BHP Coal Pty Ltd & Ors, Re [2003] QLRT 52

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Coal Pty Ltd & Ors [2003] QLRT 52 PARTIES: In the Matter of Application for Mining Lease No. 70288 by BHP Coal Pty Ltd & Ors FILE NO/S: AML00044/2002 PROCEEDING: Application to dispense with hearing DELIVERED ON: 20 May 2003 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Smith DP ORDER/S: 1. I refuse the Application that the hearing of this matter will be dispensed with. (at [12]) 2. I list this matter for a Hearing at Brisbane not before 10am on 11 July 2003. (at [13]) 3. I order that the Registrar of this Tribunal provide a copy of this decision to the Registered Native Title Claimants. (at [14]) 4. I order that a directions hearing be held in this matter at 10am on 18 June 2003. (at [14]) CATCHWORDS: MINING – MINING LEASE – APPLICATION TO DISPENSE WITH HEARING – NATIVE TITLE ISSUES – EXTINGUISHMENT OF NATIVE TITLE – REGISTERED NATIVE TITLE CLAIMANTS – VALUABLE STATUTORY RIGHT Mineral Resources Act 1989, ss. 245, 270 Native Title Act 1993 (Cth) Buka Minerals (Lady Loretta) Pty Ltd & Anor [2001] QLRT 62, considered North Ganalanja Aboriginal Corporation v Queensland [1996] 185 CLR 595, considered COUNSEL: N/A SOLICITORS: N/A AGENT: Ms N Allder for the Applicants -- 1 of 4 -- [1] SMITH DP: On 3 December 2002 BHP Coal Pty Ltd, UMAL Consolidated Pty Ltd, QCT Management Limited, QCT Investments Pty Ltd, QCT Mining Pty Ltd, BHP Queensland Coal Ltd and Mitsubishi Development Pty Ltd (hereafter referred to as “the Applicants”) lodged Mining Lease Application No. 70288 with the Mining Registrar, Emerald District. The Application was lodged pursuant to s. 245 of the Mineral Resources Act 1989 (hereafter referred to as “the Act”) for coal mining and infrastructure purposes. [2] No objections were duly lodged to the Mining Lease Application. [3] The Applicants have requested that the Application be dealt with without an oral hearing, pursuant to s. 270 of the Act and have provided information pursuant to Practice Direction No. 1 of 2001. The Mining Registrar has also provided the Tribunal with a report to which are attached relevant documents. At a directions hearing on 7 August 2002 the Applicants also tendered a number of documents. Further, on 24 March 2003, the Applicants provided detailed written submissions. [4] I may dispense with a hearing if satisfied as to matters specified in s. 270(1). The material supplied by the Applicants and the Mining Registrar raise some concern regarding the appropriateness of my hearing this matter on the papers without an oral hearing. [5] The land the subject of this Application falls within the internal boundaries of a Native Title Claim.1 The Mining Registrar’s Report with respect to Native Title refers to a Native Title Work Procedure for Decision Making which document itself refers to work procedures and a Department of Premier and Cabinet advice, none of which are included in the material. [6] Exhibit 1 is a lengthy document prepared by Blake Dawson Waldron, Solicitors, dated 13 September 2001, relating to Native Title. Exhibit 2 is a Queensland Government response of 18 October 2001 which states, inter alia “The Department accepts your arguments that there may be previous exclusive possession acts under s. 23B(2) of the Native Title Act 1993 (Cth) [my emphasis added]. The letter then goes on to discuss the provision of an indemnity. [7] Exhibit 3 is an “Indemnity Submission” by Blake Dawson Waldron dated 3 December 2001. Exhibit 4 includes a Queensland Government letter of 4 December 2001 by which the State accepts the Indemnity Submission and does not proceed with the requested indemnity. [8] It is important to note the distinction between Exhibits 1 and 2, and 3 and 4. Exhibits 3 and 4 relate only to the question of an indemnity. On their face, they contain nothing to derogate from the position set out in Exhibit 2 that “these may be previous exclusive possession acts” [my emphasis]. [9] I note that the land subject to this application has the underlying tenures of Special Lease 30/36458 [for Business (Private Road) Purposes], Special Lease 30/36457 [for Industrial (Tailings Area) Purposes], Special Lease 30/43383 [for Industrial Purposes], and various lots of State Land. [10] As regards the State Land, the Applicants rely on the establishment of public works provisions of the Native Title Act 1993 (Cth), specifically ss 253 and 251D. Although 1 QC01/25 -- 2 of 4 -- the Applicants rely upon construction of a railway on the subject land and also to necessary adjacent land, they have provided no evidence as to the location of the railway on the subject land. It may be that constructed railway comprises all of the relevant State Land. Alternatively, it may be that the relevant State Land incorporates both constructed railway and necessary adjacent land. Alternatively, it may be that the State Land contains constructed railway, adjacent land, and other vacant land. Without relevant evidence (including photographs etc), it is, quite simply, impossible for me to know. [11] In their written submissions of 24 March 2003, the Applicants submit that the Registered Native Title Claim expressly excludes a scheduled interest, and then reasons that as Exhibits 1–4 show that native title has been extinguished on the Special Leases, and public works have been established on the State Land, the Native Title Claim does not include the area contained within the Application. This does appear to be a classic example of one pulling ones self up by ones own boot straps. The Applicants submissions may be correct. Of course, the point is that the issues have not been definitively concluded. No detailed tenure information relating to those areas of land excluded from the Native Title Claim have been provided. Despite the arguments of the Applicants, the Native Title parties may have arguments that the subject land is under native title claim. [12] The High Court has set out quite clearly that the Statutory Negotiation Rights given to Indigenous Australians are valuable rights.2 Additionally, the Applicants by the written submissions of Blake Dawson Waldron seek that I make a decision inconsistent with a decision of President Koppenol of this Tribunal.3 In the circumstances of all the material provided to me in this matter, I do not consider it appropriate to deal with the matter on the papers. Accordingly, I refuse the Application that the hearing of this matter be dispensed with. Of course, at the hearing, the Applicant may very well be able to convince me, on the basis of evidence produced at the hearing, that the application can proceed. [13] I set this matter down for hearing at Brisbane not before 10am on 11 July 2003. [14] In the circumstances of this matter, I consider it appropriate that the Registered Native Title Claimants should be provided with a copy of this decision. I accordingly order that the Registrar of this Tribunal provide a copy of this decision to the Registered Native Title Claimants. It will then be a matter for the Registered Native Title Claimants as to what role they seek to take, if any, at the hearing of this matter. In giving the Registered Native Title Claimants an opportunity to make submissions as to whether they should play any role in this matter, I consider it appropriate that, if they seek to make any such submissions, they should make their position clear at a Directions Hearing prior to the hearing of this matter. I accordingly order that a Directions Hearing be held in this matter not before 10am on 18 June 2003. 2 See North Ganalanja Aboriginal Corporation v Queensland [1996] 185 CLR 595 at 616, 644 and 645. Although relating to the Native Title Act 1993 (CWR) prior to major amendments in 1998, the case remains relevant to the consideration of this matter. As Justice McHugh said at 645 “To ignore the procedures of the Act and to determine the extinguishment issue before the Waanyi People had had an opportunity to utilise their rights under the Act would be both a breach of the Act and an injustice to the Waanyi People. To refuse to correct that breach because to do so would serve the social or economic interests of other persons would be a step calculated to undermine the rule of law in our community. The community will quickly lose confidence in the courts of justice if a perception arises that the courts are ready to ignore the legal rights of individuals whenever intervening governments or litigants urge that public or private convenience requires such rights to be by-passed”. 3 Re Buka Minerals (Lady Loretta) Pty Ltd & Anor [2001] QLRT 62. -- 3 of 4 -- -- 4 of 4 --