Lee v Kokstad Mining Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION: Lee v Kokstad Mining Pty Ltd [2007] QCA 248

PARTIES: TREVOR JAMES LEE (appellant/respondent/appellant) v KOKSTAD MINING PTY LTD (ACN 093 248 527) (respondent/appellant/respondent)

FILE NO/S: Appeal No 10019 of 2006 / AML No 193 of 2004

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Land and Resources Tribunal at Brisbane

DELIVERED ON: 3 August 2007

DELIVERED AT: Brisbane

HEARING DATE: 27 March 2007

JUDGES: Jerrard JA, Wilson and Douglas JJ / Separate reasons for judgment of each member of the Court, Jerrard JA dissenting in part

ORDER: Declare that the orders made by the Land and Resources Tribunal constituted by Koppenol P on 6 December 2005 having been made without jurisdiction were of no effectThe appeal is dismissedThe appellant pay the respondent’s costs of the appeal

CATCHWORDS: MINING LAW – LEGISLATION RELATING TO MINING FOR MINERALS – MINER’S RIGHTS AND MINING LICENCES, TENURES AND INTERESTS – MINING TENURES AND INTERESTS – NATURE OF TENURE AND INTERESTS WHICH MAY BE GRANTED AND OVER WHAT LANDS – whether the Land and Resources Tribunal’s interpretation of s 307 of the Mineral Resources Act 1989 (Qld) was correct / Land and Resources Tribunal Act 1999 (Qld), s 65, s 67 / Mineral Resources Act 1989 (Qld), s 252A, s 252B, s 265, s 268, s 307 / Uniform Civil Procedure Rules 1999 (Qld), r 667(2)(a) / ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347, considered / Jackson v Sterling Industries Limited (1987) 162 CLR 612, applied / Lacey v Juunyjuwarra People and Anor [2004] QCA 297 , Appeal No 2798 of 2004, 13 August 2004, applied

COUNSEL: A J Morris QC, with AC Barlow, for the appellant / H B Fraser QC, with D Williams, for the respondent

SOLICITORS: Kinneally Miley for the appellant / Zoe Farmer, Lawyer for the respondent

1. JERRARD JA: On 7 February 2005 the Land and Resources Tribunal (“the LRT”) established by the Land and Resources Tribunal Act 1999 (Qld) (“the LRT Act”), and then constituted by the Mining Referee Mr Windridge, recommended under s 269(1) of the Mineral Resources Act 1989 (Qld) (“the MRA”) to the Honourable The Minister for Natural Resources and Mines that Mining Lease No 50207 be granted over the whole of the application area for a term of 10 years. On 6 December 2005 the LRT, then constituted by President Koppenol, set aside that decision, and ordered that the appellant Mr Lee lodge his objections, if any, to the grant of that mining lease by 23 December 2005.

2. On 23 October 2006 the LRT, then constituted by Deputy President Smith and Mr Windridge Mining Referee sitting as a panel,¹ declared that President Koppenol’s order of 6 December 2005 did not authorise the LRT to hear Mr Lee’s objection, even though lodged within the time specified in President Koppenol’s order. The LRT also ruled on 23 October 2006 that the respondent Kokstad Mining Pty Ltd had not amended its application for that mining lease; and that even if it had, then s 307 of the MRA required the application should proceed in its amended form from the point that the original application had reached, and that part 7 of the MRA did not apply in respect of the amended application as if it was a new application. This appeal is, in reality, against the latter rulings i.e. that the application had not been amended, and that in any event an amended application need not be advanced by an applicant as if it were an entirely original one.

3. Section 67 of the LRT Act allows an appeal from the LRT to this Court, but only on a question of law. The question of law raised is the correct construction of s 307 of the MRA, which provides for the abandonment or amendment of applications for mining leases. Mr Lee’s Notice of Appeal dated 20 November 2006 purports to raise other matters, but those grounds simply reflect the errors and oddities in the proceedings in the LRT. Those proceedings ultimately led to the Deputy President’s reasoning and decision on the construction of s 307, raising a question of law.

Background matters and prior rulings

4. Kokstad Mining lodged its application for what would be Mining Lease No 50207 at the office of the Mining Registrar at Brisbane on 17 September 2003. The application was for a mining lease over 96 hectares of land, on country situated approximately 20 kilometres northeast of Roma in the Bungil Shire; the application area covered three lots owned by three separate title holders. Part 7 of the MRA makes detailed provisions for the application, consideration, and recommendation of the grant of mining leases, and for compensation, which were referred to in the judgment of Mullins J in this Court’s decision in ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347 at 353-4.

5. Those provisions include requirements for marking out the land proposed to be the subject of the application, the requirements (in s 245 of the MRA) for an application for the grant of a mining lease, provisions (in s 252) for a certificate of mining application to be prepared by the mining registrar (for the mining district in which is situated the land in respect of which the mining lease is sought, and with whom the application must be lodged), signed by the applicant, and given to each owner of the land the subject of the proposed mining lease. Provision is then made in s 252A and s 252B of the MRA for the interlinking of its provisions with those of the Environmental Protection Act 1994 (Qld) (“the EPA”). The effect of s 252A is that after the mining registrar has received information about the application relevant to the latter Act, the mining registrar must fix a “last objection day” for lodging objections to the application and give the applicant a Certificate of Public Notice, and the EPA administering authority a copy of the certificate. Section 252B required that the applicant post a copy of the certificate of public notice on the datum post of land the subject of the mining lease, and give a copy of that certificate and of the application for the mining lease to each owner of relevant land, and the relevant local government. That “last objection day” fixed by the mining registrar must be at least 20 business days after the certificate is given, and the date must be specified in the certificate.

6. Those MRA provisions, if complied with, should allow affected land owners sufficient time within which to lodge an objection to any proposed mining lease with the mining registrar. The registrar is obliged by s 265 of the MRA, within five business days after the last objection day, to refer the application for the mining lease, and all properly made objections to it, to the LRT for hearing. Section 265 defines a “properly made objection” as one lodged in accordance with s 260 of the MRA; that latter section relevantly provides that:

“An entity may, on or before the last objection day for the application, lodge with the mining registrar an objection in writing in the approved form.”

7. It was common ground on this appeal that the MRA did not impose any restrictions on the identity of the entities who might lodge objections. It seems clear enough that to be a properly made objection, and therefore one referred to the LRT by the mining registrar, the objection must be lodged with the mining registrar on or before the last objection day.

8. Section 268 of the MRA provides as follows:

“268 Hearing of application for grant of mining lease

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.

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.

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.”

Section 269(4) specifies a quite extensive range of matters which the Tribunal shall take into account and consider when making a recommendation to the Minister that an application for a mining lease be granted or rejected in whole or in part. The Minister in turn makes a recommendation to the Governor in Council (s 271); the latter body makes the grant of the lease, if any (s 254).

9. Section 268 has other provisions, but none relevant to this appeal. The quoted sub-sections were considered by this Court in ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation. This Court held that s 268(3) was to be construed as qualifying s 268(2), and that accordingly the LRT was precluded from hearing submissions or evidence from an objector to the grant of a mining lease on a matter not raised in its duly lodged objection. The decision in ACI Operations v Quandamooka Lands Council Aboriginal Corporation has the effect, as put by Mackenzie J in that matter, that the Tribunal’s right to hear such persons and inform itself in such a manner as it considered appropriate under s 268(2) is subject to the limitation in 268(3) 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 objector subsequently wishes to agitate.

10. The relevance of that decision in this matter is that it was common ground on this appeal that the provisions of Part 7 of the MRA had been complied with by Kokstad Mining, which had obtained the specified certificates and taken the required steps to give notice to the owners of the land the subject of the application and to the local authority. None of the three affected land owners, and nobody else, had lodged any objection with the mining registrar by the last objection day. Accordingly, Mr Windridge considered the application on the papers, noting that there were no valid objections to the application i.e. any lodged within the prescribed time, and he proceeded to consider the various criteria which s 269(4) required him to consider. He recommended to the Minister that the mining lease be granted over the whole of the area applied for, for the purposes and term sought.

11. On 5 December 2005 President Koppenol heard an application by Mr Lee, one of the three affected land owners, that the mining referee’s recommendation made on 7 February 2005 be set aside. Mr Lee owns a property used for grazing stock named “Brindley Park”, 35,000 acres in area, managed by employees of one of his companies. He lives in Brisbane; although Kokstad Mining had followed all of the required statutory procedures in advertising and notifying its mining lease application, Mr Lee’s case was that he had remained unaware of that application, and he would have lodged an objection to it. His concern was that that application, which was to extract sodium bicarbonate, sodium carbonate and sodium chloride from ground water, involved the construction of large evaporation ponds of less than 10 hectares in area, the exact locations of which were not specified in the application for the mining lease. On the application originally lodged, at least one (if not all) of the evaporation ponds – which would be large areas of very salty water – would be on Mr Lee’s land.

“The tribunal has, for exercising jurisdiction conferred under this or another Act, all the powers of the Supreme Court, and may in a proceeding before the tribunal, in the same way and to the same extent as may be done by the Supreme Court in a similar proceeding–

(a) grant any relief or remedy; and

(b) make any order, including an order for attachment or committal because of disobedience to an order; and

(c) give effect to every ground of defence or matter of setoff, whether equitable or legal.”

Section 65(2) gives further specific power to grant relief under a declaration of rights, or under an injunction, power to appoint a receiver, to stay a proceeding or part, and the like. Section 65(5) provides that, to the extent that the practice and procedure of the Tribunal in exercising its jurisdiction in particular matters, including enforcing its judgments and orders, are not provided for in the rules, they must as far as practicable be the same as the practice and procedure of the Supreme Court in similar matters.

14. The powers granted by s 65 of the LRT Act are available when it is exercising jurisdiction conferred on it by an Act. Mr Windridge had exercised the jurisdiction conferred by the MRA on the LRT on 7 February 2005, when he considered Kokstad’s application for a mining lease. An appeal on a question of law lay from the Mining Referee to the President of the Tribunal, with the President’s leave, under s 67 of the LRT Act, but the application made by Mr Lee to the President was not an appeal from the Mining Referee. No provision of the MRA or the LRT Act, or any other Act, gave the LRT as constituted by the President the jurisdiction to review a decision of the LRT constituted by the Mining Referee, other than as an appeal. In hearing the application to set aside the Mining Referee’s recommendation, President Koppenol was not exercising a jurisdiction conferred under any Act.

15. Further, President Koppenol had earlier held in ACI Operations Pty Ltd v Friends of Stradbroke Island Association Inc [2000] QLRT 7 that, having regard to the purpose, language, scope and object of the MRA, an objection lodged after the prescribed last day for lodgement was invalid. In Australian Finegrain Marble Pty Ltd & Kagara Pty Ltd [2006] QLRT 123, President Koppenol reconsidered his earlier decision in this matter, and in Australian Finegrain Marble adhered to what he had first held in ACI Operations v Friends of Stradbroke Island, namely that a late mining lease objection was invalid, and that the Tribunal had no power to extend the time for objections. The President noted that when the matter had been argued before him in Kokstad Mining, counsel had not disputed the LRT’s jurisdiction to make the orders that the President made, and had not brought his earlier decision in ACI Operations v Friends of Stradbroke Island to his attention. In Australian Finegrain Marble, the President concluded that his decision in Kokstad Mining was decided per incuriam, and that a different and contrary result would have followed in it if his decision in ACI had been drawn to his attention at the time.

16. This Court in held in De Lacey v Juunyjuwarra People and Anor [2004] QCA 297 that the LRT was a statutory tribunal having only the jurisdiction conferred on it by statute; and that it had fallen into error in that particular case in likening itself to a superior court of general jurisdiction.² While s 54 of the LRT Act provides that the LRT is a court of record, it is not established as a superior court of record. In Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 618, Wilson and Dawson JJ wrote that:

“Ordinarily, a superior court of record is a court of general jurisdiction which means that, even if there are limits to its jurisdiction, it will be presumed to have acted within it. That is a presumption which is denied to inferior courts and is denied to a federal court such as the Federal Court.”

17. The orders the President made on 6 December 2005 were made in excess of the jurisdiction conferred on the LRT, and pronounced orders having an effect contrary to s 268(3) of the MRA, and to the construction of that section settled upon by this Court in ACI Operations v Quandamooka Lands Council. The President’s order purported to restart the proceedings in the LRT, with Mr Lee as an objector, but the LRT, however constituted later when hearing the purportedly re-enlivened application, was prohibited by that section and its proper construction from entertaining any objection not contained in an objection duly lodged. On this appeal Mr Morris QC, senior counsel for Mr Lee readily conceded that on the proper interpretation of the MRA, duly lodged must mean duly made, that is, made timeously in accordance with the provisions of the MRA; that was a concession that an objection duly lodged was restricted to a properly made objection, one lodged on or before the last objection day. The President’s order erroneously allowed Mr Lee to lodge an objection which the LRT was not allowed to hear. There was also the problem, when relying on UCPR r 667(2)(a), that Mr Lee was not a party in February 2005.

18. Mr Morris QC contended that the critical point was that Kokstad Mining had never appealed the order made by the President on 6 December 2005, and even on this appeal had not sought leave to cross appeal and challenge that order. This is accurate, and is one of the oddities in this matter, but it does not save the orders made on 6 December 2005 from invalidity as beyond the power of the LRT. Mr Morris QC did not really oppose the suggestion made by this Court that it would be appropriate in this matter for the court to declare those orders were invalid.

19. That would have the effect that Mr Windridge’s recommendation of 7 February 2005 would continue to be a validly subsisting recommendation. But it too has been overtaken by other events, namely that by a notice in writing dated 26 May 2006 and given to the mining registrar on or about 31 May 2006, Kokstad Mining applied under s 307 of the MRA to abandon part of the surface area of its application for Mining Lease No 50207. The effect of the amended application was to remove Mr Lee’s land from the land the subject of the application. This has the result that the proposed evaporation ponds would no longer be sited in whole or in part on his land, but on the land of the other two land owners. Mr Lee still objects to the amended proposal, and at least one of the other land owners also wants to object, although neither of those other land owners made any duly or properly lodged objection.

20. Mr Lee’s argument, if heard, would be that the large salt water drying ponds on the other, adjacent, properties might well contaminate the fresh ground water on his. Apparently for that reason, he contended in the proceedings heard before the LRT in August 2006 – as a consequence of President Koppenol’s orders of 6 December 2005 – that Kokstad Mining was obliged by s 307 of the MRA to start its application process again, and in particular regarding notification to land holders, thus re-enlivening a new right to lodge objections. Those August 2006 proceedings had ultimately resulted in Deputy President Smith holding, in the decision delivered on 23 October 2006, that the President’s orders of 6 December 2005, requiring the Tribunal to hear Mr Lee’s late lodged objections, were beyond jurisdiction; I respectfully agree. The LRT as constituted in August 2006 went on to consider the contention that the application had been amended, and had to be restarted.

“(1)The applicant for a mining lease may, at any time before the grant of the mining lease, by notice in writing to the mining registrar abandon the application in respect of the whole or part of the land to which the application relates.

(2) The abandonment shall take effect on the day next following its receipt by the mining registrar.

(3) The applicant for the grant of a mining lease who gives a notice referred to in subsection (1) to the mining registrar shall forthwith serve a copy of that notice on all other persons upon whom the applicant was required under this Act to give a copy of the certificate of public notice for the mining lease.

(4) Where an application for the grant of a mining lease is abandoned in respect of part only of the land to which the application relates, the application shall be amended to show the area in respect of which the mining lease application is to remain in force in the same manner as is required for an original application and the amended application shall proceed in respect of that area in accordance with this part.

(5) The mining registrar must, within 5 business days after an abandonment or partial abandonment, give written notice of it to the EPA Administering Authority.”

22. The LRT held that, despite the abandonment by Kokstad of that part of the surface area of the mining lease which was over Mr Lee’s land, because the original application and the amended application used identical words to describe the proposed mining, the application had not been amended. I respectfully disagree; the application had been amended to show that Kokstad Mining abandoned the application in respect of the surface area of Mr Lee’s land. The difference is shown in the diagram marked “2” on each of the original and amended application. On the amended application, the surface area of the application is restricted to lot 20 and lot 28 and excludes lot 7 (Mr Lee’s land); on the original application it was for the surface area of all three lots as shown on the identical sketch. That constituted an abandonment in respect of part only of the land to which the application related, and required that the application be amended in accordance with s 307(4). That was to show the area in respect of which the mining lease application was to remain in force “in the same manner as is required for an original application.” Those latter words sensibly describe the requirements set out in s 245 of the MRA, with which the both the original and amended application did comply in quite considerable detail. It is the area of land, its location, dimensions, and description which must be shown.

23. I respectfully disagree with the submission of Mr Morris QC that s 307(4) requires, in the words quoted above, that an application amended by abandoning part of the land must be restarted. The subsection provides that the “amended” application shall proceed in respect of the area for which the application is to remain in force, and the most obvious construction of that is the one given by the LRT as constituted by Deputy President Smith. This is that the amended application picks up from the point the original application had reached and continues from there in its amended form. When part only of the mining lease application was abandoned, the application proceeded for the balance of land. As the Deputy President remarked, those circumstances could be contrasted with the position where the holder of a mining lease sought to include an additional surface area of land; s 275 of the MRA required that that application must go through the posting, certificate of application, and certificate of public notice procedures of Part 7. Had the legislature intended that a partial abandonment under s 307 would have the same consequence, that could very easily have been so provided.

24. The orders and reasons of the Tribunal as constituted by Deputy President Smith and the Mining Referee, published on 23 October 2006, incorrectly held that Kokstad Mining had not amended its application; the Tribunal made no orders on the application before it by Kokstad Mining, which was to adjourn the hearing of its application and Mr Lee’s “objection” indefinitely. Instead, the Tribunal dismissed an application by Mr Lee (that the application for Mining Lease No 50207 be dismissed), and an application by him for his costs; and dismissed an application by one of the other land owners seeking orders allowing that land owner to become a late objector.

declare that the orders made by Koppenol P on 6 December 2005 were invalid;

declare that the respondent Kokstad Mining Pty Ltd did amend by notice dated 26 May 2006 and given to the Mining Registrar pursuant to s 307 of the Mineral Resources Act, its application for Mining Lease No 50207 by applying to abandon part of the surface area of its application;

order that the appeal be dismissed; and

that the appellant pay the respondent’s costs of the appeal.

28. WILSON J: The exploitation of this State’s mineral resources is regulated by the Mineral Resources Act 1989 (Qld) (“MRA”). The power to grant a mining lease rests with the Governor in Council,³ and, as Jerrard JA has described, Part 7 of the Act contains detailed provisions about the steps to be followed through the application, consideration and recommendation phases which precede the grant of a mining lease.

29. In summary those steps under the MRA consist of –

-the lodging of an application for a mining lease with the district mining registrar;⁴

- the mining registrar’s giving a copy of the application to the administering authority under the Environmental Protection Act 1994 (Qld) (“EPA”);⁵

-notice by the applicant to affected landowners;⁶

- the mining registrar’s fixing a last day for lodging objections, giving the applicant a certificate of public notice and giving the administering authority under the EPA a copy of the certificate;⁷

- public notification by the applicant;⁸

- the mining registrar’s referring the application and any objections to the Land and Resources Tribunal;⁹

- the Tribunal’s hearing the application and making a recommendation to the minister administering the MRA that the mining lease be granted or rejected in whole or in part;¹⁰

- the minister’s considering the recommendation and recommending to the Governor in Council that the mining lease be granted, or rejecting the application, or directing the Tribunal to hold a hearing or further hearing into the application generally or limited to specified matters.¹¹

30. The applicant must also obtain an environmental authority (mining activities) under the EPA. The process for doing so begins with an application made to the mining registrar,¹² and as part of the process the applicant must submit an environmental management plan (formerly an Environmental Management Overview Strategy or “EMOS”).¹³ Upon the issue of a draft environmental authority, the applicant must give public notice of the application simultaneously or together with and in the same way as the certificate of public notice for the relevant mining lease application under the MRA s 252B.¹⁴ There is then an objection period which must end on the last objection day under the MRA.¹⁵ If there is a current objection, the administering authority must refer the application to the Land and Resources Tribunal for an objections decision.¹⁶ The objections decision made by the Tribunal must be a recommendation to the minister administering the MRA,¹⁷ from whom the minister administering the EPA then seeks advice.¹⁸ The decision whether to grant the environmental authority rests with the minister administering the EPA.¹⁹

31. On 17 September 2003²⁰ the respondent Kokstad Mining Pty Ltd lodged an application for a mining lease over 96 hectares of land about 20 kilometres north-east of Roma.²¹ It proposed to extract salts and soda from ground water pumped from aquifers. The surface area extended over part of properties owned by the appellant Trevor James Lee, Robert Hallett Warrian and Sharon S E Wraight respectively. That it did so was identified in part 10 of the application form and in figures 1 and 2 attached to the application (and referred to in part 28 of the form).

32. In answer to part 6A as to why the surface area was required, the respondent said –

“evaporation ponds < 10 ha but exact locations not known at present but will be within lease.”

In fact the proposal was to locate the evaporation ponds on the appellant’s land, as appeared from the EMOS submitted in support of the application for an environmental authority.²²

33. The notice and public notification requirements under the MRA were duly complied with, but for some unexplained reason the application did not come to the appellant’s attention. No objection was received before the last objection day (which was 9 December 2004), and on 15 December 2004 the mining registrar referred the application to the Land and Resources Tribunal for hearing.²³ On 7 February 2005 the Tribunal constituted by Windridge MR exercised its discretion to dispense with a hearing in the circumstances²⁴ and recommended to the Minister for Natural Resources and Mines that a mining lease be granted over the whole of the application area for the purpose and term sought by the respondent.²⁵

34. The appellant made an application to the Tribunal to set aside the mining referee’s decision (that is, the recommendation of the Tribunal constituted by Windridge MR on 7 February 2005), and on 6 December 2005 the Tribunal constituted by Koppenol P made orders –

(a)setting aside the earlier decision; and

(b)giving the appellant until 23 December 2005 to lodge an objection to the mining lease.²⁶

On the hearing of this appeal it was common ground that the orders of 6 December 2005 were made without jurisdiction, as Koppenol P himself acknowledged in the later decision of Australian Finegrain Marble Pty Ltd v Kagara Ltd.²⁷

35. However, there was no appeal against those orders. The appellant lodged an objection on 23 December 2005, and several interlocutory hearings took place in the Tribunal.

36. In about May 2006 the respondent decided to make changes to the mining project – in particular to move the position of the proposed bore and other surface operations from the appellant’s property to an adjacent property.²⁸

37. On 10 May 2006 an environmental authority under the EPA was issued.²⁹

38. By letter dated 26 May 2006 the respondent gave the mining registrar notice that it was abandoning its application in respect of part of the surface area.³⁰ Attached to the letter was “an amended application”, in relation to which the respondent said –

“Please note that this new application form is not to replace the original application. It has merely been completed for ease of describing the area which is to remain after the partial abandonment.”

The amended application was not signed. Of present significance –

(a) it still contained the words “Evaporation ponds < 10 ha but exact locations not known at present but will be within lease”;

(b) in part 10, against the appellant’s land the box indicating that none of the surface area of that land would be required was ticked; and

(c) in figure 2 (identifying the lands affected), the appellant’s land was no longer hatched.

39. The respondent applied to amend the environmental authority to remove the surface activities from the appellant’s land and place them on Mr Warrian’s land.³¹

40. Several applications in relation to the mining lease application were filed in the Tribunal by the appellant, the respondent and Mr Warrian. On 31 August 2006 the Tribunal constituted by Smith DP ordered that a number of questions be answered by the Tribunal as preliminary questions. They were answered by the Tribunal constituted by Smith DP on 23 October 2006, and it is against those answers that the present appeal has been brought.

41. The preliminary questions and the Tribunal’s answers to them really fall into two categories – those relating to whether the Tribunal has jurisdiction to extend the time for lodging an objection to a mining lease application (questions a and b), and those relating to the consequences of the respondent’s having abandoned its application in respect of part of the surface area (questions c and d).

Power to extend time for objection?

42. These were the questions and the Tribunal’s answers to them –

“a. Does the Tribunal have any jurisdiction or power:

i To extend the time for Mr Warrian to lodge an objection to Kokstad’s application for a mining lease in its original or current form (‘Kokstad’s application’) beyond the date fixed by the mining registrar as ‘the last objection day’ under s 252A of Mineral Resources Act 1989 (‘MRA’)?

ANSWER: ‘No’

ii To order that Mr Warrian may lodge an objection to Kokstad’s application for a mining lease after the last objection day?

ANSWER: ‘No’

iii To hear objections or evidence in relation to any purported objection lodged by Mr Warrian or Mr Lee after the last objection day?

ANSWER: ‘No’

iv To allow an amendment of the purported objection lodged by Mr Lee or of any purported objection lodged by Mr Warrian?

ANSWER: ‘No’

b. Does the Order of President Koppenol of 6 December 2005:

i purport to authorise the Tribunal to hear an objection by Mr Lee, or evidence in relation to Mr Lee’s purported objection, even though Mr Lee’s purported objection lodged within the time specified in that Order was lodged outside ‘the last objection day’ under s 252A?

ANSWER: ‘In so far as the order of President Koppenol so purports, it is beyond jurisdiction’

ii authorise the Tribunal to hear an objection by Mr Lee, or evidence in relation to Mr Lee’s purported objection, even though Mr Lee’s purported objection lodged within the time specified in that Order was lodged outside ‘the last objection day’ under s 252A?’

ANSWER: ‘No’”

43. Mr Warrian is not a party to the appeal to this Court.

44. As I have said, it was common ground that the orders of the Tribunal constituted by Koppenol P were made without jurisdiction. Were they of any effect, given that there was no appeal against them?

45. The Tribunal was established by the Land and Resources Tribunal Act 1999 (Qld) (“LRTA”).³² It has the jurisdiction conferred on it by that Act and other Acts.³³ Its jurisdiction to hear an application for the grant of a mining lease is conferred by the MRA.³⁴

46. The Tribunal is a statutory tribunal with limited jurisdiction.³⁵ By s 54(1) of the LRTA –

“54. (1) The tribunal is a court of record.”

It is not a court: its function is to make recommendations to the Executive,³⁶ not to adjudicate upon disputes. Section 54(1) means only that its proceedings can be proved simply by producing its record.³⁷ If it acts without jurisdiction, its orders are of no effect. A superior court of record, by contrast, is a court of general jurisdiction whose orders must be obeyed unless they are overturned on appeal, because it will be presumed to have acted within its jurisdiction.³⁸

[47] Section 268 of the MRA provides (so far as presently relevant) –

“268 Hearing of application for grant of mining lease

(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.”

In ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation³⁹ the Court of Appeal held that s 268(3) is to be construed as qualifying s 268(2), and that the Tribunal is thus precluded from hearing submissions or evidence from an objector to the grant of a mining lease on a matter not raised in a duly lodged objection. A duly lodged objection is one lodged before the last objection day.⁴⁰

[48] The appellant’s objection was not lodged before the last objection day; indeed it was not made until after the Tribunal was functus officio, having fulfilled its statutory function of making a recommendation to the minister. The Tribunal had no jurisdiction to entertain it. The orders made by the Tribunal constituted by Koppenol P on 6 December 2005 were of no effect. They did not give rise to a res judicata estoppel.⁴¹

[49] It follows that there was no error in the answers of the Tribunal constituted by Smith DP to questions a and b.

The consequences of abandonment of application in respect of part of the land

[50] These were the questions and the Tribunal’s answers to them:

“c What are the consequences with respect to the proceedings currently before the Tribunal of:

i the Applicant’s having abandoned its original application, in respect of part of the land to which the application relates, pursuant to s 307 of the MRA?

ANSWER: ‘The application proceeds in its amended form from the point that the original application had reached’

and

ii the Applicant’s having amended the method of operation contemplated in its original application, as stated in paragraph 13 of the Affidavit of David Bedford filed 14 August 2006?

ANSWER: ‘The application and amended application use identical words to describe the proposed mining, meaning that the application has not been so amended’

d. In particular, do either or both of the circumstances mentioned in question c. have the effect that the provisions in Part 7 of the MRA must be applied in respect of the amended application as if it were a new application?

ANSWER: ‘No’”

[51] Section 307 of the MRA provides:

“307 Abandonment of application for the grant of a mining lease

(1) The applicant for a mining lease may, at any time before the grant of the mining lease, by notice in writing to the mining registrar abandon the application in respect of the whole or part of the land to which the application relates.

(2) The abandonment shall take effect on the day next following its receipt by the mining registrar.

(3) The applicant for the grant of a mining lease who gives a notice referred to in subsection (1) to the mining registrar shall forthwith serve a copy of that notice on all other persons upon whom the applicant was required under this Act to give a copy of the certificate of public notice for the mining lease.

(4) Where an application for the grant of a mining lease is abandoned in respect of part only of the land to which the application relates, the application shall be amended to show the area in respect of which the mining lease application is to remain in force in the same manner as is required for an original application and the amended application shall proceed in respect of that area in accordance with this part.

(5) The mining registrar must, within 5 business days after an abandonment or partial abandonment, give written notice of it to the EPA administering authority.”

[52] Counsel for the appellant submitted that when the respondent abandoned part of the surface area of the lease, the application process had to begin afresh – thereby resetting the time in which objections could be validly lodged.⁴²

[53] An application for a mining lease must be accompanied by a statement, acceptable to the mining registrar, outlining the mining program proposed.⁴³ The mining program filed with the application on 17 September 2003 described in detail how the evaporation ponds would be constructed and used, but did not state their location.⁴⁴ Counsel for the appellant argued that moving the surface operations from the appellant’s land to Mr Warrian’s required a significant change to the mining program. This was not so – if only because the location of the evaporation ponds was not stated in the mining program. (It was in the EMOS submitted in support of the application for an environmental authority.)

[54] Because s 307(4) draws a distinction between the original application and the amended application, and because the words “shall proceed” imply a continuation of the process from the point reached rather than a recommencement, I do not think that the Legislature intended the amendment to restart the application process. Had it so intended, it could easily have said so expressly. There is no substance in the point made in oral argument that there would be no point in the notice requirement in s 307(3) unless the abandonment gave the person to whom notice was given some rights including the right to object.⁴⁵ It simply put the person on notice that, insofar as he or she was otherwise still entitled to do so, it was necessary to oppose the application.

[55] In my opinion, therefore, the Tribunal constituted by Smith DP did not err in its answers to questions c and d.

The minister’s powers

[56] On 7 February 2005 the Tribunal recommended that a mining lease be granted over the whole of the original application area. The minister had not dealt with that recommendation pursuant to s 271 of the MRA at the time of the partial abandonment. He has still not done so. It is open to him to recommend to the Governor in Council that a mining lease be granted in respect of the land to which the amended application relates, to reject the application, or to direct the Tribunal to hold a further hearing.⁴⁶ While there is no duly lodged objection by the appellant which the Tribunal could entertain,⁴⁷ it may be that the minister could direct that it hold a hearing into any adverse environmental impact caused by the mining operations.⁴⁸ I do not express any concluded view on this point, as it was not within the scope of this appeal.

The appellant may have other rights

[57] The appellant remains concerned that the presence of evaporation ponds on Mr Warrian’s land, which is adjacent to his, may have adverse consequences for his land.⁴⁹ The EPA deals with the circumstances in which a landholder is entitled to be heard in relation to changes to an environmental authority.⁵⁰

Conclusion

[58] I would make the following orders:

(i) declare that the orders made by the Land and Resources Tribunal constituted by Koppenol P on 6 December 2005 having been made without jurisdiction were of no effect;

(ii) that the appeal be dismissed; and

(iii) that the appellant pay the respondent’s costs of the appeal.

[59] DOUGLAS J: In my view the method of operation of the proposed mining lease was not amended when the applicant abandoned its application in respect of part of the land. Section 307(4) of the Mineral Resources Act 1989 (Qld) prescribes the consequences, namely, that the amended application proceeds in respect of the remaining area. Accordingly, I agree with the reasons of Wilson J and the orders proposed by her Honour.

Footnotes

1. Section 41(2) of the LRT Act required that the decision on every question before the LRT be made by the Deputy President. ↩

2. At [23] of the reasons for judgment. ↩

3. MRA, s 234. ↩

4. MRA, s 245. ↩

5. MRA, s 245(4). ↩

6. MRA, s 252. ↩

7. MRA, s 252A. ↩

8. MRA, s 252B. ↩

9. MRA, s 265. ↩

10. MRA, s 269; note that s 270 allows the Tribunal to dispense with a full hearing if certain conditions are met, including where there are no duly lodged objections. ↩

11. MRA, s 271. ↩

12. EPA, s 154. ↩

13. EPA, s 203. ↩

14. EPA, ss 211-212. ↩