CRA Exploration Pty Ltd & Anor v Walden & Ors [1995] QMW 31

.. \ '1THE WAR DENS COURT . \ AiJ' MOUNT ISA J \ ( LNA' HE STATE OF QUEENSLAND BETWEEN: AND: MLA Nos 90045 & 90058 CRA EXPLORATION PTY LTD & CENTURY ZINC LIMITED·· CLARENCE WALDEN & CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION Applicants First Objectors REGINALD CARLTON & CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION Second Objectors At this Directions Hearing at Mt Isa on 10th March 1995, the principle question raised, and the subject of this Ruling is whether or not Mining Lease Application 90045 by CENTURY ZINC LIMITED ("CZL") and Mining Lease Application 90058 by CENTURY ZINC LIMITED and CRA EXPLORATION PTY LTD should be adjourned for several reasons, including, pending the determination of an appeal (lodged on 13 March 1995) to the Federal Court pursuant to Section 169(2) of the Native Title Act 1993 (Commonwealth) by the Waanyi People. The area covered by the Application for Native Title is 240 acres, more or less, being Lot 2 on Plan GY13, Pari-sh of Bulmung, County of Gregory, District of Burketown, being reserve 1, Gregory and being camping and water reserve No 1907- 49, established by Proclamation published in the Government Gazette 1907, Volu~e 1, Folio 1555, known locally as "Ten Mile Water Hole" and being located within the external perimeter of Lawn Hill Pastoral Lease in the vicinity of the Lawn Hill- [1995] QMW 31 -- 1 of 10 -- J 2 Lilydale Road, in North West Queensland. The Council of the Shire of Burke is the appointed Trustee of this reserve. It falls within the boundaries of Mining Lease Application 90045 but not Mining Lease Application 90058. It is noted that the Applicants for Native Title. did not request that any of the information with respect thereto be kept confidential. It is also noted that the surface area of Mining Lease Application 90045 is 14,691 hectares, and with respect to Mining Lease Application 90058 the area is 8,494 hectares - this latter area being required for mining processing and support infrastructure. On the day of the Directions Hearing, Mr Koppenol of Counsel and with him Mr Smith, sought leave to appear for the State of Queensland and to make submissions on the question of any adjournment. This was essentially a locus standi question. I will deal with that last. Background material, in so far as relates to a chronology of events with respect to the two applications, was tabled by consent by Mr Plunkett of Counsel for the objectors Walden, Carlton and Carpentaria Land Council Aboriginal Corporation ("CLC"). The only change to this document was the inclusion of a reference to Mining Lease Application 90058 at the mention date of 5th August 1994: otherwise it is an accurate history of the milestones of the Mining Lease Applications for the purposes of the directions hearing. -- 2 of 10 -- . I ,l ·~ 3 . The argument by Mr Fraser QC and with him Mr Batch for the Applicant miners that the applications should proceed expeditiously, may be summarised as follows:- 1. By operation of Section 170(1) of the Native Title Act 1993 ("Act") this Court 2. in the exercise of its administrative capacity, would not refuse to exercise its statutory jurisdiction to proceed to a hearing of the applications. Even assuming the appeal was successfully prosecuted, that would not be the end of -the matter; a potentially long process would then be undertaken which may or may not lead to Registration of Native Title (see, Flow Chart annexure PAS3 to the Affidavit of Paul Anthony Smith filed by leave 10 March 1995). Further, if there was Registration of Native Title the proposed grant of a Mining Lease would, by reason of the operation of various sections of the Act, including Section 26, Section 27, Section 28, Section 29, Section 38 and 39, trigger yet further processes which may or may not result in any proposed lease being sanctioned by the "Arbitral Body" (see Section 27 of the Act). In essence, the point arising from the foregoing, it is argued, is that the hearing of the Mining Lease Applications is not of itself going to prejudice or deprive a Native Title Holder of any right if there is found to be Native Title. 3. The issue before the Federal Court on appeal is not the same as the issue before the Wardens Court. The latter, in so far as relates to the objectors, are contained in the Notices of Objection lodged pursuant to the provisions of the Mineral Resources Act 1989 (Old). The significance of lodging an objection -- 3 of 10 -- 4 as provided is apparent by reason of the provisions of Section 7.25(2A) thereof. This subsection provides:- 11 (2A.) The Wardens Court shall not entertain an objection to an application or any ground thereof or any __evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application. 11 Objections 3, 4 and 8 and the facts and circumstances in support thereof in the Notice of Objection of Walden and CLC dated 12 January 1994 was referred to in the sense that they lacked relevance to the Federal Court proceedings. The same argument was raised with respect to Objection 4 in the Notice of Objection dated 27 January 1994 (Carlton and CLC) and Objections 1 to 5 in the Notice of Objection dated 18 July 1994 (Walden and CLC). With respect to the latter, Objection 6 was said to be factually incorrect in that there is no camping and water reserve on Mining Lease Application 90058. 4. Based on R v. Windridge Ex Parte: Pacific Coal Pty Ltd [1992] Qd R p.180, the particular objections based on Native Title were, it is said, incapable of having any determinative effect on the Wardens Court proceedings. 5. Commercial urgency required the Wardens Court hearing proceed expeditiously. Submissions for the Objectors Walden, Carlton and CLC were handed up by Mr Plunkett. -- 4 of 10 -- 5 Mr Plunkett submitted that the chronology of events referred to above focused on 3 "streams of activities" namely:- (i) What is occurring in this jurisdiction; (ii) The admini_strative arrangements under Section 29 of the State Development and Public Works Organisation Act 1971; and (iii) The pending appeal to the Federal Court with respect to questions of Native Title. These streams of activity, it is said, have now reached a point of coincidence and that it was simplistic to simply focus on questions of Native Title; fair opportunity should be afforded the objectors of meeting the application particularly in view of the complexity of the material and material delivered on or about 10th March 1995 to Mr Plunkett; the problems of distance and communication; the public importance of Native Title generally and in the region of the Gulf; the importance of national reconciliation; the ambit of Section 7.26 of the Mineral Resources Act 1989 (Old); the need for mature reflection of all matters arising from the foregoing. For these reasons alone, the application should not proceed for six to twelve months. The issues raised by Mr Plunkett in his eight page Submission were wide ranging. Some focused on the obligations of the Applicant miners with respect to the Impact Assessment Studies: others focused on the obligations imposed on this court by virtue of S 7.26(3) of the Mineral Resources Act 1989 (Old). I must say I had difficulty with all of the submissions. More specifically, paragraphs 1 to 4 of the submissions state the obvious. Paragraph 5 of the submissions, in the -- 5 of 10 -- 6 context of whether or not the applications should be adjourned, says very little. Paragraphs 6 to 10 deal essentially with the Draft Impact Assessment Statement. This document was first released on 17 October 1994. The CLC made written submissions within the time allowed on 14 December 1994. Paragraph 4.0 (page 29) of the submissions read in part as follows:- "The Carpentaria Land Council has consulted widely with Aboriginal communities over the draft IAS. In part, the consultations were based on an independent interpretation of the draft IAS. As a result, the CLC is able to provide details of the nature of Aboriginal concerns. These are provided below. It is hoped, that given the nature and gravity of the concerns expressed by Aboriginal people, the . Queensland Government will take all necessary steps to ensure that Aboriginal interests are considered and accommodated in the decision-making process." The supplementary Draft Impact Assessment Statement was released on 1st February 1995. The CLC made further written submissions again within the time allowed on 27th February 1995. Arising from the foregoing, it seems to be fair comment that CLC is quite capable of responding in a timely way when there is a need. Finally, by letter of 9th March 1995 the office of the Co-ordinator General responded to CZL with respect to the Century Project Draft Impact Assessment Study Report in the following terms:- "Dear Mr Williams THE CENTURY PROJECT DRAFT IMPACT ASSESSMENT STUDY REPORT I refer to the Century Draft Impact Assessment Study Reports undertaken pursuant to the provisions of Section 29 of the State Development and Public -- 6 of 10 -- 7 Works Orgalll~'iation Act 1971-1981 and described as: Draft Impact Assessment Study Report dated October 1994 (Volumes 1, 2 and 3). Supplementary Report - Aboriginal Issues dated January 1995. The Response to Submissions Report dated March 1995. I wish to advise that at a meeting held on 7 March 1995 all Advisory Bodies for the abovementioned project indicated they considered that the Study satisfactorily addressed the Guidelines as they relate to on mine site issues. However, it was acknowledged that some agencies may require additional work to be completed to their satisfaction before approvals may be granted. This additional work relates to approvals from Department of Primary Industries - Water Resources and Department of Environment and Heritage. This Office will continue to facilitate and co-ordinate any further assessment requirements : Yours faithfully K.J. Down Head Office of the Co-ordinator General" (see annexure "DF3" to Affidavit of Douglas Fishburn filed by leave on 10 March 1995) Perhaps further assessment will be required as referred to in the last paragraph. However, it seems to me that that aspect aside, the Impact Assessment Study is complete. Moreover, CLC has participated in the process of consultation although it must be said that it is less than satisfied with the outcome. As to the matters raised in paragraph 10, 11, 12 and 13 of the Submissions of Mr Plunkett, I respectfully disagree. More specifically in my view, the material raised in the Impact Assessment Studies is not too premature for serious consideration, whether it be with respect to the public or the obligations imposed upon this Court. Further, it seems to me that the objectors have in the past responded in a timely -- 7 of 10 -- I.------ --,1 8 manner to the timetables imposed by the Impact Assessment Statements. Consultation between the objectors, in my view, seems to have been carried out in an effective manner. Paragraph 14 of the submissions summarise why the applications should not be set down for hearing. With respect to subparagraph (a), even if there was any merit in the claim that the Impact Assessment Study process had not been properly completed, with which I disagree, it seems to me that by reason of the provisions of the governing legislation there would be little I could do to ensure compliance to the standards of the objectors. As to paragraph (b) (i) and (ii) - I consider those statements to be factually incorrect. Further, the reference to lack of time for preparation of the objectors' case overlooks the fact that the objections were lodged in January and July 1994 respectively, some months before the release of the Impact Assessment Studies. On 3rd March 1995 the solicitors fo r CZL and CRA Exploration Pty Ltd made request for Further and Better Particulars. I have yet to rule on that matter. It is not before me as an Application and it is presently of little weight in determining whether or not the Mining Lease Applications should be adjourned. Paragraph 16 of the submissions of Mr Plunkett seem to have been for the most part overtaken by events. Paragraph 17 has been dealt with above. However, to make it abundantly clear I do not accept on the material before me that there has been "indecent haste" evinced in the proposal of the Applicants. -- 8 of 10 -- 9 With respect to the matters raised in paragraph 18 of the submissions, it seems to me that the point made by Mr Fraser QC is a valid one; the question to be determined by the Federal Court has no determinative effect on any proceedings in this Court. Specifically, it is one question .to appeal a ruling that no prima facie claim to Native Title has been made out: it is quite another to infer (incorrectly in my view) parallels or similarities between Native Title as such and objections (referred to previously) based on archaeological surveys, areas of significance to Aboriginal tradition and sacred sites. In addition, the provisions of Section 170(1) of the Act speaks for itself. In my view, I am satisfied that on balance it would be reasonably possible that a recommendation for the grant of Mining Leases could be made whether or not the question of Native Title is successfully prosecuted . (See R v Windridge exparte Pacific Coal Ptv Ltd [1992] 2 Qd R p. 180 at p. 193) . In so far as all of the matters raised by Mr Plunkett, I am not satisfied on the material presented that they individually or collectively constitute grounds for an adjournment. Mining Lease Applications 90045 and 90058 shall proceed to hearing. There will be no adjournment as sought by Mr Plunkett. For the purposes of this ruling I have had no regard to the commercial urgency as submitted by the applicant miners . With respect to the Application by the State of Queensland, it seems to me by reason of the foregoing that it is unnecessary to decide this issue. However, I would -- 9 of 10 -- 1 0 comment that the State is neither an Applicant nor an Objector in these proceedings. Its submissions on the point of locus standi, seem to be in my view adventurous. Needless to say, I have not taken any of the submissions of Mr Koppenol into account in determining to proceed in this matter. I reserve the question of costs. DATED at Brisbane this twenty-ninth day of March, 1995. -- 10 of 10 --