MRA. The wording of s. 269(4)(a) may be contrasted with other sections of the MRA, which expressly refer to 1 Cf. Sinclair v. Mining Warden at Maryborough (1975) 132 CLR 473, 479. -- 3 of 8 -- compliance by the applicant with the requirements of the Act with respect to the application: see, e.g., ss. 252(1), 266 and 267(a). Although the presumption of consistent use of a word readily yields to the statutory context,2 the different wording employed in those other sections is noteworthy, and suggests that the scope of s. 269(4)(a) should not be limited in the way suggested. [8] Also significant is the wording in s. 270(1)(a). That section permits the Tribunal to dispense with a hearing in certain circumstances, if (amongst other things): “(a) the provisions of this part (other than the provisions requiring the hearing) have been complied with in respect of the application”. The reference to “this part” is to part 7 of the MRA, which contains ss. 232 to 318 – and therefore includes s. 269(4)(a). Thus when considering dispensing with a hearing, the Tribunal must consider whether the s. 269(4) criteria have been made out. That must also be expressly referred to in any recommendation: see s. 270(2). [9] In its original form, s. 270 was numbered s. 7.27. The Explanatory Notes for the Mineral Resources Bill 1989 contained (at p. 53) the following explanation of cl. 7.27: [emphasis added] “Clause 7.27 – Procedure where no objections lodged. This clause provides that the Warden may dispense with a hearing where there are no objections to the grant of a mining lease and the Warden is satisfied the provisions of the legislation have been complied with, where surface of reserve land is involved the owner has consented, where land is involved that this legislation requires an owner’s consent to the entry to that land, that consent has been given. A Warden who dispenses with a hearing shall indicate in his recommendation that he has taken into account the required criteria in relation to assessment of the application that he would have if there had been a hearing.” This passage lends no support for the view that s. 269(4)(a) has a limited scope of operation. [10] The applicant relied upon some comments by White J in Queensland Decor Aggregates Pty Ltd v. Cadman.3 In that case, the mining warden had made a recommendation to the Minister that a mining lease be granted and an unsuccessful objector sought a declaration under s. 370 of the MRA that the grant would be invalid because of non- compliance with the MRA. Her Honour considered and rejected each of the grounds advanced, and also observed that the mining warden had dealt with each of the s. 269(4) matters and that the Supreme Court application was not an application to 2 See, e.g., Murphy v. Farmer (1988) 165 CLR 19, 27. -- 4 of 8 -- judicially review the mining registrar’s decision to issue a certificate of application. However the precise scope of s. 269(4)(a) was not specifically considered in the Queensland Decor case and her Honour’s comment about judicial review related to the role of the Supreme Court in a s. 370 application, rather than the role of the mining warden (and now this Tribunal) under s. 269(4). I am therefore unable to see that the Queensland Decor case lends any support for the applicant’s contentions in this matter. Reliance was also placed by the applicant upon a number of Wardens Court decisions. However none of them specifically considered the present question – namely the precise scope of s. 269(4)(a). [11] The applicant also submitted that s. 268(3) would prevent an objector leading evidence about the mining registrar’s actions. Although s. 268(3) expressly prevents evidence in relation to any ground of objection being led if the ground is not contained in an objection, that provision is, by its terms, confined to objections. That is not the issue here. [12] By way of contrast, s. 268(1) provides that at the hearing, the Tribunal shall hear the application and any objections “and all other matters that pursuant to this part are to be heard, considered or determined by the Tribunal in respect of that application”. Section 268(2) goes on to provide that at that hearing, the Tribunal shall take such evidence, hear such persons and inform itself in such manner as it considers appropriate “in order to determine the relative merits of the application, objections (if any) and other matters”. In the context of s. 268(1), the reference to “other matters” is undoubtedly to those other matters that under part 7 of the MRA (which includes s. 269(4)(a)), are to be considered. This suggests a much broader scope to s. 269(4)(a) than that contended for by the applicant. [13] Reference was also made by the applicant to my previous decision in Re ACI Operations Pty Ltd (Applicant) and Quandamooka Land Council Aboriginal Corporation (Objector) [2000] QLRT 9. However that only decided that certain preliminary questions should be raised for argument. The scope of s. 269(4)(a) was not addressed and indeed I commented that whether or not the mining registrar should have given the subject notice was an issue of great importance, albeit one which was not raised in the objection concerned: see at [4]. 3 Supreme Court of Queensland, 4 August 1997, Unreported. -- 5 of 8 -- [14] To permit the Tribunal to receive evidence and submissions at the hearing about whether all of the provisions of the MRA have been complied with is not, in my opinion, to permit a “back door” judicial review or to deny anyone natural justice or to go beyond the intended scope or objectives of the legislation – as was submitted by the applicant. Rather, it is to be faithful to the express wording of the legislation and to fully comply with the statutory duty and obligation which is required to be fulfilled by the Tribunal when performing its important statutory function under s. 269(4). Obviously, if an application under s. 270 were made by an applicant to dispense with a hearing in a particular case, the fundamental necessity to extend procedural fairness to all affected parties and to make appropriate directions would ensure that no prejudice would be suffered by an applicant if s. 269(4)(a) were not given the narrow construction sought. [15] If the Tribunal were not able to go beyond considering whether the applicant had complied with the various technical requirements of the MRA, the Tribunal would in effect be certifying (in any recommendation that an application for a mining lease be granted) to the Minister that the provisions of the Act had been complied with – when the true position may be quite to the contrary, if other provisions of the Act had not been complied with. That is such an extraordinary result that one would have thought that clear and unmistakable statutory language would necessarily have been used to effect it. As will be apparent, I do not regard the wording of s. 269(4)(a) to be so limited. [16] Quandamooka submitted that the scope of s. 269(4)(a) relevantly extended to: “(a) requiring the Land and Resources Tribunal to identify, as a matter of law, the provisions of the MRA for which compliance is required by any person in relation to mining lease application MLA7064 (for example, whether or not the mining registrar is required to issue a notice of a “notification commencement day” under MRA s. MRA s. 727(1)(a)); and (b) where the Land and Resources Tribunal concludes that compliance is required as a matter of law, requiring the Land and Resources Tribunal to take into account and consider whether or not that compliance has in fact occurred.” [17] Having regard to the foregoing and to the meaning of the word “comply” (“to act in accordance with, and fulfilment of , … conditions or regulations”),4 I have concluded 4 See The Oxford English Dictionary, 2nd ed (1989) vol. III, p. 619. -- 6 of 8 -- that the Quandamooka submission is correct and that s. 269(4)(a) refers to compliance by all relevant persons with all of the relevant provisions of the MRA. [18] Directions: The Tribunal is required to act as quickly as is consistent with a fair and proper consideration of the issues before it.5 [19] Because one of the issues to be considered at the hearing is whether all relevant provisions of the MRA have been complied with by all relevant parties including the mining registrar (rather than, as was suggested by the applicant and 2 of the objectors in their proposed draft orders, that the issues in dispute are those raised in the objections), it will be necessary for each of the parties to focus upon which matters of compliance or non-compliance with the MRA that party would seek to adduce evidence. Naturally, the issues in dispute as raised in the various objections should also be specifically identified. [20] In addition, this is a case where mediation may well be useful and should be attempted. I presently see no benefit in making any further directions until those steps have been taken. [21] Accordingly I give the following directions: (1) Direct that on or before 9 February 2001, each of the parties file and serve: (a) an outline addressing: (i) those matters of compliance or non-compliance with the MRA; and (ii) those issues in dispute as raised in the various objections; on which that party would seek to adduce evidence at the hearing. (b) an outline of the evidence intended to be adduced by that party on each such matter and issue. (2) Direct that this matter be referred forthwith to the Director of the Alternative Dispute Resolution Division of the Department of Justice and Attorney-General for mediation pursuant to the Land and Resources Tribunal Act 1999. The Director is requested to report to me in writing by 23 February 2001 on the progress of the mediation. (3) This matter will be listed for further directions at 10.00 am on 27 February 2001. 5 Land and Resources Tribunal Act 1999, s. 49(1)(b). -- 7 of 8 -- [22] Because of the previous involvement of the State of Queensland in this application and having regard to the directions just made, I also direct the Registrar to provide a copy of these Reasons for Judgment to the Crown Solicitor for the State of Queensland forthwith. -- 8 of 8 --