ACI Operations Pty Ltd (Applicant) and Quandamooka Land Council Aboriginal Corporation (Objector), Re [2000] QLRT 9

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re ACI Operations Pty Ltd (Applicant) and Quandamooka Land Council Aboriginal Corporation (Objector) [2000] QLRT 9 PARTIES: ACI Operations Pty Ltd and Quandamooka Land Council Aboriginal Corporation. FILE NO/S: LXX40043/2000/1 PROCEEDING: Applications for stating of preliminary questions DELIVERED ON: 1 December 2000 DELIVERED AT: Brisbane HEARING DATE: 1 December 2000 PRESIDING MEMBER: Koppenol P ORDER/S: Particular preliminary questions stated. (at [6]) CATCHWORDS: MINING – MINING LEASE – NATIVE TITLE – OBJECTION – APPLICATION FOR STATING OF PRELIMINARY QUESTIONS – whether appropriate Mineral Resources Act 1989, ss. 652, 727 Uniform Civil Procedure Rules 1999, rr. 482-486 Bass v. Permanent Trustee Co Ltd (1999) 198 CLR 334, applied COUNSEL: Mr H. Fraser QC, for the Applicant Mr A. Preston, for the State of Queensland Mr S. Keim, for the Objector SOLICITORS: Zoë Farmer (Lawyer), for the Applicant C.W. Lohe (Crown Solicitor) for the State of Queensland S. McDougall (Legal Officer), for the Objector REASONS FOR JUDGMENT [1] KOPPENOL P: This is an application for the grant of a mining lease. A number of parties filed objections to the proposed grant. One of those parties, -- 1 of 3 -- the Quandamooka Land Council Aboriginal Corporation (Quandamooka), included as ground 1(a) of its objection the following: “Ground 1 The applicant has failed to comply with relevant provisions of the Mineral Resources Act 1989 (MRA). Facts and circumstances relied upon (a) The applicant has failed to comply with section 652 of the MRA, requiring the applicant to give written notice to Dale Alfred Eugene Ruska and Ian Delaney (“the native title notification parties”) about the proposed mining lease.” [2] An issue has arisen as to whether that ground should be the subject of a preliminary question for the determination by the Tribunal. [3] The resolution of appropriate preliminary questions is a procedure envisaged by rr. 482-486 of the Uniform Civil Procedure Rules 1999 and by the High Court in Bass v. Permanent Trustee Co Ltd (1999) 198 CLR 334. But as was stressed in the joint judgment in Bass at 358: “[T]hat will be so only if the questions are capable of final answer and are capable of being answered in accordance with the judicial process.” 1 [4] The applicant for the mining lease, ACI Operations Pty Ltd (ACI), contends that a particular form of question should be raised for argument.2 The State of Queensland supports that contention. The objector, Quandamooka, supports the determination of a preliminary question, but its proposed questions3 – whilst raising some broadly similar issues (for example, its suggested question 2(a)) 1 E.g., ensuring that hypothetical or advisory questions are not answered and that all relevant facts are either agreed or found: see Bass at 357-359. 2 The questions suggested by ACI were as follows: “1. Whether ground 1(a) of the Quandamooka objection is wrong because: (a) Even assuming that the granting of the mining lease would have been an act to which the right to negotiate provisions applied, the effect of the Transitional Provisions of the Mineral Resources Act 1989 (esp. ss. 725 and 732) is that the written notice under s. 652 must be given no earlier than the “notification commencement day for the application”. (b) There was not any “notification commencement day” as defined in s. 726 because the mining registrar has not given notice under s. 727. (c) Section 652 therefore did not impose any obligation on ACI to give any notice to any native title notification parties. 2. In any event, directions should be given for the hearing of the objections lodged under s. 260 of the Mineral Resources Act.” 3 The questions suggested by Quandamooka were as follows: “Question 1 Is the status of a mining lease granted pursuant to MLA 7064 as a ‘past act’ relevant to the following question – Is the jurisdiction of the Land and Resources Tribunal lacking or limited because of Mineral Resources Act 1989 (Qld) ss. 652, 671, 672 or 676? Question 2 (a) Whether the matter raised by objection 1(a) properly arises in the absence of a s. 727(1) notice? (b) If the answer to (a) is that it does not, should objection 1(a) be summarily dealt with or should it be adjourned on the basis that a s. 727(1) notice may be served at a future date?” -- 2 of 3 -- also appear to raise issues concerning whether the proposed grant of the mining lease concerned was a past act or a future act and therefore whether the right to negotiate4 would have applied – and related issues concerning the Tribunal’s jurisdiction. Similarly, whether or not the mining registrar should have given a notice to the applicant under s. 727 of the Mineral Resources Act 1989 – a precondition, in the submission of Mr Fraser QC, to the operation of s. 652 – is an issue not raised in ground 1(a) of the Quandamooka objection. Those issues are doubtless ones of great importance, but they are not ones which are raised in ground 1(a) of the subject objection. [5] The draft questions put forward by ACI are framed in a way which would enable the Tribunal to decide if the subject objection, in its terms, can be made out – even assuming that the grant of the proposed mining lease would have been an act to which the right to negotiate applied. In other words, it enables the validity or otherwise of the objection to be decided, even if the proposed grant were not a past act. A question so framed would enable that aspect of this application to be decided expeditiously, and any appropriate directions to then be given for the conduct of the balance of the case. I propose therefore to state questions broadly in the form raised by ACI. [6] [Following further submissions as to the wording of the questions,] I order that the following questions will be the questions which will be raised for argument on Friday next week: “1. Whether ground 1(a) of the Quandamooka objection is wrong because: (a) Even assuming that the granting of the mining lease would have been an act to which the right to negotiate provisions applied, the effect of the transitional provisions of the Mineral Resources Act 1989 (especially sections 725 and 732) is that the written notice under section 652 must be given no earlier than the ‘notification commencement day for the application.’ (b) There was not any ‘notification commencement day’ as defined in section 726 because the mining registrar has not given notice under section 727. (c) Section 652 therefore did not impose any obligation on ACI to give any notice to any native title notification parties. 2. In any event, directions should be given for the hearing of the objections lodged under section 260 of the Mineral Resources Act.” 4 See Native Title Act 1993 (Cth), ss. 25ff, 43: Mineral Resources Act 1989, s. 650 ff. -- 3 of 3 --