Century Zinc Project Act 1997

The Act introduces several concepts not found in general land acquisition or mining legislation. The first is the concept of "taking" of native title and easements under section 5. Native title in schedule 1, part 1, items 1 to 6 is taken automatically upon commencement; for item 7 and for native title and easements in part 2, taking occurs by proclamation. Critically, section 5(7) provides that this section has effect despite any other Act, giving it paramountcy. The term "non-extinguishment principle" is central: section 18(1)(b) states that this principle under the Native Title Act 1993 (Cth) applies to anything done under this Act. This means that while native title is taken or impaired, it is not permanently extinguished and may revive if the relevant interest or act ceases.

The Act also creates a framework for "miscellaneous transport infrastructure". Section 12 declares that the easement taken under section 5(3)(b) is taken to be a public utility easement under the Land Act 1994, and if taken under section 5, it is deemed to have been acquired by the chief executive for the State under the Transport Planning and Coordination Act 1994. A licence under the Transport Infrastructure Act 1994 in relation to that infrastructure has the effect of a contract under seal between the licensee and any person with an interest in the affected land, and the licensee may enforce rights granted under the licence against that person.

The "call-in" power in part 4 is a significant concept. The Minister may call in a development application for the Gregory outstation proposal whether or not the council has decided it. Section 16 requires the Minister to give written notice stating reasons to the council and to other relevant persons. Section 17 specifies the effects: if called in before council decision, the Minister continues the process from that point and has council's powers; if after council decision, the process starts again from a point the Minister decides. Appeals are rendered of no further effect, and no appeal lies against the Minister's decision under the relevant law.

"Responsible entity" is defined in section 13(7) for the purpose of crossing land (reserves, roads, watercourses). For non-tidal watercourses it is the chief executive administering the Water Act 2000; for tidal watercourses, the chief executive administering the Transport Infrastructure Act 1994; for reserves, the trustee; for roads, the local government or if a State controlled road, the relevant chief executive; otherwise, the chief executive administering the Land Act 1994.

The cancellation and regrant of leases in part 3 introduces the concept of "former lease" and "new lease" for the term lease and mining leases. The new leases are granted on the same terms but with a new term starting on commencement, and are granted in full satisfaction of any rights arising out of the former leases. Section 10(3) specifically disapplies section 318 of the Mineral Resources Act 1989 to the former leases only because of their cancellation, which would otherwise have triggered certain consequences.

The Act directly affects a defined set of persons and entities. The primary beneficiary is Century Zinc Limited, the company named in the purpose section and the lessee under the cancelled and regranted leases. The company is affected by the cancellation of its existing leases (term lease 205674 and mining leases 90045 and 90058) and the grant of new leases on the same terms but with fresh commencement dates. It is also the entity that will construct and operate the mine, slurry pipeline, and port facilities under the easement and licences.

Native title holders are directly affected. Section 5 takes native title in certain lands, vesting it in the State. However, section 18 states that the Act does not extinguish native title and that the non-extinguishment principle applies, meaning that native title is not permanently lost but is suspended for the duration of the interests created. The Bidunggu Aboriginal Land Trust is specifically mentioned in section 3(e) in relation to development on land it holds and in part 4 as the applicant for the Gregory outstation proposal.

The State of Queensland is affected as the entity in which taken interests vest (section 5(6)), and as the constructing authority for compensation purposes (section 7(a)). The Governor in Council has powers under section 11(4) to decide compensation conditions and under section 21 to make regulations.

The Ports Corporation of Queensland has land vested in it under section 11, and that land is taken to be strategic port land under the Transport Infrastructure Act 1994. The Far North Queensland Electricity Board (and later the Far North Queensland Electricity Corporation Ltd) is affected by the potential resumption of a lease and is entitled to compensation from the Ports Corporation (section 11(3)-(5)).

The Burke Shire Council is affected by part 4: the Minister may call in a development application over which the council would ordinarily have decision-making authority. The council must provide all reasonable assistance and give up relevant material.

Various other "responsible entities" are affected by section 13: trustees of reserves, local governments managing roads, and chief executives of departments administering water and transport legislation. They must give consent to the exercise of rights under the easement for crossing their land, failing which the licensee may apply to the Premier for consent.

The Acquisition of Land Act 1967 compensation regime applies to persons whose interests are taken, including lessees (section 7(b) extends the definition of owner to include lessees of affected leases). These persons have a right to claim compensation but subject to the agreement and the Native Title (Queensland) Act 1993 (section 6(4)).

The Act imposes duties and confers rights on various parties. The primary right of a person whose interest in land is taken is the right to claim compensation under the Acquisition of Land Act 1967, sections 12(5A) and (5B) and part 4 (section 6(3)). This right is subject to the agreement and the Native Title (Queensland) Act 1993 (section 6(4)). The State is the constructing authority under part 4 of the Acquisition of Land Act (section 7(a)), meaning it is the entity against which compensation claims are made. The compensation claimant must refer the claim to the Land Court by filing copies of the claim given to the State and a statement identifying the provisions of this Act or any instrument that effected the taking (section 7(c)).

The licensee under the Transport Infrastructure Act 1994 has important rights under section 12(4). A licence in relation to miscellaneous transport infrastructure in the easement has the effect of a contract under seal between the licensee and any person having an interest in land affected by the easement. The licensee may enforce rights granted under the licence against that person. This creates a legally enforceable right without requiring a separate deed.

For the entity responsible for land (reserves, roads, watercourses) that is crossed by the easement, section 13(4) imposes an obligation to give consent to the exercise or performance of the rights and obligations under the easement, but only if the licensee requests it. If the responsible entity fails to give consent, the licensee may apply to the Premier for consent, and the Premier's consent is taken to be the consent of the responsible entity (sections 13(5)-(6)). This creates a duty on responsible entities to respond, but the Act does not specify a time frame.

Under part 4, the Burke Shire Council has a duty under section 17(4) to provide the Minister with all reasonable assistance required to decide the development application, including all relevant material the council had before the call-in and any material received after. The Minister has the right to call in the application (section 15), and upon doing so, the Minister has the powers of the council (section 17(1)(b)). The applicant (the Bidunggu Aboriginal Land Trust) and any concurrence agency must receive a copy of the call-in notice (section 16(3)). An entity whose concurrence is required may give advice about the application after call-in (section 17(3)(a)).

Native title holders have the right under section 18 to have the non-extinguishment principle applied, meaning that native title is not permanently extinguished by the Act. This is a protective right, though it does not prevent the temporary impairment of native title during the operation of the interests created.

The Century Zinc Project Act 1997 does not itself create criminal offences or civil penalties. Enforcement mechanisms are indirect and rely on other legislation and executive powers. The primary enforcement of the compulsory acquisition provisions is through the compensation regime under the Acquisition of Land Act 1967. If the State does not pay compensation, a claimant may refer the claim to the Land Court for determination. The State, as constructing authority, can be compelled to pay compensation determined by the Land Court through the ordinary processes of that court.

The easement and related rights are enforceable through contract-like mechanisms. Under section 12(4), a licence under the Transport Infrastructure Act 1994 has the effect of a contract under seal between the licensee and any person with an interest in the affected land. This means the licensee can enforce the rights granted under the licence as if they were contractual rights, including seeking injunctive relief or damages for breach. The licence can be enforced against the landholder.

For the crossing of land under section 13, if a responsible entity refuses to consent to the exercise of easement rights, the licensee has an administrative remedy: applying to the Premier for consent. The Premier's consent overrides the entity's refusal and is taken for all purposes to be that entity's consent (section 13(6)). There is no appeal from the Premier's decision, creating an effective enforcement mechanism for the licensee.

The ministerial call-in power under part 4 has its own enforcement features. If the Burke Shire Council fails to provide reasonable assistance, there is no express penalty, but the Minister's powers are broad. The ouster of appeal rights under section 17(3)(c) is a significant enforcement feature: no person may appeal against the Minister's decision under the relevant law. This prevents judicial review of the merits of the decision, though it likely does not oust judicial review for jurisdictional error. The Minister's decision is taken to be the decision of the council for all purposes other than appeal (section 17(6)).

The Governor in Council may make regulations under section 21, which could create penalties for non-compliance. However, no such regulations are described in the text. The Act's effectiveness depends on the underlying legislation it references.

The Act expressly modifies, overrides, and interacts with numerous other Queensland and Commonwealth statutes. Section 5(7) is the most potent interaction: "This section has effect despite any other Act." This gives the compulsory taking provisions supremacy over any inconsistent statutory provisions. The reference to the Native Title Act 1993 (Cth) is pervasive. Section 3 states the Act's purpose is to facilitate an agreement under the right to negotiate provisions of that Commonwealth Act. Section 18(1)(b) applies the non-extinguishment principle under the Native Title Act 1993 (Cth) to anything done under this Act. Section 20 requires each interest granted by this Act to include the statement in schedule 4, which presumably preserves native title rights. Section 19 provides that for the purposes of the Native Title (Queensland) Act 1993, the taking of an interest under section 5 is taken to be an acquisition of land under a State Compulsory Acquisition Act, thereby triggering the native title compensation and procedural provisions of that Act.

The Acquisition of Land Act 1967 is applied with modifications. Section 6(2) lists certain provisions of that Act (in schedule 2) that do not apply to the resumption under section 5. Section 6(3) preserves the compensation rights under specific sections and part 4. Section 7 modifies the application of part 4 of the Acquisition of Land Act by designating the State as the constructing authority, extending the definition of owner to include lessees, and prescribing the compensation claim referral procedure.

The Land Act 1994 is relevant to the leases and easements. Section 9(3) provides that the new term lease is taken to have been granted under the Land Act 1994. Section 12(2) deems the easement taken under section 5(3)(b) to be a public utility easement under the Land Act 1994. Section 13(7)(e) designates the chief executive administering the Land Act 1994 as the responsible entity for land not otherwise categorised.

The Mineral Resources Act 1989 interacts with the mining lease cancellation and regrant. Section 10(1) cancels mining leases 90045 and 90058 granted under that Act. Section 10(3) disapplies section 318 of the Mineral Resources Act 1989 to the former leases only because of their cancellation under subsection (1). Section 10(4) provides that each new lease is taken to have been granted under the Mineral Resources Act 1989.

Transport-related statutes are engaged. Section 11(1) deems land vested in the Ports Corporation to be strategic port land under the Transport Infrastructure Act 1994, section 286. Section 12(3) deems the easement to have been acquired under the Transport Planning and Coordination Act 1994. Section 12(4) creates rights under a licence under the Transport Infrastructure Act 1994. Section 13 refers to chief executives administering the Transport Infrastructure Act 1994 and the Water Act 2000.

Planning legislation interacts through the transitional provisions. Part 7 (section 22) continues the application of part 4 as in force before the commencement of the Sustainable Planning Act 2009 for development applications made under the repealed Integrated Planning Act 1997. Part 8 (section 23) continues the application of former part 4 for existing development applications under the repealed Sustainable Planning Act 2009 to which the Planning Act 2016, section 288 applies.

The Century Zinc Project Act 1997 is a relatively stable piece of legislation, with amendments primarily related to changes in Queensland's planning framework and minor administrative updates. The Act itself was passed in 1997 and commenced on a day to be fixed by proclamation (section 2(1)), with the Acts Interpretation Act 1954, section 15DA (which deals with the meaning of "commencement") expressly disapplied (section 2(2)).

An amendment to section 11 is noted in the text: "s 11 amd 1994 No. 8 s 491 (3) sch 5 (amd 2003 No. 54 ss 34, 39)". This appears to be a drafting note rather than the body of the Act. It suggests that section 11 was amended by an Act numbered 1994 No. 8 (likely the Transport Infrastructure Act 1994 amendment) and subsequently amended by 2003 No. 54. This is consistent with the section's reference to the Transport Infrastructure Act 1994 and changes to port corporation arrangements.

Section 13 was amended by the Water Act 2000, as noted: "s 13 amd 2000 No. 34 s 1145 sch 3". This inserted the reference to the Water Act 2000 in the definition of responsible entity in section 13(7)(a). Before 2000, the Act would have referenced the predecessor water legislation.

Section 21 was amended in 2002: "s 21 amd 2002 No. 71 s 4". The nature of this amendment is not specified, but it concerns the regulation-making power.

Part 7 was inserted by the Sustainable Planning Act 2009: "s 22 ins 2009 No. 36 s 872 sch 2". This transitional provision preserves the operation of part 4 for development applications made under the repealed Integrated Planning Act 1997 following the commencement of the Sustainable Planning Act 2009.

Part 8 was inserted by the Planning (Consequential) and Other Legislation Amendment Act 2016: "s 23 ins 2016 No. 27 s 126". This preserves former part 4 for existing development applications under the repealed Sustainable Planning Act 2009.

The Act has not been repealed or substantially amended otherwise. Its core provisions (sections 5-7 on taking, sections 9-10 on leases, sections 15-17 on call-in, and sections 18-20 on native title) remain as originally enacted.

The Act itself has not been the subject of reported litigation disclosed in its text. However, the Act was directly shaped by two High Court decisions that are explicitly referenced in section 8. The first is North Ganalanja Aboriginal Corporation & Anor v. State of Queensland & Ors (1996) 185 CLR 595, and the second is The Wik Peoples v. State of Queensland & Ors (1996) 187 CLR 1. In Wik, the High Court held that pastoral leases did not necessarily extinguish native title, and that native title could coexist with such leases. This decision cast doubt on the validity of many leases issued over land that might be subject to native title, including mining leases in Queensland. The North Ganalanja case further clarified issues around the interaction of native title with statutory grants.

The purpose of sections 9 and 10, as stated in section 8(1), is to remove any doubt about the validity of the leases mentioned because of the native title Acts and in light of these High Court decisions. The Act effectively validates the cancelled and regranted term lease and mining leases by retrospectively creating new leases with fresh commencement dates. This was a legislative response to the legal uncertainty created by Wik and North Ganalanja, ensuring that the Century Zinc project could proceed without litigation over the validity of its tenure.

Given that the Act creates compulsory acquisition powers and overrides other legislation (section 5(7)), there is potential for constitutional challenges under the Commonwealth Constitution on the basis of section 51(xxxi) (acquisition of property on just terms), but no such challenge is recorded in the source text. The Act's careful preservation of native title rights through the non-extinguishment principle (section 18) and the application of the Native Title Act's compensation framework likely mitigated the risk of successful challenge.

The transitional provisions (parts 7 and 8) may have given rise to litigation about the interaction between the Gregory outstation call-in power and successive planning Acts, but again, no cases are referenced. Practitioners should be aware that the Act operates largely outside the general planning and acquisition framework, and its specific nature means litigation is likely to turn on the interpretation of its unique provisions, such as the effect of the non-extinguishment principle in section 18 on the seemingly absolute taking in section 5.

Several provisions in the Act contain traps for the unwary practitioner. The most significant is the apparent conflict between sections 5 and 18. Section 5 takes native title and vests it in the State, with subsection (7) providing that the section has effect despite any other Act. Section 18(1)(a) states Parliament's intention that this Act does not extinguish native title. The reconciliation lies in section 18(1)(b), which applies the non-extinguishment principle under the Native Title Act 1993 (Cth). Under that principle, native title is not permanently extinguished by the grant of an inconsistent interest; it is suspended for the duration of that interest. However, a person reading section 5 alone might conclude that native title is wholly taken and extinguished. The statement in schedule 4 (referred to in section 20) must be included in each interest granted, and that statement likely preserves native title rights, but failure to include it could raise validity questions.

Section 5(3) provides that native title and an easement in land described in schedule 1, part 2 may be taken by proclamation. Such a proclamation is expressly stated not to be subordinate legislation (section 5(5)). This means it is not subject to the usual requirements for tabling, disallowance, or publication that apply to statutory instruments under the Statutory Instruments Act 1992. Practitioners must check whether a proclamation has been made, and because it is not subordinate legislation, it may not be as readily searchable in legislative databases.

Section 9(5) states that the new lease is granted "in full satisfaction of any rights arising out of or in relation to the former lease." This language could extinguish any claims a lessee might have had against the State regarding the former lease, such as claims for compensation for improvements or for breaches of the former lease. Similarly, section 10(6) contains the same phrase for the mining leases.

Section 10(3) provides that the Mineral Resources Act 1989, section 318 does not apply to the former leases only because of their cancellation under subsection (1). Section 318 of the Mineral Resources Act 1989 deals with the effect of cancellation of mining leases, including the lessee's entitlement to compensation for improvements. By disapplying this section, the Act ensures that no compensation is payable solely due to the cancellation. However, the subsection says "only because of their cancellation", meaning other reasons for compensation under other provisions may survive.

The call-in provisions in part 4 contain an ouster clause: section 17(3)(c) states that a person may not appeal against the decision of the Minister under the Act or law under which the application is made. This is a strong privative clause, but it is likely subject to judicial review for jurisdictional error. Note that the ouster applies to the "relevant law", which is the Act under which the development application was made, not the general administrative law jurisdiction of the Supreme Court.

Section 13(4) requires the responsible entity to give consent before rights and obligations under the easement can be exercised or performed. If the entity fails to give consent, the licensee may apply to the Premier. There is no time limit for the responsible entity to respond, potentially causing delay. The Premier's override is discretionary.

The transitional provisions are nuanced. Section 22 (part 7) continues the application of part 4 as in force before the commencement of that section for development applications made under the repealed Integrated Planning Act 1997 before commencement. Section 23 (part 8) continues former part 4 for existing development applications under the repealed Sustainable Planning Act 2009. Practitioners dealing with the Gregory outstation proposal must trace which version of part 4 applies based on when the application was made and under which Act.

Compliance with the Century Zinc Project Act 1997 depends on the role of the person or entity. For Century Zinc Limited, the primary obligation is to ensure that the mining and transport infrastructure operations are conducted within the rights granted under the new leases and the easement. The new leases are on the same terms as the former leases (sections 9(3) and 10(4)), so the company must comply with those terms, including any conditions under the Land Act 1994 and the Mineral Resources Act 1989. For the easement, the company (likely as licensee under the Transport Infrastructure Act 1994) must ensure that any exercise of rights over land under section 13 is preceded by obtaining consent from the relevant responsible entity, or if consent is refused, by applying to the Premier for consent. The company should maintain records of consents and licences.

For responsible entities under section 13, compliance involves responding to a request for consent from the licensee. The Act does not specify a time limit, but a failure to respond may lead to an application to the Premier, which could result in an override. Responsible entities should have a process for assessing such requests and determining whether any conditions on consent are appropriate. They should also be aware that the rights under the easement are limited to ensuring construction, operation, and maintenance of miscellaneous transport infrastructure (section 13(2)).

For the Burke Shire Council, compliance under part 4 requires providing the Minister with all reasonable assistance if the Minister calls in a development application for the Gregory outstation proposal. This includes handing over all relevant material the council had before the call-in and any material received afterwards (section 17(4)). The council should also ensure it has procedures for identifying such material promptly.

For persons whose interests are taken under section 5 (including lessees), the path to compliance is through the compensation process. They should first give copies of their compensation claim to the State, then refer the claim to the Land Court by filing those copies together with a statement identifying the provisions of this Act or any instrument that effected the taking (section 7(c)). The claim must be made under the Acquisition of Land Act 1967, sections 12(5A) and (5B) and part 4 (section 6(3)), but subject to the agreement and the Native Title (Queensland) Act 1993 (section 6(4)).

For native title holders, the Act provides that native title is not extinguished but its exercise may be impaired while the interests created by the Act are in effect. Compliance is not active; rather, native title holders should ensure their rights under the Native Title Act 1993 (Cth) and the Native Title (Queensland) Act 1993 are preserved. The statement in schedule 4, which must be included in each interest granted (section 20), is presumed to protect native title interests.

The Ports Corporation of Queensland should ensure it manages the land vested under section 11 in accordance with its status as strategic port land under the Transport Infrastructure Act 1994. If compensation is payable to the Far North Queensland Electricity Board or Corporation, the Governor in Council will decide the amount and conditions (section 11(4)). The Ports Corporation should be prepared to pay that compensation.

General compliance requires awareness that the Act has effect despite any other Act (section 5(7)), so standard procedures under other laws for objections or inquiries regarding compulsory acquisition may not apply. Practitioners should check whether the relevant proclamations under section 5(2) and (3) have been made, and whether any regulations under section 21 are in force. The transitional provisions should be verified to determine which version of part 4 applies to any Gregory outstation development application.