Wright v The Minister for Employment, Skills & Mining
[2012] QSC 112
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Wright v The Minister for Employment, Skills & Mining[2012] QSC 112
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Wright v The Minister for Employment, Skills & Mining[2012] QSC 112
Wright v The Minister for Employment, Skills & Mining[2012] QSC 112
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial | |
PROCEEDING: | Application |
DELIVERED ON: | 4 May 2012 |
DELIVERED AT: | Supreme Court, Brisbane |
HEARING DATE: | 8 March 2012 |
JUDGE: | Douglas J |
ORDER: | Application dismissed |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – STANDING TO INSTITUTE PROCEEDINGS – PARTICULAR CASES – where applicants are local residents living two to three kilometres from the Ebenezer Mine – where evidence of the previous effect of the mine’s operations on the applicants’ amenities – where the relevant statutory scheme provides no procedure for objection regarding an application for renewal of a mining lease – whether the applicants were persons “aggrieved” pursuant to s 7(1)(a) of the Judicial Review Act 1991 ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the Minister for Employment, Skills and Mining for the State of Queensland reported to the Governor in Council that he was satisfied of the matters in s 286A of the Mineral Resources Act 1989 (“the Act”) and recommended the renewal of mining lease ML4712 on 5 September 2011 – where production ceased at the mine in December 2002 – where the mining lease expired on 1 November 2008 – where the leaseholder was also the owner of the land the subject of the mining lease – whether the leaseholder used the land for no other purpose than the purpose for which the mining lease was granted – whether other activities carried out on the land constituted a purpose other than the purpose for which the lease was granted – whether the cessation of mining constituted a breach of the mining lease – whether the Minister satisfied himself that the land still contained workable quantities of mineral or mineral bearing ore – whether the Minister satisfied himself that the public interest would not be adversely affected by the renewal of the mining lease – whether the Minister failed to consider the correct question of whether he was satisfied of the matters set out in s 286A of the Act such that the decision ought be set aside – whether the decision of the Governor in Council to renew the mining lease ought be set aside Judicial Review Act 1991 (Qld), s 7(1)(a) Mineral Resources Act 1989 (Qld), ss 276, 286A Allan v Transurban City Link Ltd (2001) 208 CLR 167 referred Australian Conservation Foundation Incorporated v The Commonwealth (1979) 146 CLR 493 referred Buck v Bavone (1976) 135 CLR 110 cited McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 referred Merewether v The Scottish Australian Mining Co Ltd (1907) 4 CLR 953 cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited North Queensland Conservation Council Inc v Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172; (2000) 5 QAR 196 referred Re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 referred O'Sullivan v Farrer (1989) 168 CLR 210 cited Save Bell Park Group v Kennedy [2002] QSC 174 referred Save the Ridge Inc v Australian Capital Territory (2004) 182 FLR 155 cited |
COUNSEL: | K N Wilson SC for the applicant A J Horneman-Wren SC with A D Scott for the first respondent R N Traves SC with N Andreatidis for the second respondent P J Flanagan SC with S A McLeod for the third respondent |
SOLICITORS: | Black & Co Lawyers for the applicant Crown Solicitor for the first respondent Dibbs Barker for the second respondent Hemming & Hart Lawyers for the third respondent |
[1] Douglas J: This is an application for judicial review of decisions relevant to the renewal of a mining lease at Ipswich. The first respondent, The Minister for Employment, Skills and Mining for the State of Queensland, decided to report to the Governor in Council that he was satisfied of the matters in s 286A(1) of the Mineral Resources Act 1989 (Qld) (“the Act”) and to recommend the renewal of mining lease ML4712 on 5 September 2011. On 15 September 2011 the Governor in Council granted the renewal for a period of 15 years from 1 November 2008. Those are the two decisions sought to be reviewed.
Background facts
[2] Mining lease ML4712 was granted for a term of 21 years from 1 November 1987. It covered land at Ebenezer, west of Ipswich and had an area of 675.0562 hectares. It became known as the Ebenezer Mine and the lease was granted for the purpose of mining for coal, shale and clay-bentonite.
[3] An open cut coal mine was conducted on the lease until about 2003 but coal has not been extracted from it since then. The mining lease was assigned to the second respondent, Zedemar Holdings Pty Ltd, in 2005. On 28 April 2008 Zedemar applied to renew the mining lease pursuant to s 286 of the Act, a renewal which was granted, as I have said, on 15 September 2011. The third respondent, OGL Resources Limited, agreed to acquire the lease from Zedemar in May 2011.
[4] The applicants are local residents who live some two to three kms from the mine and about the same distance from the rail line that was used to transport coal from the mine and also from the wash plant used by the mine. They say that, when the mine was in operation, it had a detrimental effect on their use and enjoyment of their properties because of noise and the vibration associated with blasting on the mine site, the use of heavy machinery and increased heavy vehicular traffic on the local streets. They also say that there was an increase in dust and fumes affecting the air quality in the area and strong lights at night affecting the general amenity of the area.
[5] They became members of a group known as Ebenezer Against Mining which met regularly to discuss the continuing problems potentially associated with re-opening of the mine. They also expressed concern about the effect of water discharges from the mine on local aqueducts, dams and waterways.
[6] The grounds for review of the decisions attacked are based on the terms of s 286A(1) of the Act which provides relevantly that:
“286A Decision on application
(1) Subject to part 17, division 5, the Governor in Council may grant an application for the renewal of a mining lease if the Minister is satisfied of each of the following -
(a) the holder has complied with -
(i)the terms of the lease; and
(ii) this Act in relation to the lease;
(b) the land the subject of the lease -
(i) still contains workable quantities of mineral or mineral bearing ore; or
(ii) is otherwise required for purposes for which the lease was granted;
…
(g)the public interest will not be adversely affected by the renewal; …”
[7] One of the terms of the lease incorporated into it by s 276(1)(a) was “that the holder shall use the land comprised in the mining lease bona fide for the purpose for which the mining lease was granted and in accordance with this Act and the conditions of the mining lease and for no other purpose …” (Emphasis added).
[8] Production ceased at the mine in December 2002, before the lease expired on 1 November 2008. The then operator informed the Director-General of the Department of Natural Resources and Mines of that likely eventuality by letter of 8 August 2002, saying that it would honour its supply obligations until March 2003 and that it would place the mine “under care and maintenance when final mining and washing operations, site rehabilitation, and coal sales are completed.” From then it seems likely that no mining was conducted on the lease until it expired.
[9] Other activities were carried out on the property where the lease was situated, owned by the mine operator. Those operations included the conduct of a drilling technology business, the operation of an explosives manufacturing business, the conduct of a chemical storage facility, a processing and bagging site and the grazing of cattle.
[10] For those reasons the applicants argue that the lease holder had not complied with the terms of the lease contained in s 276(1) by not using the land “for the purpose for which the mining lease was granted” and “for no other purpose.” Consequently, the applicants argue that the Minister could not have been satisfied pursuant to s 286A(1)(a) that the holder of the lease had complied with the lease and the Act in relation to the lease for the purposes of that section.
[11] The applicants also argued that the Minister had not satisfied himself independently that the land the subject of the lease still contained workable quantities of mineral or mineral bearing ore and asserted that he had made no inquiry as to whether the public interest would be adversely affected by the renewal of the mining lease.
[12] The assertions that the mine had ceased production and that other activities were occurring on the land were not significantly in issue but the effect of those matters on the proper construction of the Act was. The first legal issue was, however, whether the applicants had standing to bring the application.
Standing
[13] The applicants’ argument is that they are aggrieved by the decision to renew the lease and that their interests are adversely affected as required by s 7 of the Judicial Review Act 1991. They rely upon single judge decisions of this court in North Queensland Conservation Council Inc v Executive Director, Queensland Parks and Wildlife Service[1] and Save Bell Park Group v Kennedy[2] which were criticised by OGL Resources, the third respondent, as going beyond the relevant decisions of the High Court.[3]
[14] The Minister did not take any issue with the proposition that the applicants had standing. OGL Resources was the main proponent of that argument while Zedemar did not concede that standing had been established.
[15] OGL Resources argued that the applicants’ interests were not adversely affected and that they were not aggrieved by the decisions. Mr Flanagan SC for that company pointed to the fact that each of the applicants purchased their properties after the lease was granted in 1987 and drew attention to the words of Gibbs J in Australian Conservation Foundation Incorporated v The Commonwealth[4] that an interest in the subject matter of an action, which members of the public generally do not have, does not encompass “a mere intellectual or emotional concern”.
[16] The applicants’ proximity to the site of the mine and their evidence of the effects of its operations on their amenities previously supports the conclusion that they are sufficiently interested as to make them persons “aggrieved” pursuant to s 7(1)(a) of the Judicial Review Act 1991. Even though they came to the area while the mine was in operation, their evidence allows the conclusion that they have an interest in challenging the decisions which members of the public generally do not have because of the potential effects of an operating mine on the amenities of their daily lives.[5]
[17] Mr Flanagan’s argument drew attention to a passage in Allan v Transurban City Link Ltd[6] that what “serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself.” In that context he pointed to the statutory scheme here where an application for a mining lease includes an objection process where any person can object but in the case of a renewal of such a lease there is no procedure for objection.
[18] There is also evidence that the proposed new operations will affect nearby residents less than the earlier operations at the mine and that they are the subject of an environmental authority addressing potential nuisances. The point was also made that other nuisances already exist in the area. In my view, however, the applicants are likely to gain some particular advantage in living free of the potential for nuisance associated with the operation of such a mine. It does not seem to be necessary, even on the approach of Gibbs J in Australian Conservation Foundation Incorporated v The Commonwealth[7], that the advantage necessarily be, for example, the prevention of an actionable nuisance.
[19] Accordingly, it is my view that the applicants do have a “sufficient material interest”[8] in challenging this renewal which is greater than the interest held by members of the public generally because they live reasonably close to the mine and they are more likely to be affected by any resumption of its operations.[9]
Compliance with the terms of the lease
[20] There is a seductive simplicity in the applicants’ argument that there has been a failure to use the land bona fide for the purposes for which the lease was granted and for no other purpose, at least since the termination of mining on the site in 2003. Even if there has been such a breach, however, the question remains whether the necessary consequence is that the lease should not have been renewed. Let me consider first, however, whether there has been a breach of the lease.
Was the land in the mining lease being used for another purpose?
[21] I shall commence that exercise by considering whether the other activities carried out on the land meant that the land comprised in the mining lease was being used for purposes other than the purpose for which the mining lease was granted, contrary to s 276(1).
[22] There is no doubt that other activities were being carried out on the land. One has to bear in mind, however, that Zedemar was the owner of the land as well as the holder of the mining lease. There are rights it has to use the land as its owner which do not conflict with its obligations to use the land comprised in the mining lease for no other purpose than the purpose for which the lease was granted. The distinction is recognised by s 403(1)(e) of the Act which prohibits use of the surface area of the mining lease unless the person is the owner of the land and has the consent of the lease holder. It is obvious in a case where the mining is being conducted underground. There could be no objections to the surface being used by the owner of the land, with the consent of the lease holder, for grazing or agriculture. Here the mining was conducted in an open cut mine which did not take up the whole of the leased area.
[23] The reference to “no other purpose” in s 276(1) also appears in a context set by s 234 which describes the grant of a mining lease as being for purposes including the mining of the minerals specified in the lease and “for all purposes necessary to effectually carry on that mining” and for “such purposes, other than mining, as are specified in the mining lease and that are associated with, arising from or promoting the activity of mining.” Section 235 also sets out the general entitlements of the holder of a lease.
[24] The argument for the Minister, which seems to me to be correct, was that those inhibitions on the use of the land imposed on the lease holder do not affect what may be done on the land by its owner acting in that capacity. The lease is limited, for example, in allowing only certain minerals to be extracted so that the mining of other minerals would be forbidden, but the operation of another business by the landowner acting in that capacity would not.
[25] Zedemar’s case was that the facts relevant to these issues were put before the Minister accurately, which appears to be the case from a perusal of the ministerial briefing note, and other documentation, and that the application to renew the lease dealt with the issue clearly, which, again is a justifiable view of that document. It seems to me, therefore, that the Minister was entitled to conclude that there had been no breach of the requirement in s 276(1)(a) that the lease holder, as lease holder, use the land for no other purpose than the purpose for which the mining lease was granted.
Was there a breach of the lease because of the cessation of mining?
[26] Earlier legislation than s 276(1)(a) of the Act required a lessee to use the land “continuously and bona fide for the purpose for which it is demised”.[10] The parties were agreed, however, that the earlier legislation did not now apply to this lease and that there was no obligation of continuous use of the land imposed on the lease holder.
[27] Zedemar’s submissions focused on the phrase in s 276(1), “the purpose for which the mining lease was granted”, to argue that the relevant purposes extended to “all purposes necessary to effectually carry on that mining” and “such purposes, other than mining, as are specified in the mining lease and that are associated with, arising from or promoting the activity of mining.”[11] An example of such an associated purpose given was the rehabilitation of the leased land.[12] The argument was that use of the land carried a broader meaning than mining and extended to passive use, for example as a physical buffer between the area actively being mined and land used for other purposes on the leased area. The submission also drew attention to the subjective element associated with the requirement that the use be bona fide.
[28] Similarly, it was submitted for the Minister that there was no obligation imposed on the lease holder to perform any particular mining activity save as may be required under an express condition of the lease. No such condition was identified for the applicants.[13]
[29] I have previously referred to the letter dated 8 August 2002 where the then leaseholder notified the Natural Resources and Mines Department of the fact that the Ebenezer Mine would cease production when its current mining contract was completed in December 2002. The explanation given was that it had hoped that mining would continue for several more years but that “forecasts of continuing weak steaming coal prices combined with unfavourable currency movements and increasing production costs” had made the mine’s operation beyond 2002 not viable.[14] The letter advised that the lessee’s supply obligations ran until March 2003 and that it was then proposed that the mine be placed “under care and maintenance”.
[30] The applicants criticised that phrase as not referable to any concept defined by the Act, although they conceded that a temporary cessation of mining activity would be justifiable in appropriate circumstances. The absence of mining activity for the five years from 2003 until 2008 was what, they submitted, resulted in a necessary breach of the condition in s 276(1).
[31] As I have pointed out previously, the lease was assigned to Zedemar in 2005. It then applied to renew the lease in 2008, clearly expressing its intention to renew mining. In those circumstances, where no positive obligation to mine the lease continuously exists, and economic circumstances have rendered mining uneconomical, at least for a period, it should not follow necessarily that the lease holder is not using the land for the purpose for which the mining lease was granted. It may be maintaining the condition of the mine in such a state that it is feasible to resume operations when economic conditions improve. One would expect that the system should be able to operate so as to accommodate at least a temporary cessation in operations when mining is not profitable, and their resumption in better times, without the leaseholder necessarily breaching its obligations under s 276(1)(a).
[32] That is not to say that such a breach may not occur in such circumstances but, having regard to the nature of the obligation imposed by s 276(1)(a), there are questions of judgment and degree involved. In other words it need not follow that the cessation of mining operations, even for a significant period, amounts to a breach of the obligation in the lease imposed by that subsection. I am, therefore, not satisfied that a breach has been shown to have occurred on this evidence. It seems to me to be important here that no allegation of such a breach had been made against Zedemar where the relevant departmental officers appear to have been aware of the state of operations on the lease at the relevant times.
The duty imposed by s 286A
[33] It is in that context that one has to consider the relevant matters that the Minister had to take into account under s 286A.
[34] First, he had to be satisfied that the holder had complied with the terms of the lease and the Act in relation to the lease. On the view I have formed as to whether it has been shown that s 276(1)(a) was breached it seems clear to me that the Minister was entitled to be satisfied that the holder had complied with the terms of the lease and the Act. More relevantly, it does not seem to me that the Minister, who was cross-examined on these issues, can be said to have acted other than in good faith, having been advised properly of the factual background to the events. Nor is his conclusion one that is so unreasonable that no reasonable authority could properly have arrived at it.[15]
Should the Minister have satisfied himself independently that the land still contained workable quantities of mineral or mineral bearing ore?
[35] Section 286A(1)(b) requires the Minister to be satisfied that the land the subject of the lease still contains workable quantities of the mineral or mineral bearing ore. The applicants’ criticism in respect of this issue was that the Minister had simply accepted the statement by Zedemar that there were workable quantities of coal still on the land. The submission was that simply accepting the word of the applicant was not good enough and that the Minister should have made some independent investigation to satisfy himself of the facts.
[36] It is not immediately obvious to me why the Minister should not accept the statement of the applicant for renewal. There is little incentive for an applicant for renewal of a mining lease to pursue such a course unless it is satisfied that there is ore worth mining in the area of the lease. Zedemar’s information provided to the Minister referred to reserves of more than 12,000,000 tonnes. One of his ministerial briefing notes said that technical assessment by the Department of Employment, Economic Development and Innovation had revealed a high degree of coal resource within the “Bremer View Coal Deposit (MVL172)” and that there were approximately 30,000,000 tonnes of coal remaining on the mining lease area which was described as “a stand alone viable coal mining operation.”[16]
[37] The mining registrar had also noted that the lease exhibited coal seams within the pit walls while other information had been provided to the Department and to the Minister from the third respondent, OGL Resources, which had briefed him on its proposal to develop the coal resources on the leased area.
[38] There seems to me to have been ample evidence to satisfy the Minister that there was further coal on the land and that he was justified in reaching such a conclusion.
Did the Minister satisfy himself that the public interest would not be adversely affected by the renewal?
[39] Section 286A(1)(g) requires the Minister to satisfy himself that the public interest will not be adversely affected by the renewal. The criticism is that he did not consider the attitude of local residents or the impact of reopening the mine on surrounding residents.
[40] The submission for the Minister was that he was not required to make an inquiry of that nature when considering whether the public interest would be adversely affected by the renewal. It was argued that such a test imported a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter and the scope and purpose of the statute.[17] The argument was that such an assessment involved a number of competing arguments and that determining where the public interest lies is a question of fact and degree upon which reasonable minds may differ.[18]
[41] The Minister gave reasons for his decision which indicated that he took into account the economic benefits to the community of the mine including the creation of employment as well as the royalties that it would generate for the State. He also took into account that the local Council supported the proposed reopening of the mine based on assurances from OGL Resources that no coal washing plant would be constructed on the area of the lease and that washing of coal would be carried out on another nearby mining lease with very little impact on roads. Accordingly, he found that the public interest would not be adversely affected by the renewal.
[42] It was also clear that the Department had reported on negative community opinion to the continuation of the mining lease and that the Minister, in considering whether the public interest would be adversely affected, had met representatives of the community who were concerned about the expansion of mining in the Ipswich region. He had also received assurances from OGL Resources that they were focused on strong community engagement. Consequently, it was submitted, again, it seems to me, accurately, that the allegation that the Minister made no inquiry that the public interest would be adversely affected is not made out. Nor has it been established to my satisfaction that the Minister was not entitled to reach the conclusion that he did, namely that the public interest would not be adversely affected by the renewal.
Other matters
[43] The Minister’s statement of reasons was also criticised as not revealing his consideration of some of the relevant matters under s 286A(1) of the Act and because he expressed the view that the lease should be renewed.
[44] On his behalf it was pointed out that that view was expressed by him after the decision by the Governor in Council was made on 15 September 2011. It was also pointed out that he did address the correct question, namely whether he was satisfied of the matters set out in s 286A and if he was also satisfied of something which is not required, that was not to the point.
[45] The criticism of the statement of reasons in paragraph 18 in particular was also criticised as overly zealous, looking for the perception of error more keenly than the task of judicial review requires.[19]
Conclusion
[46] In my view the statement of reasons read as a whole indicates that the Minister considered the matters of which he needed to be satisfied under s 286A. In the circumstances, therefore, it is my view that the applicants have shown no reason why his decision that he was satisfied of the relevant matters should be set aside or that the decision of the Governor in Council to renew the mining lease should be set aside.
Order
[47] Consequently the application is dismissed. I shall hear the parties as to costs.
Footnotes
[1] [2000] QSC 172; (2000) 5 QAR 196.
[2] [2002] QSC 174.
[3] See Save the Ridge Inc v Australian Capital Territory (2004) 182 FLR 155, 160-161 at [18] per Crispin J.
[4] (1979) 146 CLR 493, 530-531.
[5] Australian Conservation Foundation Incorporated v The Commonwealth (1979) 146 CLR 493, 527, 530-531.
[6] (2001) 208 CLR 167, 174 at [17].
[7] (1979) 146 CLR 493, 527, 530-531.
[8] See Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247, 267 at [50].
[9] See, eg, BHP Coal Pty Ltd v Minister for Natural Resources and Mines [2005] QSC 121 at [10].
[10] See s 28(1)(a)(ii) of the Mining Act 1968.
[11] See s 234(1) of the Act.
[12] See cl 2.2(a) of the lease; ex. GM-3 to the affidavit of RG McKie filed 13 February 2012.
[13] Cf the positive obligations imposed on the lessee in Merewether v The Scottish Australian Mining Co Ltd (1907) 4 CLR 953.
[14] See ex PG-1 to the affidavit of PH Goode filed 8 March 2012.
[15] See, eg, Buck v Bavone (1976) 135 CLR 110, 118-119; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 654.
[16] See, ex SGH-1 to the affidavit of SJ Hinchliffe filed 13 February 2012.
[17] See O'Sullivan v Farrer (1989) 168 CLR 210, 216.
[18] McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 444 at [55] per Hayne J; Re Queensland Electricity Commission; ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393, 395.
[19] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.