Re Denjim Pty Ltd[2011] QLAC 4

LAND APPEAL COURT OF QUEENSLAND

CITATION: Re Denjim Pty Ltd [2011] QLAC 0004

PARTIES: Denjim Pty Ltd

(Appellant)

FILE NO: LAC 008-10

DIVISION: Land Appeal Court of Queensland

PROCEEDING: Application for a declaration

ORIGINATING COURT: Land Court of Queensland

DELIVERED ON: 2 June 2011

DELIVERED AT: Townsville

THE COURT: Cullinane J

Mrs CAC MacDonald, President of the Land Court

Mr PA Smith, Member of the Land Court

ORDER: In light of the amendments to s. 773 of the Mineral Resources Act of 1 September 2010, the appeal to the Land Appeal Court has no effect.

CATCHWORDS: STATUTORY INTERPRETATION – retrospective legislation – referral of mining lease application to Land Court deemed to be of no effect – decision of Land Court made before legislation effective – status of decision – decision remains part of Court record

PRACTICE AND PROCEDURE – declaratory relief – declaration sought to remove Land Court decision from record – retrospective legislation deemed referral to Land Court ineffective – decision made before retrospective legislation – decision held part of Court record – declaration refused

PRACTICE AND PROCEDURE – Land Appeal Court – referral to Land Court, because of retrospective legislation, of no effect – appeal to Land Appeal Court also of no effect

Mineral Resources Act 1989

Mines and Energy Legislation Amendment Act 2010, s. 50

Geothermal Energy Act 2010, s. 424

Commonwealth Racial Discrimination Act 1975 (Cwth)

COUNSEL:RN Traves SC for the appellant

SR Grant, by leave, for the State of Queensland

SOLICITORS: Hemming & Hart, Lawyers, for the appellant

1. [1]
   THE COURT:  On 6 August 2010 the appellant lodged an appeal against a decision of the Land Court of Queensland of 25 June 2010^[1] wherein the Land Court recommended to the Minister responsible for the Mineral Resources Act 1989 (“the MRA”) that mining lease application no. 10344, sought by the appellant, be rejected in whole.
2. [2]
   It should be noted that mining lease application 10344 was before the Land Court without objection. Accordingly, both the initial matter before the Land Court, and this appeal, have only one party, the appellant.
3. [3]
   The appellant has requested that this court make the following declarations:

“a. That by reason of section 773 of the Mineral Resources Act 1989 (Qld) the purported recommendation of the Land Court on 25 June 2010 in respect of an application by Denjim Pty Ltd for a mining lease was not authorised by the Mineral Resources Act 1989 and is of no effect and is taken never to have had effect;

b. That there is no decision of the Land Court in respect of which an appeal lies under section 64 of the Land Court Act 2000 (Qld).”

4. [4]
   In order to consider the appellant’s request for declarations, it is necessary to set out in some detail certain facts and legislative amendments that have occurred to the MRA.
5. [5]
   On 11 September 2009 the appellant lodged application for mining lease no. 10344 with the mining registrar, Charters Towers.^[2]
6. [6]
   On 21 April 2010, pursuant to s. 50 of the Mines and Energy Legislation Amendment Act 2010,^[3] s. 265 of the MRA was amended to provide that the mining registrar must refer applications for mining leases with properly made objections to the Land Court for hearing. Prior to this amendment, the mining registrar was required to refer all mining lease applications to the Land Court for consideration, whether or not those applications were subject to a properly made objection.
7. [7]
   Section 59 of the Mines and Energy Legislation Amendment Act 2010 also included, by s. 59, a new division 12 in part 19 of the MRA as follows:

‘Division 12  Transitional provision for Mines and Energy Legislation Amendment Act 2010

‘773 Existing application for mining lease

‘(1) Subsection (2) applies to an application for a mining lease that—

1. (a)
   was lodged before the commencement; and

2. (b)
   immediately before the commencement, had not been referred by the mining registrar to the Land Court under previous section 265.

‘(2) Previous section 265 continues to apply in relation to the application.

‘(3) Subsection (4) applies to an application for a mining lease if the mining registrar—

1. (a)
   refers the application to the Land Court because of subsection (2); or

2. (b)
   had, before the commencement, referred the application to the Land Court, and no recommendation about the application had been made by the Land Court to the Minister before the commencement.

‘(4) This Act as in force immediately before the commencement applies to the Land Court for dealing with, or continuing to deal with, the application.

‘(5) In this section—

commencement means the day this section commences.

previous section 265 means section 265 as in force immediately before the commencement.

8. [8]
   On 26 May 2010 the acting mining registrar, Charters Towers, referred mining lease application 10344 to the Land Court.^[4] The mining registrar’s referral to the Land Court was made pursuant to s. 773(1) and (2) of the MRA as then in force. It is accepted by the appellant that the application for mining lease no. 10344 was lodged before the commencement of the then s. 773 on 21 April 2010 and that, accordingly, the Land Court had jurisdiction to consider the matter.
9. [9]
   On 25 June 2010 the Land Court recommended that the application for mining lease no. 10344 should be rejected in whole.
10. [10]
    On 6 August 2010 the appellant appealed to this court seeking to overturn the decision of the court of 25 June 2010. Again, pursuant to the legislation in force at the time that the notice of appeal was filed by the appellant, there is no doubt that the appellant was appealing against a properly made decision of the Land Court.
11. [11]
    On 1 September 2010, pursuant to the provisions of s. 424 of the Geothermal Energy Act 2010,^[5] division 12 of part 19 of the MRA was replaced by a new division 12 as follows:

‘Division 12  Transitional provision for Mines and Energy Legislation Amendment Act 2010

‘773 Existing mining lease applications

‘(1) This section applies to an application for the grant of a mining lease lodged before the commencement but not heard by the Land Court before the commencement.

‘(2) If a properly made objection was lodged before the commencement—

1. (a)
   previous section 265 applies to the application; and

2. (b)
   this Act as in force immediately before the commencement continues to apply to the Land Court for dealing with, or continuing to deal with, the application.

‘(3) If a properly made objection was not lodged before the commencement—

1. (a)
   amended section 265 applies to the application; and

2. (b)
   any reference under previous section 265 of the application to the Land Court for hearing is of no effect and is taken never to have had any effect; and

3. (c)
   this Act as in force from the commencement applies to the application.

‘(4) In this section—

amended section 265 means section 265 as in force immediately after the commencement.

commencement means the date of assent of the Mines and Energy Legislation Amendment Act 2010.

previous section 265 means section 265 as in force before the commencement.

properly made objection means an objection to the application lodged in accordance with section 260.

12. [12]
    It is because of the enactment of the amended s. 773 of the MRA which came into force on 1 September 2010 that the appellant seeks the declarations set out previously.
13. [13]
    There appears to be no doubt as to the intentions of Parliament in replacing s. 773 of the MRA on 1 September 2010. In a reversal of the situation that had applied since 21 April 2010, the new provisions of s. 773 stipulate that in circumstances where a properly made objection was not lodged before the commencement (which remains 21 April 2010), amended s. 265 of the MRA applies, which has the result that such applications are not referred by the mining registrar to the Land Court. It follows that any applications referred by mining registrars to the Land Court in the period between 21 April 2010 and 1 September 2010, in circumstances where such mining lease applications were without any duly lodged objection, are deemed to be of no effect. That this is Parliament’s intention is clear when reference is made to the explanatory memoranda to the Geothermal Energy Bill which has this to say regarding the replacement of part 19 division 12 of the MRA:

Existing mining lease applications

Clause 416 replaces section 773 of the Mineral Resources Act 1989. The replacement of section 773 provides transitional provisions for mining lease applications, where no properly made objections have been lodged. These applications will not be referred to the Land Court. Where applications without objection have already been referred to the Land Court, the referral is deemed not to have happened.

14. [14]
    Clearly, in accordance with the sequence of events set out above, the retrospective effect of s. 773 of the MRA as currently enacted is that the mining registrar’s referral on 26 May 2010 “is of no effect and is taken never to have had any effect”, or, as the explanatory memoranda puts it, the referral is deemed not to have happened.
15. [15]
    In these circumstances, is it appropriate to grant the declaratory relief sought by the appellant? As Mr Traves SC put it in written submissions of 15 October 2010, from the appellant’s perspective “there remains on the record and available for public viewing the “recommendation” of the Land Court”.^[6] Put simply, the appellant is seeking to have the Land Court decision of 25 June 2010, which was adverse to the appellant, removed from the public record.
16. [16]
    The Privy Council considered the effect of deeming provisions in retrospective legislation in the case of Akar v Attorney-General of Sierra Leone.^[7] That case involved the purported retrospective application of laws relating to rights of citizenship. Lord Morris made the following observations:^[8]

“The general power of Parliament must include a power to enact that legislation (if valid and validly passed) is to have retrospective effect. An intention so to enact would have to be shown by clear and definite words. So also Parliament is entitled to have recourse to deeming provisions. It is not for the court to decide as to the wisdom or the desirability of exercising such powers. It is to be observed, however, that what-ever Parliament might, by some deeming provisions, have succeeded in doing in the early part of 1962 it could not have altered any of the facts of history.”

17. [17]
    The consequences of retrospective deeming provisions in legislation were considered by the High Court of Australia in University of Wollongong v Metwally.^[9] That case involved an attempt by the Commonwealth to retrospectively enact legislation so that provisions of State legislation which were inconsistent with the Racial Discrimination Act 1975 (Cwth) became retrospectively not inconsistent, and accordingly, it was argued, the State legislation was thus not invalid. Justice Deane, who formed part of the majority in the High Court’s decision, likened the consequences contended for as “Orwellian notions of doublethink”.^[10] Justice Deane went on to cite with approval the Privy Council case of Akar. Justice Deane had this to say:^[11]

“A parliament may legislate that, for the purposes of the law which it controls, past facts or past laws are to be deemed and treated as having been different to what they were. It cannot, however objectively, expunge the past or “alter the facts of history”: cf. Akar v. Attorney-General (Sierra Leone) (72). If the fact was that its Emperor wore no clothes, it is powerless either to reverse that fact outside the fields in which it is master or objectively to convert into falsehood the truth which a small child saw.”

18. [18]
    In our view, the observations of Lord Morris in Akar and Justice Deane in Metwally are applicable in the case at hand. Whilst Parliament has clearly deemed the referral of the mining registrar of 26 May 2010 to be of no effect, at the time that the referral was made, as a question of both law and of fact, the referral was properly made by the mining registrar. Acting on that referral, on 25 June 2010 the Land Court of Queensland published its reasons for decision which included its recommendation that the mining lease application be refused. The subsequent operation of amended s. 773 of the MRA from 1 September 2010 does not alter the fact that the Land Court made its decision on 25 June 2010 and that, at the time that it made that decision, it was required by the legislation then in existence to make a recommendation. To grant the declaration in the terms sought by the appellant, that is that the recommendation of the Land Court on 25 June 2010 was not authorised by the MRA, would be to improperly alter an historical fact.
19. [19]
    There remains the issue as to what is to become of the appeal currently before the Land Appeal Court. We are of the view that it is inappropriate for such appeal to simply remain, unresolved, before the court. In our view, the situation is somewhat similar to that which confronted the Land Court in the case of Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd & Ors.^[12] In Xstrata, the then Land and Resources Tribunal considered various objections by the Queensland Conservation Council to the grant of additional surface area of a mining lease to Xstrata. The Tribunal recommended to the Minister that the additional surface area be granted, and the Governor-in-Council subsequently made that grant. Subsequently, the Court of Appeal upheld an appeal by the Queensland Conservation Council against the recommendation of the Land and Resources Tribunal and referred the question of the hearing of objections by the Queensland Conservation Council back to the Land Court.^[13] Parliament subsequently passed validating legislation validating the actions of the Governor-in-Council in granting the additional surface area. The question then arose as to what the Land Court was to do with the objections of the Queensland Conservation Council which had been referred back to it by the Court of Appeal. In his reasons for decision, the then President of the Land Court had this to say:^[14]

“[25] In other words, both grants have been validated by legislation, notwithstanding the decision of the Court of Appeal. Therefore, the objections by the QCC can no longer exist.  Such objections have been overtaken by statutory intervention and there is no longer anything for the Land Court to hear and determine. The objections cannot exist in a vacuum. Therefore, the application by the QCC must be dismissed.

[26] However, I should make it clear that they are dismissed because of the effect of the Amendment Act, not because the merits of the objections have been dealt with. They simply no longer exist.”

20. [20]
    It is of course true that the facts of Xstrata and the case at hand are different in that, in Xstrata, there was a matter validly before the Land Court. It was simply a case that, because of the retrospective actions of Parliament, any further prosecution of that case would be futile, whereas in the case at hand the very referral of the matter to the Land Court has been deemed not to have occurred.
21. [21]
    Just as then President Trickett did not consider the merits of the objections in the Xstrata case, likewise in our view it is inappropriate for this court to consider the merits of the decision and recommendation of the Land Court of 25 June 2010. Quite simply, that decision and recommendation remains, as a question of fact, as one made by the Land Court on 25 June 2010. However, legislative events have overtaken that decision such that the referral to the Land Court is deemed to have no effect. Likewise, it follows as a logical consequence that the appeal to this court must be deemed to have no effect, although, in fact, the records of the Land Appeal Court will properly show that an appeal was made.

ORDER

In light of the amendments to s. 773 of the Mineral Resources Act of 1 September 2010, the appeal to the Land Appeal Court has no effect.

CULLINANE J

CAC MACDONALD

PRESIDENT OF THE LAND COURT

PA SMITH

MEMBER OF THE LAND COURT