In brief

The case of Lonergan v Stilgoe & Ors [2020] QSC 86 concerned an application to the Supreme Court of Queensland for the statutory review of a decision by the Land Court to recommend that a mining lease be granted, and an environmental authority be issued, over property in North Queensland. The application was filed by the current owners of the property (Landowners), who objected to the grant of the mining lease, and the conditions imposed in the draft environmental authority. 

The Supreme Court dismissed the application and held as follows:

  • The evidence demonstrated that there was a factual basis for the Land Court to be satisfied that the requirements of section 252A of the Mineral Resources Act 1989 (Qld) (MRA) had been complied with.

  • Section 252B of the MRA was not a jurisdictional fact, such that a recommendation to grant a mining lease would be invalid if the section was not complied with. 

  • The Land Court did not err in failing to take into account a relevant consideration, being evidence adduced by an expert about the impact of the mining lease on koala habitat.

  • The Land Court did not breach the rules of natural justice by failing to put the Landowners on notice that the Member would not consider the evidence relating to koala habitat. 

Background

A small scale gold miner had been mining gold at Rolfe Creek under two mining leases negotiated with the previous owners of the property. He applied for the grant of a new mining lease over the property and an environmental authority. The Landowners objected to the new mining lease and the conditions recommended in the draft environmental authority. 

The objections proceeded to a hearing before a Member of the Land Court, who recommended that the mining lease be granted, and that the environmental authority be issued. The Landowners applied to the Supreme Court for a statutory order of review of the decision by the Member of the Land Court. 

The following issues were at the centre of the hearing of the application before the Supreme Court:

  • Whether compliance with section 252A and section 252B of the MRA were each a jurisdictional fact, such that a recommendation to grant a mining lease would be ineffective unless the requirements of the relevant section were complied with. 

  • Whether the Member failed to take into account a relevant consideration, namely the impact of the proposed mining lease on the local environment in relation to koala habitat. 

Was compliance with sections 252A and 252B of the Mineral Resources Act 1989 jurisdictional facts?

Section 252A of the MRA provides that the applicant for a proposed mining lease is to give certain documents and information listed in that section, to each “affected person”. An affected person includes an owner of the land the subject of the proposed mining lease. 

Section 252B of the MRA provides that the applicant for a proposed mining lease is to give the chief executive a statutory declaration that the applicant has complied with section 252A within a stated period. 

There was some confusion in the Landowners’ submissions as to whether they asserted non-compliance with section 252A, 252B, or both. Despite this confusion, for completeness, the Supreme Court dealt with both. 

The Supreme Court was satisfied that there was a factual basis for the Land Court’s conclusion that the applicant had satisfied the requirements of section 252A of the MRA, although it noted that the evidentiary position with respect to compliance with section 252B was deficient. In any event, the key issue to be determined was whether compliance with those sections were a “jurisdictional fact”, such that their non-compliance would invalidate the decision to grant the mining lease. 

In considering that question, the Court had regard to the High Court decision in Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510. That decision concerned non-compliance with section 74(1)(ca)(ii) of the Mining Act 1978 (WA), which requires an application for a mining lease to be accompanied by a mineralisation report prepared by a qualified person. The High Court held that compliance with section 74(1)(ca)(ii) is an essential preliminary step to the exercise of the power conferred on the Minister to grant a mining lease. The Supreme Court noted the following in respect of that High Court decision (at [48]):

Forrest & Forrest … requires a close consideration of the language of the relevant provision, in context, including its objects and purpose. This includes consideration of the consequences of non-compliance on the administration of the Act and the interest of other parties. Having had regard to the language of the relevant provision and its purpose, the ultimate question is whether it was a purpose of the legislation that an act done in breach of a provision should be invalid.

The Supreme Court concluded that it was unnecessary to resolve the issue of whether compliance with section 252A of the MRA was a “jurisdictional fact”, because the evidence before the Land Court indicated that section 252A had been complied with. However, the Supreme Court noted the following (per curiam, at [50]):

A substantial argument may be made that the purpose of the statutory scheme would be advanced by holding that an exercise of decision-making power by the Land Court affected by a failure to comply with s 252A is invalid … the public interest is not served by allowing non-compliance with a legislative regime that requires certain documents and information to be given to an affected person and that the provision of the informed views of those who object to an application is apt to improve the quality of decision-making by those charged with the administration of the Act.

With respect to whether compliance with section 252B of the MRA was a “jurisdictional fact”, the Supreme Court concluded that it was not. The Supreme Court noted that while section 252A imposed important requirements which serve the public interest and protect the interests of affected parties, it would be an “odd and apparently unintended consequence” for the Land Court’s jurisdiction to be invalidated in a case where there was no dispute about compliance with section 252A.

Did the Land Court fail to take into account a relevant consideration?

The Landowners’ objections to the application for the mining lease contended that the conditions in the draft Environmental Authority were inadequate and that any Environmental Authority ought to contain a condition that the leased area be fully fenced.

During the course of the Landowners' closing submissions before the Land Court, it was also asserted that the proposed mining activities would have a detrimental impact on koala habitat in the leased area. The Landowners had not included this as a ground of objection. 

The Land Court concluded that it was unable to consider the evidence in relation to koala habitat as a result of section 268(3) of the MRA, which relevantly provides that:

The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.

The Landowners asserted that the Land Court erred in failing to consider the impact on koala habitat. The Landowners also asserted that the Member breached the rules of natural justice by failing to advise them that she would not consider the evidence relating to koala habitat. 

On both counts, the Supreme Court rejected the Landowners’ assertions. The Supreme Court held that section 268(3) of the MRA precluded the Land Court from entertaining an objection or any evidence in relation to the issue of koala habitat. Additionally, the Supreme Court stated that the Landowners did not explain how the Land Court raising the issue with their legal representatives before the decision was made could have made a difference. 

Conclusion

The Supreme Court ultimately held that the Landowners had not established their grounds for judicial review, and the application was dismissed. 

Future applicants for mining leases ought to bear in mind the importance of ensuring compliance with the notice requirements under section 252A of the MRA. Although the Supreme Court did not come to a definitive conclusion on the issue of whether compliance with section 252A is a “jurisdictional fact”, its comments emphasise the importance of this section in serving the public interest, and the interests of affected persons.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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