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Strict compliance with s 252B of MR Act not essential for recommendation that a mining lease is granted

By Damian Roe / 19 May 2020
4 min.
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Worthwhile read for: Mining industry practitioners

On 23 April 2020, the Supreme Court of Queensland delivered the judgement Lonergan v Stilgoe & Ors [2020] QSC 86, which involved an application for judicial review of a decision of the Land Court regarding the recommendation for the grant of a mining lease. 

In this matter, the applicant for a mining lease neglected to provide the mining registrar with a declaration that they had publicly notified their mining lease application. The judgement handed down found that this omission did not deprive the Land Court of jurisdiction to recommend the grant of the mining lease.

Background

The Lonergans are the owners of land that underlies an application for a lease to mine gold made by Gerald Skilton. Following receipt of mining lease notice material, the Lonergans objected to the grant of a new mining lease and the conditions of the related environmental authority. These objections were brought before the Land Court, and a recommendation was made to the Minister on 14 June 2019 that the mining lease be granted, with no amendments to the conditions of the environmental authority.

The Lonergans applied for a review of the decision and their initial application sought to set aside the decision and raised a number of matters, with an amended application focusing on the following:

  • that the Land Court could not have been satisfied on the evidence and material available that the declaration made by Mr Skilton under section 252B of the Mineral Resources Act 1989 (Qld) (MRA) was in fact given; and
  • that the Land Court failed to take into account a relevant consideration, which was the impact of the proposed mining lease on the local environment in relation to koala habitats. 

The Supreme Court dismissed the application made by the Lonergans, and in doing so, highlighted a number of key points. 

Key takeaways:

  • A broad objection such as “non-compliance with provisions of the MRA” should be expanded upon, and the Land Court should be directed to specific evidence or submissions on those points.
  • Despite section 252A and 252B of the MRA being considered procedural, they serve the public interest and protect the interests of affected parties, while starting the process for the State to issue exclusive rights to exploit and mine an area.
  • His Honour considered the tests in Forest & Forest and Project Blue Sky and in doing so emphasised the importance of the legislative regime in protecting the public interest by protecting against situations where miners and officers of the executive government can agree to a relaxation of the legislative requirements.  
  •  A declaration under section 252B is not regarded as jurisdictional fact, and the absence of a declaration under this section “does not necessarily deprive the Land Court of jurisdiction to recommend the granting of a mining lease”.  Further, it would be “an odd and apparently unintended consequence” if this were a jurisdiction fact, particularly where there has been no dispute relating to compliance with section 252A of the MRA.
  • His Honour held that non-compliance with procedural provisions such as section 252B “does not necessarily spell invalidity of a recommendation to grant a mining lease or subsequent grant of a mining lease”.
  • The matters raised in a Land Court proceeding about an objection to a mining lease is limited to those matters raised in the objection. For instance, the Lonergans raised the impact on the local environment in their submissions. However they did not raise specific objections in relation to the impact the mining operations would have on the presence of essential koala habitat. His Honour held the Land Court was correct to conclude that they were not required to consider any objection based on evidence in relation to the loss of essential koala habitat.

If you would like further advice on the matters discussed in this article, please contact our Resources and Energy team. 
 

19 May 2020
Authors
Damian Roe
Partner
Damian is a Partner in our leading Resources and Energy practice.
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