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  4. ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp - [2001] QCA 119

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ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp[2001] QCA 119

Reported at [2002] 1 Qd R 347

ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp[2001] QCA 119

Reported at [2002] 1 Qd R 347

 

SUPREME COURT OF QUEENSLAND 

 

CITATION:

ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp [2001] QCA 119

PARTIES:

ACI OPERATIONS PTY LTD ACN 004 230 326

(applicant/appellant)

v

QUANDAMOOKA LANDS COUNCIL ABORIGINAL CORPORATION

(first respondent/respondent)

REDLAND SHIRE COUNCIL

(second respondent)

PETER HEATHWOOD

(third respondent)

FILE NO/S:

Appeal No 498 of 2001

LXX40043/2000

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from the Land and Resources Tribunal

ORIGINATING COURT:

Land and Resources Tribunal

DELIVERED ON:

30 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2001

JUDGES:

Davies JA, Mackenzie and Mullins JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:

1.The appeal is allowed.

2.The order of the Tribunal made on 19 December 2000 is set aside insofar as it directed that on or before 9 February 2001, each of the parties file and serve:

(a) an outline addressing those matters of compliance or non-compliance with the MRA on which that party would seek to adduce evidence at the hearing;

(b)an outline of evidence intended to be adduced by that party on each such matter.

3. The respondent is to pay the appellant's costs of the appeal to be assessed.

CATCHWORDS:

MINING – MNING LEASE – Mineral Resources Act 1989 (MRA) – Land and Resources Tribunal -  whether objector can adduce evidence or address Tribunal on compliance with s 727(1) MRA where no objection on that issue – whether Tribunal can consider compliance with s 727(1) under s 268 of MRA.

Native Title Act 1993 (Cth)

Acts Interpretation Act 1954 (Qld), s 22

Land and Resources Tribunal Act 1999 (Qld)

Mineral Resources Act 1989 (Qld)

Native Title (Queensland) State Provisions Amendment Act (No 2) 1998 (Qld)

Native Title (Queensland) State Provisions Amendment Act 1999 (Qld)

COUNSEL:

H B Fraser QC with D G Clothier for the appellant

W Sofronoff QC with S J Keim for the respondent

SOLICITORS:

Zoe Farmer for the appellant

Quandamooka Lands Council Aboriginal Corporation for the respondent

  1. DAVIES JA:  I have had the advantage of reading the reasons for judgment of Mullins J.  Her Honour's careful analysis of the relevant statutory provisions, the reasons of the Tribunal and the respective arguments advanced in this Court makes it unnecessary for me to repeat them here.
  1. Relevant provisions of the Mineral Resources Act 1989 are poorly drafted and by no means clear in their meaning.  This is particularly unfortunate in a jurisdiction in which expedition, simplicity and informality of procedure should be important aims.  Those relevant provisions are in s 268 in which there appears to be an inconsistency between subsections (1) and (2) on the one hand, and (3) on the other.  Although those provisions are set out in the reasons of her Honour it is convenient, for the purpose of making my point, to set them out again here.

"(1)On the date fixed for the hearing of the application for the grant of the mining lease and objections thereto, the tribunal shall hear the application and any objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the tribunal in respect of that application at the one hearing of the tribunal.

  1. At a hearing pursuant to subsection (1) the tribunal shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections (if any) and other matters and shall not be bound by any rule or practice as to evidence.
  1. The tribunal 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."
  1. As her Honour has pointed out the phrase "all other matters that pursuant to this part are to be heard, considered or determined by the tribunal in respect of that application" in subsection (1) and "other matters" in subsection (2) are references to the matters which the Tribunal must "take into account and consider" pursuant to s 269(4) or at least such of them as are not the subject of objections duly lodged.  These include –

"whether –

  1. the provisions of this Act have been complied with;  and

...

(l) any good reason has been shown for a refusal to grant the mining lease ... "

  1. Subsection (3), on the other hand, prevents the Tribunal from "entertaining" an objection, which her Honour has, in my opinion correctly, construed to mean "hearing submissions on" an objection, or from "entertaining" 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.
  1. In short, though subsections (1) and (2) appear to permit the Tribunal to inform itself in any manner as it considers appropriate with respect to the matters set out in s 269(4), subsection (3) appears to prevent it from doing so from an objector where that matter does not form a ground of an objection duly lodged. That is the apparent inconsistency to which I referred and which must be resolved.
  1. If it is resolved in the way in which the Tribunal apparently resolved it it would seem to circumvent the purpose of s 268(3) for it would, for example, permit the Tribunal to entertain submissions from an objector upon the question whether the provisions of the Act had been complied with or whether any good reason could be shown for a refusal to grant a mining lease notwithstanding that that question was not the subject of a ground of objection duly lodged. On the other hand it is, I think, possible to construe subsection (3) as qualifying subsection (2). As Mr Fraser QC for the appellant pointed out in argument, in their original form these provisions were paragraphs of the one subsection.  It does no violence to the language of those subsections to construe the second of them as a proviso to or qualification of the first;  that is, that though the Tribunal must take into account other matters, it cannot hear submissions or evidence from an objector on a matter not raised in a duly lodged notice of objection.
  1. Consequently, even if the Tribunal were entitled to consider, on a hearing under s 268(1), whether s 727(1) has been complied with, it could not hear submissions or evidence on that question from an objector who, like the objectors in the present case, had not raised that matter as a ground of objection in an objection duly lodged.  It follows that the directions contained in paragraph (1) of the Tribunal's orders should be set aside.
  1. As that conclusion disposes of this appeal it is unnecessary to consider whether, in any event, the Tribunal would be entitled to consider whether s 727(1) had been complied with on a hearing under s 268. However I agree with her Honour's reasons and conclusion on that question.
  1. I also strongly agree with her Honour's discouragement of directions of the kind given in paragraph (1) of the Tribunal's directions. The Tribunal should endeavour, wherever possible, to adopt procedures which are expeditious and informal. It is a simple matter, in cases of this kind, to ask the parties what their submissions are and to listen to their evidence. An additional layer of formality in the form of written outlines simply adds to expense and delay.
  1. I agree with the orders proposed by her Honour.
  1. MACKENZIE J:  Mullins J has analysed cogently the issues in this appeal and the statutory provisions which form the context within which it must be decided.
  1. I agree with her analysis of the relationship between those provisions. The conclusion to be drawn as to the proper construction of subsection 268(1)-(3) is that, at the hearing which leads to the recommendation to the Minister, the tribunal is to hear the application and any objections thereto, and "all other matters" that are to be heard, considered or determined pursuant to Pt 7.
  1. Davies JA has also expressed the conclusion, with which I agree, that the reference to such matters includes the matters referred to in subsection 269(4), subject, perhaps, to excluding from that category any specifically covered by an objection.
  1. When the legislative history of what is now s 268 is taken into account, subsection 268(3) should be treated as a limitation of the more general words in subsection 268(2) as to how the tribunal goes about its functions. The consequence of this is that the tribunal's right to hear such persons and inform itself in such manner as it considers appropriate under subsection 268(2) is subject to subsection 268(3). The limitation is that, whatever else the tribunal may do to inform itself of what it is required to satisfy itself, it is precluded from entertaining an objection by an objector to an application or any ground thereof, or any evidence in relation to a ground where there has not been an objection duly lodged in respect of a matter which an objection subsequently wishes to agitate.
  1. In the present case, the first order made requires the parties to provide an outline addressing matters of compliance or non-compliance with the Act on which the party would seek to adduce evidence, and of evidence intended to be adduced on each matter and issue. The subject matter towards which the order is directed is not, for reasons explained by Mullins J, the subject of an existing objection. It follows that it should be set aside.
  1. I agree with the orders proposed by Mullins J.
  1. MULLINS J:  This is an appeal from that part of the order of President Koppenol of the Land and Resources Tribunal ("Tribunal") made on 19 December 2000 by which each of the parties was directed that on or before 9 February 2001 to file and serve:

"(a) an outline addressing:

  1. those matters of compliance or non-compliance with the MRA; and
  1. those issues in dispute as raised in the various objections;

on which that party would seek to adduce evidence at the hearing.

(b)an outline of the evidence intended to be adduced by that party on each such matter and issue."

The reference to "MRA" is to the Mineral Resources Act 1989 ("MRA").

  1. The appellant is the applicant in proceedings in the Tribunal relating to its application for a mining lease of land situated at North Stradbroke Island for the purpose of mining all minerals, but particularly silica sand and heavy minerals rutile, zircon and ilmenite. The respondents in the Tribunal are the objectors to the grant of that mining lease. Only one of those respondents sought to be heard on this appeal. That was Quandamooka Lands Council Aboriginal Corporation ("the respondent").
  1. The appellant made application for the mining lease on 28 February 1990. The respondent lodged its objection on 25 September 2000. It is not in issue that the respondent's objection was lodged within time. The respondent recites in its objection that on 3 January 1995 on behalf of the Quandamooka native title claim group it made an application for a determination of native title in the National Native Title Tribunal over parts of North Stradbroke Island including the area which is the subject of the proposed mining lease; on 29 September 1995 the National Native Title Tribunal accepted the application; and on 26 November 1999 the application was amended by the substitution of Dale Alfred Eugene Ruska and Ian Delaney as applicants on behalf of the Quandamooka native title claim group.
  1. The Tribunal has jurisdiction under section 265(1) of the MRA to hear the application for the mining lease and the objections to the mining lease. 
  1. Ground 1(a) of the respondent's objection was:

"The applicant has failed to comply with the relevant provisions of the Mineral Resources Act 1989 ("MRA"). 

Facts and circumstances relied on

a. The applicant has failed to comply with s 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."

  1. The Tribunal was to determine the correctness of ground 1(a) of the respondent's objection as a preliminary issue on 8 December 2000. The respondent did not oppose the order sought by the applicant and the Tribunal ordered that ground 1(a) was wrong and the objection could not be sustained on that ground. It was common ground between the parties that no question of compliance with section 652 of the MRA arose, as the mining registrar had not given a notice to the appellant under section 727(1) of the MRA. The Tribunal had determined on 1 December 2000 that whether or not the mining registrar should have given a notice to the appellant under section 727(1) of the MRA was not raised in ground 1(a) of the respondent's objection. There is no other ground in the respondent's objection which raises the issue of compliance by the mining registrar with section 727(1) of the MRA.
  1. When the application was listed for further directions on 15 December 2000, the issue arose as to whether section 269(4)(a) of the MRA required the Tribunal to consider that the mining registrar should have issued a notice under section 727 of the MRA and whether the mining registrar complied with the MRA in not issuing a notice. The reasons for judgment of the learned President (Re ACI Operations Pty Ltd (Applicant) and Quandamooka Lands Council Aboriginal Corporation and Others (Objectors) [No 2] [2000] QLRT 14) were delivered on 19 December 2000.  The President determined that section 269(4)(a) of the MRA refers to compliance by all relevant parties with all relevant provisions of the MRA.  That determination underlies the directions which are the subject of this appeal.  The President also determined that section 268(3) did not prevent an objector's leading evidence about compliance by all relevant parties with all relevant provisions of the MRA.
  1. The grounds of appeal are that the President of the Tribunal erred in law in finding that:
  1. section 268(3) of the MRA did not preclude the respondents from addressing or leading evidence with respect to matters not raised in the objections lodged by them pursuant to section 260(1) of the MRA and, in particular, the decision of the mining registrar not to issue a notice pursuant to section 727(1)(a) of the MRA; and
  1. in connection with the appellant's application for the grant of a mining lease, section 269(4)(a) of the MRA required the Tribunal to inquire into whether the provisions of the MRA had been complied with; have the parties identify the matters of compliance or non-compliance with the provisions of the MRA upon which they would seek to adduce evidence; and outlining the evidence intended to be adduced by that party with respect to those matters.

Structure of the MRA

  1. Part 7 of the MRA deals with mining leases. In summary, prior to the provisions dealing with the hearing of the application for the grant of the mining lease and the objections to that grant, Part 7 of the MRA provides for:
  1. which land is available for mining leases;
  1. the entitlements of the holder of a mining lease;
  1. the marking out of land proposed to be the subject of an application before the application is made;
  1. the requirements for what the application should contain and be accompanied by;
  1. requirements relating to the lodgment of the application;
  1. the preparation of a certificate of application for a mining lease by the mining registrar when the mining registrar is satisfied that the applicant is eligible to apply for the mining lease and has complied with the requirements of the MRA;
  1. the issuance and advertisement of the certificate of public notice in relation to the application which fixes the last day for objections to the application;
  1. the holding of a conference under section 254 of the MRA with the mining registrar in relation to the application; and
  1. the lodgment of objections to the application.
  1. The requirements relating to the application set out in section 245(1) of the MRA are extensive and must result in a considerable volume of material relevant to the application being provided to the mining registrar.
  1. Under section 265 of the MRA the mining registrar fixes the date for the hearing by the Tribunal of the application and the objections to that application. Sections 268(1)–(3) of the MRA provide:

"268.(1)  On the date fixed for the hearing of the application for the grant of the mining lease and objections thereto, the tribunal shall hear the application and any objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the tribunal in respect of that application at the one hearing of the tribunal.

(2)At a hearing pursuant to subsection (1) the tribunal shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections (if any) and other matters and shall not be bound by any rule or practice as to evidence.

(3)The tribunal 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."

  1. The Tribunal's jurisdiction under section 268 of the MRA was previously exercised by the Wardens Court. Section 268 of the MRA is the renumbered section 7.25 of the MRA. Section 7.25(2) of the MRA as originally enacted provided:

"(2)(a)At a hearing pursuant to subsection (1) the Wardens Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections (if any) and other matters and shall not be bound by any rule or practice as to evidence.

(b)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."

  1. After the hearing by the Tribunal, it is required under section 269 of the MRA to forward to the relevant Minister its recommendation as to whether or not the application should be granted or rejected in whole or in part and any conditions which the Tribunal considers appropriate. Section 269(4) of the MRA provides:

"(4) The tribunal, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether-

  1. the provisions of this Act have been complied with; and
  1. the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
  1. if the land applied for is mineralised there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
  1. the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape; and the term sought is appropriate; and
  1. the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
  1. the past performance of the applicant has been satisfactory; and
  1. any disadvantage may result to the rights of-
  1. holders of existing exploration permits or mineral development licences; or
  1. existing applicants for exploration permits or mineral development licences; and
  1. the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
  1. there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
  1. the public right and interest will be prejudiced; and
  1. any good reason has been shown for a refusal to grant the mining lease; and
  1. taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use."
  1. Section 270(1) of the MRA permits the Tribunal in its discretion to dispense with a hearing of an application for the grant of a mining lease where no objection to the grant of the mining lease has been lodged, the provisions of Part 7 of the MRA have been complied with in respect of the application and the other conditions of section 270(1) of the MRA have been fulfilled.
  1. Section 271(1) of the MRA provides:

"271.(1)  Every recommendation made by the tribunal in respect of an application for the grant of a mining lease shall be considered by the Minister who after taking into account the matters specified in section 269(4), any native title issues decision of the tribunal under part 17, division 4 or any substituted decision made by the Minister under part 17, division 4 in overruling the tribunal's native title issues decision, may-

  1. recommend to the Governor in Council that a mining lease be granted and an instrument of lease be issued to the applicant with respect to the whole or part of the land the subject of the application and, if necessary, where any surface of the land is reserve, that consent to the grant be given; or
  1. reject the application; or
  1. direct the tribunal to hold a hearing or further hearing into the application generally or limited to such matter as the Minister specifies."
  1. Parts 12 to 19 of the MRA were inserted by the Native Title (Queensland) State Provisions Amendment Act (No 2) 1998 as amended by the Native Title (Queensland) State Provisions Amendment Act 1999.  Parts 12 to 18 and division 2 of Part 19 of the MRA are defined in the dictionary in the schedule to the MRA as the native title provisions.  The application of the native title provisions is dealt with in section 419 of the MRA.  Although the purpose of the native title provisions is apparent from section 419 of the MRA, that was expanded upon in the Explanatory Notes for the Native Title (Queensland) State Provisions Amendment Act 1999 in respect of Part 12 of the MRA as follows:

"The native title provisions set out additional requirements that apply to the grant, renewal, variation or other act concerning tenements under the Mineral Resources Act 1989 where the act would have been the subject to the right to negotiate provisions of the Commonwealth Native Title Act.

The native title provisions have effect instead of the right to negotiate provisions." 

  1. Parts 13 to 17 of the MRA apply respectively to different types of tenements which can be granted under the MRA. Part 17 sets out additional requirements that apply to the grant, renewal, variation or certain other acts concerning mining leases under Part 7 of the MRA. Part 18 sets out compensation provisions generally in relation to an act to which one of the parts of the native title provisions of the MRA applies or would apply were it not for certain specified matters. Excluding these compensation provisions, Part 17 and Division 2 of Part 19 are the only parts of the MRA which may apply to an application for the grant of a proposed mining lease, other than Part 7.
  1. The native title provisions of the MRA commenced on 18 September 2000.
  1. Where Division 4 of Part 17 of the MRA applies, the applicant for the grant of a mining lease must give written notice about the proposed mining lease under section 652(1) of the MRA to all native title notification parties for the land (as defined in section 422 of the MRA) and the Native Title Registrar (appointed under the Native Title Act 1993 (Cth)) and the public notice required under section 652(2) of the MRA.  The giving of these notices then determines the day which is the closing day (native title issues) which is the date for determining the registered native title parties with whom the applicant for the grant of the proposed mining lease is required to consult and negotiate in good faith with a view to obtaining agreement of the registered native title parties to the grant of the proposed mining lease and any relevant conditions.
  1. If a negotiated agreement is not reached, a registered native title party may lodge an objection under section 668 of the MRA to the proposed mining lease with the mining registrar or the proposed mining lease can be referred to the Tribunal for a decision under Division 4 of Part 17 of the MRA. Section 668(8) of the MRA provides:

"(8)  The registered native title party may object about the effect of the grant of the proposed mining lease on its registered native title rights and interests under this section only, and may not object under section 260 about the effect of the grant of the proposed mining lease on its registered native title rights and interests."

  1. In the case of either an objection or a referral under section 669(1) of the MRA, the Tribunal then must make a native title issues decision under Division 4 of Part 17 of the MRA.
  1. Provision is made in section 671(1) of the MRA for a combined hearing of the objections and other matters mentioned in section 268(1) of the MRA and the hearing for a native titles issue decision. In making a native titles issue decision the Tribunal must take into account the matters that are set out in section 677 of the MRA. Under section 676 of the MRA the Tribunal must advise the Minister of its native title issues decision when the Tribunal forwards its recommendation to the Minister under section 269(1) of the MRA. The Minister is empowered under section 681 of the MRA to overrule the native title issues decision.
  1. Division 2 of Part 19 of the MRA contains transitional provisions for the Native Title (Queensland) State Provisions Amendment Act (No 2) 1998.  Section 725 sets out when that division applies:

"725.(1)This division applies to an application if-

  1. it is an application for-

(i)the granting of a mining tenement; or

(ii)an approval relating to a mining lease; and

  1. the application was lodged before the native title provisions start day for the application; and
  1. the application is still current; and
  1. immediately before the native title provisions start day for the application-
  1. if paragraph (a)(i) applies-the granting of the mining tenement would have been an act to which the right to negotiate provisions applied; or
  1. if paragraph (a)(ii) applies-the approval would have been an act to which the right to negotiate provisions applied.

(2)However, this division does not apply to an application relating to a mining tenement if a notice under section 29 of the Commonwealth Native Title Act in relation to the act the subject of the application, required to be given as part of complying with the right to negotiate provisions, was given before the native title provisions start day for the application.

(3)The Minister may by gazette notice notify, in relation to an application, a native title provisions start day.

(4)The Minister, in notifying the native title provisions start day-

  1. must have regard to when the native title provisions relevant to the application start to have application; and
  1. accordingly, is not stopped from notifying as the native title provisions start day a day that is earlier than the day the gazette notice is published."
  1. It was common ground between the parties that for all mining lease applications the Minister notified by gazette notice of 3 November 2000 that 18 September 2000 was the native title provisions start day.
  1. For the purpose of Division 2 of Part 19 the expression "notification commencement day" for an application is defined in section 726 of the MRA to mean the notification commencement day advised for the application under section 727 of the MRA.
  1. Section 727(1) of the MRA provides:

"727.(1)The mining registrar must give a notice to-

(a)the applicant under each application for the granting of a mining claim or mining lease, advising the applicant of the notification commencement day for the application; and

(b)the applicant under each application for an approval relating to a mining lease, advising the applicant of the notification commencement day for the application."

  1. In the case of a mining lease, the relevance of the notice given by the mining registrar pursuant to section 727(1)(a) is shown by section 732 of the MRA. If Division 4 of Part 17 of the MRA is to be applied to the granting of a mining lease to which Division 2 of Part 19 applies, the timing of the giving of the written notice and the public notice under section 652 of the MRA is determined by section 732(8) of the MRA by reference to the notification commencement day. If no notice is given by the mining registrar under section 727(1) of the MRA, the operation of section 652 of the MRA in relation to an application for a mining lease to which Division 2 of Part 19 applies is not triggered.
  1. Section 734(1) of the MRA provides for a separate hearing under Division 4 of Part 17 in respect of an application for the granting of a mining lease where the provisions of the MRA, other than the native title provisions, have been complied with wholly or partly and a hearing has already been held under Part 7 of the MRA for the granting of a mining lease. The Tribunal is not required at the hearing under Division 4 of Part 17 to consider any issue dealt with at the earlier hearing under Part 7 of the MRA.

Reasons of the Tribunal

  1. The learned President construed the words of section 269(4)(a) of the MRA by comparing the actual terms of the provision with the wording of sections 252(1), 266 and 267(1)(a) of the MRA which expressly refer to compliance by the applicant with the requirements of the MRA with respect to the application and the wording of section 270(1)(a) of the MRA which permits the Tribunal to dispense with a hearing in certain circumstances if "the provisions of this part (other than the provisions requiring the hearing) had been complied with in respect of the application" where the reference to "this part" is to Part 7 of the MRA.
  1. The President dealt with the argument that section 268(3) of the MRA would prevent an objector's leading evidence about the mining registrar's actions on the basis that section 268(3) deals only with objections and not with other matters such as compliance with the MRA.
  1. The President concluded that in the context of section 268(1) of the MRA, the reference to "other matters" must be to those other matters that under Part 7 of the MRA (which includes section 269(4)(a)) are to be considered.
  1. The appellant had submitted to the President that section 269(4)(a) of the MRA was confined to an examination of compliance by the applicant for the grant of the proposed mining lease with the technical requirements of the MRA. The President concluded at paragraph 15 of the reasons for judgment:

"If the Tribunal were not able to go beyond considering whether the applicant had complied with the various technical requirements of the MRA, the Tribunal would in effect be certifying (in any recommendation that an application for a mining lease be granted) to the Minister that the provisions of the Act had been complied with – when the true position may be quite to the contrary, if other provisions of the Act had not been complied with.  That is such an extraordinary result that one would have thought that clear and unmistakable statutory language would necessarily have been used to effect it.  As will be apparent, I do not regard the wording of s.269(4)(a) to be so limited."

Appellant's submissions   

  1. It is submitted on behalf of the appellant that the only power which the Tribunal has to receive evidence and submissions in respect of a mining lease application is derived from section 268(2) of the MRA and the effect of section 268(3) of the MRA is to restrict that power to evidence and submissions in relation to objections duly lodged. The appellant relies on the legislative history of sections 268(2) and (3) in that they were originally enacted as part of one sub-section, namely section 7.25(2) of the MRA.
  1. The appellant submits that the general words of section 269(4)(a) of the MRA must be read down by reference to the constraint on the hearing by the Tribunal imposed by section 268(3) of the MRA. The appellant submits that the effect of the decision of the Tribunal was that the Tribunal would have to refuse to hear evidence or submissions with respect to an objection or ground contained in an objection which had not been duly lodged, but it would be entitled to receive the same evidence in relation to its consideration of the matters referred to in section 269(4)(a) of the MRA.
  1. The appellant concedes that its submission requires a reading down of the literal words of section 269(4)(a) of the MRA, but submits that there must be some reading down, as section 269(4)(a) must apply only to the provisions of the MRA which are relevant to whether or not the Tribunal makes the recommendation required under section 269 of the MRA.
  1. The appellant also submits that a construction should be given to section 269(4)(a) of the MRA which does not treat a decision by the mining registrar as being non-compliant with the MRA, except when the decision has been set aside.

Respondent's submissions

  1. The respondent seeks to uphold the reasoning of the Tribunal in reaching its decision on the meaning of section 269(4)(a) of the MRA. The respondent submits that section 268(1) of the MRA requires the Tribunal to hear:
  1. the application;
  1. any objections;
  1. all other matters that pursuant to Part 7 are to be heard, considered or determined by the Tribunal in respect of the application.

It submits that the Tribunal's function is expressly not limited merely to a hearing of the objections and one matter which the Tribunal must "consider" is whether the provisions of the MRA have been complied with (as required by section 269(4)(a) of the MRA) and that the Tribunal must address and may receive evidence upon matters relating to the application that have not been specifically raised by any duly lodged objection, but which the Tribunal is required by section 268(1) of the MRA to hear, consider or determine. 

  1. The respondent argues that if the appellant's submissions were accepted, it would prevent the Tribunal's considering the question of whether the mining registrar's decision not to give a notice to the appellant under section 727(1) of the MRA was a failure to comply with a provision of the MRA and the question whether any failure to comply should be a matter of which the Minister should be informed. The respondent submits that any failure of the mining registrar to issue the notice under section 727(1) of the MRA results in the absence of any obligation being imposed upon the appellant to comply with the native title provisions of the MRA.

Issues

  1. As the gazette notice under section 725(3) of the MRA was not published until after the respondent had lodged its objection, it was not possible for the respondent's objection to raise the issue of compliance with section 727(1) of the MRA.
  1. The issues raised by this appeal are:
  1. whether the respondent is entitled to adduce evidence or address the Tribunal on the issue of compliance with section 727(1) of the MRA in the absence of an objection which raises that issue;
  1. whether and to what extent the Tribunal is entitled to consider compliance with section 727(1) of the MRA on a hearing under section 268(1) of the MRA.

Construction of the MRA

  1. On the express terms of section 268(1) of the MRA, the Tribunal's jurisdiction is not limited to the application and any objections to the application. It is extended to "all other matters that pursuant to this part are to be heard, considered or determined by the Tribunal in respect to that application". This picks up the words which are then found in section 269(4) which requires the Tribunal to "take into account and consider" each of the matters set out in paragraphs (a) to (m) of section 269(4) of the MRA.
  1. Section 268(2) of the MRA allows the Tribunal in undertaking the hearing required of it by section 268(1) to take such evidence, hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters. The reference to "other matters" in section 268(2) is a reference to the expanded phrase that is used in section 268(1) which amongst other things incorporates the matters to be considered by the Tribunal under section 269(4) of the MRA which are not otherwise covered by the application itself and any objections.
  1. Section 268(3) of the MRA by its express terms restricts the power of the Tribunal to receive evidence on the hearing under Part 7 of the MRA in relation to any ground of objection that has not been duly lodged. As was submitted by the appellant, the legislative history of sections 268(2) and (3) suggests that the provisions should be read together. Section 268(3) is given effect by allowing it to modify the operation of section 268(2) in relation to what the Tribunal receives from an objector.
  1. That has the result that at the hearing pursuant to section 268(1) of the MRA, the Tribunal can entertain an objection and receive evidence from the respondent which relates only to a ground in its duly lodged objection. The making of submissions by an objector in relation to an issue equates to the entertaining of an objection on that issue by the Tribunal.
  1. The distinction drawn by the learned President between hearing submissions and evidence from an objector which do not relate to the objector's objection on the basis that they relate to the other matters in relation to the application (apart from the objection) which the Tribunal has power to hear is not borne out by the plain language of sections 268(2) and (3) of the MRA. The powers given to the Tribunal pursuant to section 268(2) of the MRA are wider than the powers of the Tribunal in relation to the hearing of an objection which are the subject of section 268(3). At the hearing under section 268(1) of the MRA the respondent is limited to making submissions to and placing evidence before the Tribunal which relate to a ground in its objection. The purpose of section 268(1) of the MRA is not defeated by giving effect to the plain language of sections 268(2) and (3) of the MRA.
  1. The appeal must be successful to the extent that the directions which are the subject of this appeal are wide enough to seek submissions and evidence from the respondent in relation to matters not raised in its objection.
  1. It still remains to be considered whether, in the circumstances, the Tribunal is entitled to consider compliance with section 727(1) of the MRA on a hearing under section 268(1) of the MRA.
  1. In connection with the application for the grant of a proposed mining lease (excluding compensation issues), the Tribunal has the jurisdiction given to it pursuant to section 268 of the MRA and, potentially, has the jurisdiction given under Division 4 of Part 17 of the MRA.
  1. This dichotomy of jurisdiction conferred on the Tribunal is recognised by the process which the Minister is required to undertake in relation to the recommendation of the Tribunal made under section 269 of the MRA. Under section 271(1) of the MRA that recommendation has to be considered by the Minister together with any native title issues decision of the Tribunal or any substituted decision of the Minister made under Division 4 of Part 17 of the MRA. A distinction is made in the process between the exercise of the two jurisdictions conferred on the Tribunal by Parts 7 and 17 respectively.
  1. This dichotomy of jurisdiction is also reflected in the restriction found in section 668(8) of the MRA relating to objections by a registered native title party about the effect of the grant of the proposed mining lease on its registered native title rights and interests. It is also recognised in the express provision in section 671(1) of the MRA for a combined hearing of the hearing under section 268(1) of the MRA and the hearing for a native titles issues decision.
  1. The issue of whether or not the mining registrar should have given a notice to the appellant under section 727(1) of the MRA relates to a pre-condition to the triggering of operation of Part 17 of the MRA.
  1. The wide (and literal) interpretation of section 269(4)(a) is that it refers to all the provisions of the MRA which could apply to an application for the grant of a mining lease. The narrow interpretation of section 269(4)(a) of the MRA is that it refers to compliance with the provisions of Part 7 of the MRA.
  1. The MRA was substantially amended when Parts 12 to 19 were inserted. The approach that has to be taken to construing an Act which has been amended is prescribed by section 22 of the Acts Interpretation Act 1954 which provides "An Act and all Acts amending the Act are to be read as one".  The structure of the MRA as a whole cannot be ignored in the interpretation of a single provision.  
  1. There are difficulties in interpreting section 269(4)(a) of the MRA. The construction arguments based on section 268(1) of the MRA are circular to the extent that the content of section 269(4)(a) is said to depend on the powers of the Tribunal to hear other matters under section 268(1) which itself incorporates the matters raised by section 269(4)(a) of the MRA.
  1. The difference in wording between sections 269(4)(a) and 270(1)(a) of the MRA supports the respondent's contentions. On the other hand, the reference to compliance by the applicant with the requirements of the MRA in sections 252(1), 266 and 267(1)(a) respectively in the context must be a reference to Part 7 of the MRA, as in each case all there is for consideration before the mining registrar or Minister is the application made under Part 7 of the MRA.
  1. When Part 17 contains extensive provisions setting out the role of the Tribunal under Part 17 in relation to native title issues, the delineation in section 271(1) of the MRA between the recommendation made between the Tribunal under section 269 and any native title issues decision of the Tribunal or substituted decision under division 4 of Part 17 of the MRA is a strong indicator that the section 269 recommendation is primarily a recommendation relating to matters that arise under Part 7 of the MRA.
  1. Despite these indications and that there would presumably be little for the Tribunal to consider in relation to compliance with provisions apart from Part 7 of the MRA, there is no reason not to give effect to the words chosen by the Legislature. I therefore conclude that section 269(4)(a) of the MRA requires the Tribunal to consider whether the provisions of the MRA (including section 727(1)) have been complied with.
  1. It does not follow, however, that the Tribunal is entitled to call for evidence from the appellant in relation to compliance with section 727(1) of the MRA. The mining registrar has made a decision under section 727(1) of the MRA and it is that information which the Tribunal must act on in considering whether or not to make its recommendation under section 269 of the MRA. There is no power given to the Tribunal in the MRA to review such a decision of the mining registrar.

Proceedings in the Tribunal

  1. Sections 49(1) and (2) of the Land and Resources Tribunal Act 1999 provide:      

"49.(1)  When conducting a proceeding, the tribunal must-

  1. observe natural justice; and
  1. act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the issues before it.

(2)  For the proceeding, the tribunal-

  1. is not bound by the rules of evidence; and
  1. may inform itself of anything in the way it considers appropriate; and
  1. may decide the procedures to be followed for the proceeding."

Those provisions have effect subject to the provisions of any Act under which the Tribunal is given jurisdiction (section 46 Land and Resources Tribunal Act 1999).  There is no contrary requirement for proceeding in the MRA.  In fact, section 268(2) of the MRA also contemplates some degree of informality in procedure before the Tribunal.

  1. At first glance the directions which are the subject of this appeal appear to be the type of directions expected of a trial court. No doubt the directions in this matter were affected by the issues agitated and approaches taken by the respective parties. The obvious purpose intended to be achieved by conducting proceedings in accordance with section 49 of the Land and Resources Tribunal Act 1999 may not be achieved, however, if the Tribunal as a matter of course makes directions which are unduly complex.

Orders

  1. The following orders should be made:
  1. The appeal is allowed.
  1. The order of the Tribunal made on 19 December 2000 is set aside insofar as it directed that on or before 9 February 2001, each of the parties file and serve: 
  1. an outline addressing those matters of compliance or non-compliance with the MRA on which that party would seek to adduce evidence at the hearing;
  1. an outline of evidence intended to be adduced by that party on each such matter.
  1. The respondent is to pay the appellant's costs of the appeal to be assessed.
Close

Editorial Notes

  • Published Case Name:

    ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp

  • Shortened Case Name:

    ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp

  • Reported Citation:

    [2002] 1 Qd R 347

  • MNC:

    [2001] QCA 119

  • Court:

    QCA

  • Judge(s):

    Davies JA, Mackenzie J, Mullins J

  • Date:

    30 Mar 2001

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2000] QLRT 1419 Dec 2000Section 269(4)(a) of the Mineral Resources Act refers to compliance by all relevant parties with relevant provisions of the Act; each party directed to file outline of compliance with the Act and evidence to be adduced: Koppenol P
Appeal Determined (QCA)[2001] QCA 119 [2002] 1 Qd R 34730 Mar 2001Appeal allowed, order of the Land and Resources Tribunal directing each party to file an outline addressing compliance with the Mineral Resources Act and evidence to be relied upon set aside: Davies JA, Mackenzie J, Mullins J

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2000] QLRT 14
1 citation
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