Cape Flattery Silica Mines Pty Ltd v Hope Vale Aboriginal Council [1991] QMW 63

., .' IN THE WARDENS COURT OF QUEENSLAND HELD AT MAREEBA BEFORE: WILLIAM SAMUEL CHRISTENSEN, ESQUIRE, WARDEN. IN THE MATTER OF: LESSEE: DATE OF ORDER: ORDER: APPLICATION FOR DETERMINATION OF COMPENSATION OF MINING LEASE NUMBER 2806 IN THE CAIRNS MINING DISTRICT. CAPE FLATTERY SILICA MINES PTY. LTD. HOPE VALE ABORIGINAL COUNCIL. 22nd November, 1991. Following telephonic discussions between my clerk and the solicitors for the parties this matter was adjourned on the 4th November, 1991 for hearing in the Warden's Court Cairns on 2nd December, 1991. Representations have been received from Mrs. English of Bottoms, Davies and Nash, solicitors for the Owners to the effect that; (i) she did not agree to the matter being [1991] QMW 63 -- 1 of 5 -- ---' 2 placed for hearing on that date; (ii) the matter is not properly before the Court because the Owners have not been served with the Lessee's Application for the Court to determine compensation; and ( i ii) final preparation of the Owner's Case, chiefly a valuation of the subject land, has been delayed pending voluntary and/or compulsory reduction of the Mining Lease area and resolution in relation to certain lease conditions. Mr. Gore of Clarke and Kann, solicitors for the Lessee, opposed withdrawal of the matter from hearing on the 2nd December. I transferred the matter to the Warden's Court Mareeba (pursuant to section 10.15(3) of the Mineral Resources Act 1989-1990) on 22nd November, 1991 and invited written submissions. The request to determine compensation is set out in Clarke and Kann's letter to the Warden dated 1st November, 1991 (in the second paragraph of part 2 thereof). The record indicates that a copy of the letter was forwarded by those Solicitors to Mrs. English. The Act does not require reasons for the application nor does it require any material -- 2 of 5 -- _) 3 other than a simple request to be placed before the Mining Registrar. Notwithstanding any rule of practice which may be argued to be imported into the Mineral Resources Act by section 10.24 thereof, there seems to be no reason why the Mining Registrar should n ot merel y gi ve notice of hearing. After questions relating to the availability of the parties for hearing were (believed to have been ) resolved the Mining Registrar gave the required notice. In my view the application for determination of compensation is properly before the Court. The application for renewal of Mining Lea se 2806 was made pursuant to section 26 of the Mining Act 1 968- 1986 . By virtue of cl ause 3(11) of the Second Schedule to the Mineral Resources Act 19 89 -1990 the provisions of the latter Act shall apply to the application. Section 7.4 3 of the Mineral Resources Act, 1989-1990 therefore applies to any further dealings with the application. The lessee's application for renewal of mining lease dated 10th August, 1990 was duly made under the provisions of section 26 of the Mining Act, 1968-1986. There is no provision in that section, nor indeed in section 7.43 of the Mineral Resources Act (and in particular, subsection 7.43(3)(d) on which the owner places some reliance) for renewal of lease in respect of a lesser area than the original. Both Acts provide for reduction of area by means of partial surrender only and prescribe the method by which -- 3 of 5 -- C 4 surrender is effected. The effect of section 7.43 is that the lease will be renewed in its entire area or not at all. The lessee's letter requesting renewal cannot be accepted, therefore, as an application for renewal of the lease for a reduced area and mention therein to preference for removal of Portions A, Band C from the lease area must be seen as a statement of future intention only. The only course open to the Lessee to reduce the area (if that is its ultimate intention) is by way of partial surrender and, in view of the fact that the initial term of mining lease has now expired, that action must await grant of a further term. The Lessee has made it clear that it is not its intention for the time being to relinquish any part of the leased area. As a further term of lease will not be granted until compensation is determined it is my view, having regard to the position of the parties in relation to compensation negotiations, the matter should be brought on for hearing at an early date. I take note of the Owner's advice that owing to its understanding of negotiations with the Lessee no action has been taken to prepare its case in time for a hearing on the 2nd December, 1991. Although this regretful situation arises, in my view, as a result of the Owner's misconception of the nature of an application for renewal of mining lease and the processes prescribed for disposal of the application -- 4 of 5 -- 5 I consider the justice of the case requires an adjournment to allow the Owner to prop e rly prepare its case. I also note the Lessee's concern that delay in having the term of lease renewed places it in a position of commercial disadvantage. In fairness to the Lessee I consider that the adjournment sho.uld be for the least possible duration. It seems the Owner req uir-es time to ar range a valuati o n of the land by a registered valuer . In my view a hearin g during the Februar y Sittings of the Cou rt should allow su fficient time for such preparation. but owing t o the possibil ity that the matter. en the o wner's assessment , coul d take three days and the anticipated lack o f resour ce s a vailable to the warden's court at that time, it seems advisable that the matter be set for a firm date of hearing at the following Sittings on the 2nd March, 1992 . I order that the matter be listed for mention only at the Warden's Court at Cairns at 9.30 a.m. on 2nd December, 1991 and an y previous order for listing on that date is revoked . I give leave to the parties at that time to make representations only on the question of their availability for trial on the 2nd March, 1992 or at a later Sittings of the Court. (Sgd.) w.s. Christensen. Warden. -- 5 of 5 --