Dunn v Burtenshaw & Anor [2010] QLAC 5

Land Court Act 2000 s.64

Land and Resources Tribunal Act 1999 No. 7 of 1999

Land Court and Other Legislation Amendment Act 2007

Re Warden French ex parte Serpentine-Jarrahdale Ratepayers and Residents Association [1994] 11 WAR 315

Re His Worship Mr Calder SM; ex parte Gardener [1999] WASCA 28; (1999) 20 WAR 525, [1992] 7 WAR 375 (at 385)

Re Minister for Mines, Fuel and Energy; ex parte Trythall [1992] 7 WAR 375 (at 385)

Sinclair v Mining Warden at Maryborough & Anor [1975] HCA 17; [1974-75] 132 CLR 473

Re The Mining Warden at Maryborough v Titanium Mines Pty Ltd ex parte Sinclair (1975) Qd R 235

[1] This is an appeal in respect of a recommendation made by the Land Court on 13 April 2010 whereby it was recommended that, subject to a special condition that no chemicals are to be used in the processing and separation of the mined material which is to be processed by washing and separating and drying and subject to fulfilment of any processes pursuant to the Native Title Act 1993 (Commonwealth), the Honourable Minister for Natural Resources and Mines and Energy and the Minister for Trade grant two mining leases, ML20541 and ML20542 on land described as Lot 43 on SP106048 and Lot 219 on AP2662. The leases are on a property otherwise described as Coolgarra Station at Mt Garnett within the Mareeba Mining District. The respondents are the owners of Coolgarra Station.

[2] This appeal is against a recommendation of the Land Court consequent upon a hearing pursuant to s.268 of the Mineral Resources Act 1989 (the MRA). Seemingly, the appeal is brought in reliance upon s.64 of the Land Court Act 2000. Mr Dunn, the appellant, in the present proceedings lodged objections to both mining lease applications. Accordingly a date was set for hearing of objections by the Land Court pursuant to s.265 of the MRA. The hearing took place at Brisbane on 1st and 2nd March 2010.

[3] The recommendations appealed against are identified in the orders contained in the recommendation of the learned Member below in the following terms:

Provided that a special condition consistent with paragraph 38 is made, and subject to the fulfilment of any processes under the Native Title Act 1993 (Cwth), I recommend to The Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that ML 20541 be granted to the Applicants, for the purposes and term sought by the applicants.

Provided that a special condition consistent with paragraph 38 is made, and subject to the fulfilment of any processes under the Native Title Act 1993 (Cwth), I recommend to The Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that ML 20542 be granted to the Applicants, for the purposes and term sought by the applicants."

[4] Relevantly, paragraph [38] of the learned Member's reasons provide as follows:

The objector is clearly concerned that community drinking water will be poisoned by contaminated water finding its way into the local water system. This however is not one of the objector's grounds of objection. That does not preclude the Court from fully considering environmental issues in making its recommendation. Mrs Burtenshaw has given evidence as to the form of her mining operations. If the applicants' conduct their operations in this way, no contamination is possible. This then is a classic example where the precautionary principle can be applied, particularly given the evidence of Mrs Burtenshaw that the mining operation will be a simple process of washing and separately drying the mined material, and that absolutely no chemicals at all will be used[1]. In these circumstances, it is a simple matter to ensure that there can be no possibility of water contamination by making the mining leases each subject to a special condition that no chemicals are to be used in the processing and separation of the mined material which is to be processed by washing and separating drying. I recommend to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade accordingly."

"the recommendation that the mining leases and EAs be granted with:

"conditions" that no toxins be used in the process; that the EPA keep checks occasionally; that all roads and tracks remain open to the public."

[6] The grounds of appeal are expressed as follows:

"1. That perjury committed by the principal witness demands a closer scrutiny of all other evidence used to obtain the 'decision'.

1. That the condition to prevent contamination and specifically of the town water supply is based on an incorrect premise.

2. Other conditions contained in the Decision are already being encroached upon. These conditions cannot be enforced.

[7] The appeal documentation filed by all of the parties to the appeal is extensive and constituted the following in addition to the material contained in the two volumes which constituted the Appeal Record Books.

6. Respondents' supplementary submissions 1 September

(footnoted to accord with the Record prepared by the Registry)

9. Letter dated 6 September (received 7 September) from Respondent

1. General Application by respondent filed 8 September to adduce further evidence

11. Email from respondent filed 9 September advising she is now self represented

12. Statutory declaration by respondent filed 10 September

1. Reasons of respondent for seeking to adduce further evidence filed 10 September

2. Submissions of the Statutory Party (Dept of Environment and Resource Management) 13 September

[8] On the hearing of the appeal, the appellant, Mr Dunn, appeared assisted by his friend Ms Frances Ford.

[9] The Burtenshaws, having initially engaged both solicitors and counsel ultimately appeared in person represented by Mrs Rosemary Burtenshaw.

[10] The Statutory Party was represented by Mr Kwan, solicitor from the Department of Environment and Resource Management.

[11] Prior to the decision to represent themselves the Burtenshaws had filed submissions including a detailed submission prepared by Ms DA Skennar of counsel.

[12] That submission raised a preliminary and quite important point relating to the jurisdiction of this Court to consider the appeal.

[13] The preliminary point raised is to the effect that s.64 of the Land Court Act 2000 (the LCA), while it grants a right to a party to a proceeding to appeal to the Land Appeal Court against all or part of "the decision" of the Land Court, the recommendation against which the present appeal purports to have been brought is not a "decision" as that term is used in the LCA.

[14] Section 64 of the LCA provides:

A party to a proceeding in the Land Court may appeal to the Land Appeal Court against all or part of the decision of the Land Court."

[15] As learned counsel for the respondent articulated in her written submissions "the question is whether the" "recommendation" under s.269 is a "decision" within the meaning of s.64 and whether the applicant and objectors are parties to a "proceeding".

[16] It should be noted immediately that neither of the terms "decision" nor "proceeding" are defined in Schedule 2 the dictionary to the LCA.

[17] There appears to have been no previous consideration of this point under the existing legislation, either by this Court or any other Court in Queensland.

[18] The role of the Land Court pursuant to s.265 to s.269 to make recommendations on a hearing of an application for the grant of a mining lease very largely mimics the role which was previously vested in the Office of the Mining Warden and the Mining Warden's Court set up pursuant to Part 10 Division 2 of the MRA as it was prior to the amendments which effectively extinguished the function of the Mining Warden's Court.[2]

[19] The requirement for the Land Court to make a recommendation to the Minister is set out in s.269 of the MRA. The recommendations made to the Minister by the learned Member below are consistent with the provisions of s.269 of the MRA.

[20] Relevantly that section provides as follows:

"(1) Upon the hearing by the Land Court under this part of all matters in respect of an application for the grant of a mining lease, the Land Court shall forward to the Minister -

(2) The recommendation of the Land Court upon an application for the grant of a mining lease shall consist of -

(a) a recommendation to the Minister that the application should be granted or rejected in whole or in part; and

(b) in the case of an application that relates to land that is the surface of a reserve and the owner of that reserve does not consent to the grant of a mining lease over that surface area, a recommendation to the Minister as to whether the Governor in Council should consent to the grant of the mining lease over that surface area and, if so, recommend the conditions (if any) to which the mining lease should be subject.

(3) A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Land Court considers appropriate, including a condition that mining shall not be carried on above a specified depth below specified surface area of the land."

[21] Once the recommendation is made to the relevant Minister then the obligations of the Minister are set out in s.271 of the MRA.

[22] Section 271(1) and (2) provides:

"271 Minister to consider application for grant of mining lease

(1) Every application for the grant of a mining lease must be considered by the Minister.

(2) In considering an application, the Minister must take into account for the application -

(a) any recommendation made to the Minister by the Land Court; and

(c) 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."

[23] It is unnecessary to dwell in detail upon the provisions of s.271 save to observe that the recommendation made by the Land Court in respect of the grant of a mining lease is but one of three factors which a Minister must take into account pursuant to s.271(2).

[24] The function of the Land Court pursuant to s.269 in Part 7 - Mining Leases can be contrasted with the function of the Land Court pursuant to Part 10 - Administration and Judicial Functions, Division 2 the Land Court where, in s.363 the MRA sets out the substantive jurisdiction of the Land Court.

[25] Section 363(1), (2) and (3) provides as follows:

(1) The Land Court shall have jurisdiction to hear and determine actions, suits and proceedings arising in relation to prospecting, exploration or mining or to any permit, claim, licence or lease granted or issued under this Act or any other Act relating to mining.

(2) Without limiting the generality of subsection (1), the Land Court shall have jurisdiction to hear and determine actions, suits and proceedings with respect to -

(a) the right to possession of or other interest or share in any mining claim, exploration permit, mineral development licence or mining lease; and

(b) the rights and entitlements to minerals mined under any mining tenement or other authority granted under this Act or any other Act relating to mining and to the products of mining; and

(c) the area, dimensions and boundaries of land (including the surface area of land) the subject of a mining tenement; and

(d) any encroachment or trespass upon or interference with or damage to land the subject of a prospecting permit, mining claim, exploration permit, mineral development licence, mining lease or other authority granted under this Act or the buildings, plant, machinery or equipment thereon; and

(e) any matter arising between applicants or holders in relation to prospecting, exploring or mining, or arising between applicants or holders and owners of land in relation to prospecting, exploring or mining; and

(ea) any dispute or other matter arising between persons identified in native title protection conditions as an explorer or as a native title party, if the conditions -

(i) under section 25AA, are included in the conditions imposed on a prospecting permit; or

(ii) under section 141AA, are included in the conditions determined for an exploration permit; or

(iii) under section 194AAA, are included in the conditions determined for a mineral development licence; and

(f) any determination or review of compensation as provided for under this Act or any other Act relating to mining; and

(g) the enforcement of any agreement or determination as to compensation under this Act or any other Act relating to mining; and

(h) any assessment of damage, injury or loss arising from activities purported to have been carried on under the authority of this Act or any other Act relating to mining; and

(i) any application required by this Act or any Act relating to mining to be made or heard in the Land Court.

(3) The Land Court also has jurisdiction to hear and determine actions, suits and proceedings with respect to any demand for debt or damages arising out of or made in respect of -

(a) the carrying on of prospecting, exploring or mining;

(b) any agreement relating to prospecting, exploring or mining."

[26] Further, it is noteworthy that notwithstanding the recommendation which emanates from the Land Court the Minister remains entitled to either recommend to the Governor-in-Council that a mining lease be granted or approved or to reject the application entirely. The Minister, pursuant to s.271(3)(c) also is vested with a power to direct the Land Court to hold a hearing or a further hearing into the application generally or in relation to particular matters specified by the Minister.

[27] Accordingly, it can be seen that the recommendation from the Land Court consequent upon a hearing pursuant to s.268 of the MRA is but one step which must be negotiated by any applicant for a mining lease. The recommendation of the Land Court below is in no way ultimately, or even in an interim way, determinative of the rights or entitlements of an applicant for a mining lease.

[28] Prior to the amendment of the MRA in 1999 and 2007 (Land and Resources Tribunal Act 1999 No. 7 of 1999 and Land Court and Other Legislation Amendment Act 2007) Act No. 39 of 2007 the task now imposed by s.269 was a function of the Mining Warden in the Mining Wardens Court and subsequently the Land and Resources Tribunal. The terms of the obligation were identical to those now set out in s.269 of the MRA.

[29] Section 7.26 of the Mineral Resources Act 1989 provided:

"7.26 Warden's recommendation on hearing. (1) Upon the hearing by the Wardens Court under this Part of all matters in respect of an application for the grant of a mining lease, the warden shall forward to the Minister -

(a) any objections lodged in relation thereto;

(b) the evidence adduced at the hearing;

(c) any exhibits;

(2) The recommendation of the warden upon an application for the grant of a mining lease shall consist of -

(a) a recommendation to the Minister that the application should be granted or rejected in whole or in part;

(b) in the case of an application that relates to land that is the surface of a reserve and the owner of that reserve does not consent to the grant of a mining lease over that surface area, a recommendation to the Minister as to whether the Governor in Council should consent to the grant of the mining lease over that surface area and, if so, recommend the conditions (if any) to which the mining lease should be subject.

A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the warden considers appropriate, including a condition that mining shall not be carried on above a specified depth below specified surface area of the land."

[30] The obligations of the Minister in the previously existing s.7.28 of the MRA are in terms similar to but not identical with the provisions of s.271 of the current form of the MRA.

[31] Because of the congruence between the functions of the mining warden pursuant to s.7.26 of the MRA and the function of the Land Court under the present incarnation of that Act, some guidance can be gained from a consideration by various courts of the status of recommendations made by mining wardens pursuant to similar legislation.

[32] Learned counsel for the respondents has usefully identified a number of reported decisions in which the function of the warden has been considered. In those cases the courts have consistently taken the view that a recommendation by a mining warden is an outcome of a ministerial or administrative function rather than a judicial function.

[33] For example, in Re Warden French' ex parte Serpentine-Jarrahdale Ratepayers and Residents Association[3] Ipp J considered the conduct of a mining warden at a hearing for mining leases pursuant to the Mining Act 1978 (Western Australia).[4] He observed (at page 328) "on the other hand, the warden does not decide whether or not to grant a mining lease. In hearing an application for the grant of such a tenement, the Warden is performing a investigatory and recommendatory function that assists the minister in determining whether the tenement should be granted. That function of the warden has to be seen in the light of the fact that the minister is expressly empowered by section 111A to take into account the public interest." and then later (at page 328) "the warden in making recommendations to the minister concerning mining lease applications does not exercise a discretion as to 'questions of policy and principal governing the exploration of mineral deposits in this State'. That is matter within the province of the minister. Nevertheless there are very good reasons why the warden should first investigate matters of public interest, in open court, with full opportunity for matters to be contested and argued, so that the minister is fully apprised of all relevant material, that has fairly and publicly been ventilated, before making a decision. See F Sinclair v Mining Warden at Maryborough (at 481) [1975] HCA 17; 1975 132 CLR 473."

[34] As can be seen, the obligations and recommendation of a mining warden pursuant to the Western Australian legislation closely mirror the previous functions of the mining warden in Queensland and the present functions of the Land Court under the current provisions of the MRA.

[35] The submissions of the respondent also usefully refer to a lengthy extract from the decision of the Western Australian Full Court in Re His Worship Mr Calder SM; ex parte Gardener[5] in which decision Ipp J set out in some detail matters to be taken into consideration when looking at the role of a mining warden.

[36] It is unnecessary to repeat here at length the extract referred to the court by the respondent save to refer to paragraphs [17] and [21] of that decision which state as follows:

"[17] The provisions relating to mining leases are essentially similar. S75(4) requires the warden to hear an application for a mining lease in open court. The warden is empowered to make a recommendation to the Minister, who may grant or refuse the mining lease as he or she thinks fit. In Re Warden French; Ex parte Serpentine-Jarrahdale Ratepayers and Residence Association (1994) 11 WAR 315 (at 328) I noted that, in hearing such an application, "the warden is performing an investigatory and recommendatory function that assists the Minister in determining whether the tenement should be granted". In my opinion, these functions are administrative in nature.

[21] S102 falls to be considered together with s98. Under s102 the holder of a mining tenement (other than a retention licence) may be granted a certificate of exemption in regard to the prescribed expenditure conditions. S102(5) provides that where an objection to the application for a certificate of exemption is lodged, the application shall be heard by the warden in open court. Nevertheless, the warden is only empowered to make a recommendation to the Minister who determines whether or not a certificate of exemption should be granted (s102(6) and (7)). In my opinion, for the reasons previously expressed, the warden's power to make a recommendation under s102(6) is administrative. This is consistent with the remarks of Malcolm CJ in Re Calder: Ex parte St Barbara Mines Ltd [1999] WASCA 25."

[37] Again it is noteworthy that, like the Western Australian legislation, Queensland legislation at section 267(1)(b) of the MRA requires the minister to take into account the 'public interest'.

[38] In the Western Australian decisions referred to above the court placed some emphasis upon the fact that the Warden's Court was not making a final determination in formulating a recommendation to the minister.

[39] The Land Court members' powers pursuant to the MRA s.269 are, in all relevant respects, congruent with the obligations of the mining warden as that office previously functioned in Queensland and as it operates in Western Australia. The observations made by Murray J in Re Minister for Mines, Fuel and Energy; ex parte Trythall[6] are consistent with the propositions advanced and accepted above that the Land Court's function in making a recommendation to the minister is an administrative one.

[40] In the ex parte Trythall case Murray J observed:

"It is necessary to determine what sort of function the Warden exercises in dealing with an application for a prospecting licence. It is certainly clear that in relation to those forms of tenement which lie within the grant of the Minister upon the recommendation of the Warden, in hearing the application and any objections thereto, and in making a recommendation, the Warden acts albeit judicially, in a purely administrative capacity: Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473, 481 and Stow v Mineral Holdings (Aust) Pty Ltd [1979] HCA 30; (1977) 14 ALR 397."

[41] Closer to home is the case of Sinclair v Mining Warden at Maryborough & Anor.[7] In this decision the High Court and the courts below had to consider the obligations of the mining warden in Queensland pursuant to the Mining Regulations 1971. Barwick CJ observed (at page 481):

"... I cannot accept the proposition that the hearing of the application and of the objections is a mere formality: nor can I accept the submission made on behalf of the respondent company that the warden cannot be expected to examine in depth matters which would justify a recommendation that the application be refused or which would justify the acceptance of objections raised to the grant of the mining lease. The mining warden's recommendation, whether favourable or unfavourable, is a prerequisite to the grant of a mining lease. Whilst it is clear that the Minister may reject the warden's recommendation, it is also equally clear that a mining lease may not be granted unless there has been a recommendation, either favourable or unfavourable, of a mining warden. This emphasizes the place in the scheme of the grant of mining leases which is occupied by the hearing by the warden of the application and objections. ..."

[42] In the Full Court below,[8] in dicta which prompted no disagreement from the High Court, Lucas J had observed:[9]

"... it seems to me, first, that the warden's function in hearing an application and objection is somewhat limited. He is required only to make a recommendation to the Minister; there is nothing in the Act or regulations which would require him to communicate to the parties the reasons for his recommendation, nor, in my opinion, is there any principle of natural justice which would require him to state his reasons. If he recommends that an application should be rejected, he must inform the Minister of his reasons. ... "

[43] Those views were echoed by Kelly J in his judgment in the same case where he observed:[10]

"... The Act does not deal with the functions which the warden is to perform on the hearing of an application for a lease and any objections to that application and, by its terms, reg. 41 itself which deals with the hearing does no more than provide for a hearing and the forwarding of a recommendation. Somewhat curiously the warden is required to inform the Minister of the reason for his recommendation if he recommends that the application be rejected although there is no such requirement if he recommends that it be granted, but that does not provide any clue as to the matters which the warden should consider before making his recommendation. The warden is not obliged to inform the parties of his reasons, although in this instance he did so."

[44] In Re Minister for Mines, Fuel and Energy; Ex parte Trythall and Another[11] Murray J usefully observed,[12] referring to the role of the Western Australian mining warden under the Western Australian regime and referring with approval to the decision of Wickham J in Hazlett v Rasumussen:[13]

"As His Honour there put it, in relation to an application for registration of a mineral claim in respect of which objections have been lodged and were to be heard: 'the part played by the Warden in this process is that of an official functionary.' It was that view which led the court in that case to conclude that the Warden's duty was merely to decide upon and make recommendations based upon, the applicant's compliance with the statutory requirements, without which the application could not succeed.

Where, as in the case of a prospecting licence, the application lies within the grant of the Warden, I think the same contrast may be drawn between the Warden's function in deciding to grant or refuse the licence and his or her exercise of jurisdiction when constituting a Warden's Court. That view was expressed succinctly by Barwick CJ in Wade v Burns [1966] HCA 35; (1966) 115 CLR 537 at 551, in which case the court was dealing with the decision of a Warden to refuse authority to enter for exploration purposes upon private lands, again a matter within the grant or refusal of the Warden. As his Honour put it:

'In connection with the grant or refusal of an application for authority to enter, the Warden is acting merely ministerially as an official, and not in any sense in exercise of a jurisdiction. It is, of course, otherwise when he constitutes the Warden's Court. Such powers, authorities or discretions as are given to him are given expressly.' "

[45] It was that view which led to the Court in that case to conclude that the warden's duty was merely to decide upon and make recommendations based upon, the applicant's compliance with the statutory requirements without which the application could not succeed.

[46] The same obligation now lies upon the Land Court in Queensland in conducting a hearing pursuant to s.268 of the MRA. The resultant recommendation is in no way finally determinative of the issue of the grant of a mining lease and, indeed, any objector dissatisfied with the recommendation would still retain an entitlement to agitate with the Minister the terms of the recommendation.

[47] For the reasons set out above and having regard to the Court decisions referred to we have come to the view that the recommendation of the learned Land Court member below is not a "decision" of the sort contemplated by s.64 of the LCA insofar as it is not a proceeding but rather an administrative step consequent upon a statutorily prescribed enquiry conducted by the learned Land Court member.

[48] This Court does not have jurisdiction to address the other matters raised by the respondent and the appellant with respect to seeking leave to adduce further evidence. As a result, no appeal lies to this Court from the Land Court member's recommendations.

[49] The appeal is therefore dismissed.

[1] See transcript, page 2-80, lines 33-52. Note specific reference to no use of cyanide or arsenic.

[2] See Land and Resources Tribunal Act No. 7 1999 Schedule 3.

[3] [1994] 11 WAR 315.

1. [4]Mining Act 1978 (Western Australia). Section 75

(4) Subject to subsection (4a), if a notice of objection -

(a) is lodged within the prescribed time; or

(b) is not lodged within the prescribed time but is lodged before the mining registrar has forwarded a report to the Minister under subsection (2) and the warden is satisfied that there are reasonable grounds for late lodgement, and the notice of objection is not withdrawn, the warden shall hear the application for the mining lease on a day appointed by the warden and may give any person who has lodged such a notice of objection an opportunity to be heard.

(4a) If the application for the mining lease is accompanied by the documentation referred to in section 74(1)(ca)(ii), the warden shall not hear the application unless -

(a) the warden has received a copy of the section 74A report in relation to the application; and

(b) the section 74A report states that there is significant mineralisation in, on or under the land to which the application relates.

(5) The warden shall as soon as practicable after the hearing of the application forward to the Minister for the Minister's consideration -

(b) any maps or other documents referred to in the notes of evidence; and

(c) a report which recommends the grant or refusal of the mining lease and sets out the reasons for that recommendation.

[5] [1999] WASCA 28; (1999) 20 WAR 525.

[6] [1992] 7 WAR 375 (at 385).

[7] [1975] HCA 17; [1974-75] 132 CLR 473 1975 Qd R 235.

[8] Re The Mining Warden at Maryborough v Titanium Mines Pty Ltd ex parte Sinclair (1975) QdR 235.

[11] [1992] 7 WAR 375.

[13] [1973] WAR 141.