Sunland Cattle Co Pty Ltd v Kingham & Ors

This case involved an application for judicial review of a recommendation made by the Land Court that certain mining leases be granted. The applicant alleged that the Land Court had a duty to undertake an investigation into matters of public interest, and had failed to do so. Justice Martin rejected this argument, concluding that s 269 of the Mineral Resources Act 1989 limited the scope of the Land Court’s task, in particular to considering objections which had been made by the parties.

Martin J

8 November 2021

Background

Pembroke Olive Downs Pty Ltd (“Pembroke”) seeks to operate a coal mine near Moranbah. It applied for five mining leases for that purpose. [1]–[2]. Sunland Cattle Company Pty Ltd (“Sunland”) owns a cattle property downstream from the proposed mine, adjacent to the Isaac River, which also runs through, or along the boundaries of, the proposed mining leases. [2].

Sunland objected to the mining leases being granted, which meant the applications for the leases, and Sunland’s objections, were referred to the Land Court. [4]. The President of the Land Court (the first named respondent in this case) conducted the hearing, and recommended that the mining leases be granted. [4]. Subsequently, the Minister for Natural Resources, Mines and Energy recommended that three of the five leases be granted. [5].

Sunland sought to judicially review the Land Court decision and the Minister’s decision, contending that they ought to be quashed or set aside and the matter remitted to the Land Court for reconsideration. [6]. The noteworthy ground of review was an alleged failure to conduct the hearing as required by law – namely, by failing to undertake an investigation into matters of public interest. [22]. The particular “public interest” identified related to effects on those downstream of the Isaac River. [29].

Ultimately, the application for review was unsuccessful. [81].

Whether the Land Court was required to undertake an investigation into matters of public interest

Sunland argued that the Land Court had been “required to undertake an investigation into matters of public interest which, in this case, included how the proposed mine would affect downstream water users with respect to both surface water and near-surface groundwater”. [22]. It submitted that the “necessity” of such an investigation arose, in particular, from s 269(4)(k) of the Mineral Resources Act 1989 (“the Act”), which provides that:

“The Land Court, 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—

…

the public right and interest will be prejudiced; …”

Sunland also relied upon various judicial observations, including from McMurdo J (as his Honour then was) in BHP Billiton Mitsui Coal Pty Ltd v Isdale [2015] QSC 107, to the effect that (quoted at [25]):

“in referrals to the Land Court of the present kind, the scope of the court’s factual inquiry is not defined by the parties. Their respective arguments and the evidence which they present are to be considered. But the Land Court must have regard to considerations which extend beyond the respective interests of the applicant and the objectors. In particular, it must consider the public interest”

Justice Martin did not accept that the Act imposed a duty upon the Land Court “to engage in an in-depth enquiry into matters such as the public interest”. [45]. Instead, the function it was required to perform was reflected in s 268 of the Act, which notably provides (extracted at [13]):

“(2) At a hearing … the Land 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 and other matters and shall not be bound by any rule or practice as to evidence.

(3) The Land 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.”

Martin J observed that the discretion afforded to the Court in s 268(2) is “sufficiently wide to allow it to conduct a hearing by reference only to the matters raised in the objections which have been filed and the evidence which the parties provide in the hearing”. [48]. Further, the “existence of that discretion is inconsistent” with the idea that “there is a duty imposed on the Court to undertake particular investigations or enquiries”. [48].

Further, it was of relevance that there was “nothing in the relevant statutes” providing “the type of powers that would be necessary if the Court were to engage in the inquiries” Sunland alleged it was required to. [49]. If the Court were required to undertake investigations, then “one might expect that to be made plain by provision for the manner in which investigations were to take place”. [50].

Finally, s 268(3) prohibits the Land Court from hearing evidence in relation to a ground that is not contained in a duly lodged objection. That effectively worked to “place a boundary around the objections which have been made and excludes the Land Court from going outside that boundary when considering those objections”. [51]. In conclusion, his Honour considered that, on a hearing of this kind, “it is not the role of the Land Court to run down every hare which may be started by an objector”, particularly when the objector does not “point to the hare on the horizon and set off in pursuit itself”. [52].

W Isdale