CRA Exploration Pty Ltd & Anor v Walden & Ors [1995] QMW 33

IN THE WARDENS COURT AT BRISBANE IN THE STATE OF QUEENSLAND BETWEEN: AND: CRA EXPLORATION PTY LTD & CENTURY ZINC LIMITED CLARENCE WALDEN & CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION REGINALD CARL TON & CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION MLA Nos 90045 & 90058 Applicants First Objectors Second Objectors . At the callover this morning Mr Plunkett of Counsel on behalf of -· Carpentaria Land Council Aboriginal Corporation ( "CLC") sought to adjourn Mining Lease Applications 90045 and 90058. Previous notice to the applicants was not given. The application follows immediately in the steps of my ruling on 29 March 1995 that Mining Lease Applications 90045 and 90058 were to proceed to hearing without adjournment. In support of the application of today, Mr Plunkett tendered a letter from CLC to the Honourable Robert Tickner dated 12 December 1994. His undated reply was also tendered. [1995] QMW 33 -- 1 of 4 -- I . The essence of the letter of 12th of December 1994 asserts - 1. Concern for the desecration and destruction of significant aboriginal sites on the mainland and the sea; 2. Shortcomings of Queensland Legislation with respect to the above and lack of concern by the Queensland Government in so far as relates to perceived inadequacies of the Social Impact Study and Impact Assessment Study. Lack of faith in the Queensland Government and CRA that aboriginal sites and areas of aboriginal significance will be protected. As a consequence, CLC sought Mr Tickner to investigate the claims pursuant to section 10 of the Aboriginal and Torres Strait Islander Heritage (Interim Protection) Act 1984. That section gives the Minister power to make a declaration in relation to an area that is a significant Aboriginal area and that is under threat ' of injury or desecration., __ _ / It is not a process that is entered into lightly as is set out in subsections 3 and 4 of section 10 of that Act. declaration made is set out in section 11. The content of any To date no such declaration has been made. The Ministers response (it seems in March 1995) was in the following terms- -- 2 of 4 -- "Dear Mr Kelly, I refer to your application under section 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (the Heritage Protection Act), to protect Aboriginal sites hear the Century Zinc Mine project in Queensland. I am writing to advise you that I have appointed the Hon. John Halden Wootten AC QC as a mediator under s .13 (3) of the Heritage Protection Act. Mr Wootten will be commencing the process of mediation soon and will be contacting you and the other parties directly. I am pleased that the Car-pentaria Land Council is willing to participate in the mediation and I am hopeful that this matter can be satisfactorily resolved through a process of consultation and negotiation. Yours sincerely Robert Tickner" The argument in favour of an adjournment is that the process of mediation should be given a chance to resolve all those issues raised in the letter of the 12th of December 1994. Any voluntary process undertaken in good faith to resolve any issue is to be encouraged. I hope it continues. -- 3 of 4 -- ,. However that is not a reason to delay the applicants case presently before the court. Nor should that alternative dispute resolution process be a substitute for the day when the objectors will be required to give evidence in support of their grounds of objection. On that issue, I note that CLC has been able to "pin point areas where great environmental damage will occur, employment or lack of employment for local people and how many sites will be destroyed." (See page 3 of letter 12 December 1994.) That passage indicates to me that the objectors are perhaps far better ( --, prepared in terms of their objections then appears from submissions made on 10th of March 1995. The letter of 12th December 1994 was never tendered on the 10th of March 1995. I accept that Mr Plunkett was not aware of its existence until today. However that issue aside, in my view the voluntary process of mediation as set out in Mr Tickner's letter (with unknown parameters as to time, venue and duration) is insufficient ground for adjournment of Mining Lease Applications 90045 and 90058. The application for adjournment is dismissed. Dated at Brisbane this 31st day of March 1995 J D Costello Acting Mining Warden -- 4 of 4 --