Cape Alumina Pty Ltd v Silverback Properties Pty Ltd
[2008] QLC 183
•3 September 2008
LAND COURT OF QUEENSLAND
CITATION: Cape Alumina Pty Ltd v Silverback Properties Pty Ltd [2008] QLC 0183 PARTIES: Cape Alumina Pty Ltd ACN 107817694
(applicant)v
Silverback Properties Pty Ltd ACN 067400088
(respondent)FILE NO: MRAA00079/2008 DIVISION: Land Court of Queensland – General Division PROCEEDING: Application for declarations and injunctive relief and cross application for declarations and injunctive relief DELIVERED ON: 3 September 2008 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS: 1.As regards EPM 14547:
(A) It is declared that the Notice of Entry of 22 May 2007 was validly given pursuant to s. 163 of the Mineral Resources Act 1989 (“the MRA”);
(B) It is declared that the Notices of Renewal of 24 and 27 July 2007 were not validly given pursuant to s. 164 of the MRA and are invalid and of no effect;
(C) The applicant/explorer is restrained from entering the respondent/landholder’s property in reliance on the Notices of Renewal of 24 and 27 July 2007
(D) It is declared that the Notice of Entry of 13 August 2007 was validly given pursuant to s. 163 of the MRA
(E) It is declared that further Notices of Entry may be given pursuant to s. 163 of the MRA in the event that there is no current Notice of Entry or renewal thereof;
(F) Subject to order 1 (C), the respondent/landholder is restrained from any conduct which may inhibit the lawful exercise of the applicant/explorer’s rights of access pursuant to EPM 14547.
2. As regards EPM 15278:
(A) It is declared that the Notice of Entry of 2 October 2007 was validly given pursuant to s. 163 of the MRA;
(B) It is declared that the Notice of Renewal of 14 December 2007 was validly given pursuant to s. 164 of the MRA;
(C) It is declared that further Notices of Entry may be given pursuant to s. 163 of the MRA in the event that there is no current Notice of Entry or renewal thereof;
(D) The respondent/landholder is restrained from any conduct which may inhibit the lawful exercise of the applicant/explorer’s rights of access pursuant to EPM 15278.
3. The respondent/landholder pay 50% of the applicant/explorer’s costs, including reserved costs, in so far as such costs relate to EPM 14547.
4. The respondent/landholder pay 100% of the applicant/explorer’s costs, including reserved costs, in so far as such costs relate to EPM 15278.
CATCHWORDS: MINING – exploration permits – access to land – notice of entry – renewal – right of landholder to refuse access – validity of notices
LEGISLATION – principals of construction – clear and plain intention – purposive approach – historical development of mining regime
PRACTICE AND PROCEDURE – Declarations and Injunctive relief
APPEARANCES: Mr PA Freeburn SC (instructed by Clayton Utz, Lawyers), for the applicant
Mr W Cochrane (instructed by McColm Matsinger, Lawyers), for the respondent
Background
Cape Alumina Pty Ltd (the explorer) seeks various orders against Silverback Properties Pty Ltd (the landholder) relating to the explorer’s conduct of exploration activities on the landholder’s property. The orders sought are as follows:[1]
“(a)a declaration that a Notice of Entry may be given pursuant to s 163 of the MRA by the applicant as holder of EPM 15278 and EPM 14547 and the effect of which is to permit the applicant to enter onto the lands the subject of the exploration permits without further recourse to the respondent;
(b)A declaration that subsequent renewals of a notice of initial entry may be given pursuant to s 164 of the MRA by the applicant as holder of EPM 15278 and EPM 14547 and the effect of which is to permit the applicant to enter onto the lands the subject of the exploration permits without further recourse to the respondent;
(c)An injunction restraining the respondent from any conduct which may inhibit the lawful exercise of the applicant’s rights of access pursuant to EPM 15278 and EPM 14547; and
(d)The respondent pay the applicant’s costs of and incidental to the application.”
[1] Application filed 8 May 2008.
The landholder opposes the explorer’s orders and in response seeks the following orders:[2]
“(a)a declaration that the Applicant as holder of EPM15278 and EPM14547 is not entitled to deliver further Notices of Entry pursuant to Section 163 of the Mineral Resources Act;
(b)a declaration that the Applicant is not entitled to enter on the lands the subject of the expiration permits without further recourse to the Respondent;
(c)a declaration that subsequent renewals of Notices of Initial Entry given after 31 May 2007 pursuant to Section 164 of the Mineral Resources Act by the Applicant as holder of EPM 14547 are of no force or effect;
(d)a declaration that subsequent renewals of Notices of Initial Entry given after 1 April 2008 pursuant to Section 164 of the Mineral Resources Act by the Applicant as holder of EPM 15278 are of no force or effect;
(e)a injunction restraining the Applicant from entering or attempting to enter the Respondent’s property in reliance upon EPM 15278 and EPM 14547 or subsequent Notices of Entry given pursuant to Section 163 of the Mineral Resources Act;
(f)an order that the Applicant pay the Respondent’s costs of and incidental to the application.”
[2] Contentions of Respondent filed 21 May 2008.
Following the hearing of an application for an interlocutory injunction brought by the explorer, I made the following orders on 20 May 2008:[3]
[3] See Cape Alumina Pty Ltd v Silverback Properties Pty Ltd [2008] QLC 0092.
“1.Until 4.00pm on Thursday 29 May 2008, or earlier order of the Land Court, the respondent, by itself and its servants or agents, be restrained from hindering or preventing the applicant from conducting a flora and fauna field survey, an environmental baseline study, and an environmental study in the area of EPM 14547 and EPM 15278, substantially in accordance with paragraph 2 below.
2.The environmental study is to:
(a) be conducted by the environmental scientists listed in the affidavit of Mr Messenger filed on 16 May 2008;
(b) be conducted over 21 days on or before 1 July 2008;
(c) include such vehicles and equipment as may reasonably be necessary for the environmental study;
(d) be accompanied by representatives of the traditional owners of the land;
(e) include, if the respondent wishes, two observer appointed by the respondent;
(f) include a weekly plan of the locations proposed to be visited and the survey work to be done and a copy of that plan must be forwarded to the respondent.
3.The applicant:
(a)gives the usual undertaking as to damages;
(b)gives a further undertaking to make good any damage which might be incurred as a result of the environmental study; and
(c)gives an undertaking that, if there is any environmental harm, such harm shall be fully rehabilitated within three months of a survey being undertaken or of such harm becoming apparent, whichever is that later.
4.The costs of and incidental to this application be reserved.
5.There be liberty to apply to each party.”
On 29 May 2008 the interlocutory orders were extended until further order, effectively remaining in place until the delivery of this decision.
Exploration Permits in Queensland – Legislative framework
EPMs 14547 and 15278 held by the explorer were issued to the explorer under the provisions of Part 5 of the Mineral Resources Act 1989 (“the MRA”). As the name suggests, an exploration permit is designed to allow an explorer permission to explore certain land to determine mineralisation of that land. The process for delineating the boundaries of an exploration permit is very different to those which relate to the grant of a mining lease. Where a mining lease is granted over an area of land marked by pegs, clearly mapped, and is capable of being easily surveyed, exploration permits allow access to land identified by reference to blocks and sub-blocks of Queensland.
In simple terms, the entire State of Queensland is broken up by a grid system into large blocks, based on longitude and latitude.[4] Within each block there are 25 sub-blocks.[5] An exploration permit authorises entry to sub-blocks of land,[6] such sub-blocks usually having at least one side in common with another sub-block.[7] An exploration permit authorises the holder to enter land contained within a sub-block, and undertake exploration activity thereon, using such vehicles, vessels, machinery and equipment as may be necessary or expedient for the purpose of exploring for relevant minerals.[8] The entry rights of an exploration permit holder are subject to the provisions of s. 163 of the Act which will be discussed in greater detail later.
[4] See s. 126 of the MRA. Each block is 5' of longitude and latitude apart.
[5] See s. 126(3) of the MRA. Each sub-block is measured by boundaries 1' apart by way of longitude and latitude.
[6] See s. 127(1) of the MRA.
[7] See s. 127(2)(3) of the MRA.
[8] See s. 129(1) of the MRA.
Persons seeking exploration permits must go though a formal application[9] and grant[10] process. The initial term of an exploration permit is usually not more than five years,[11] and the holder may apply for a renewal of an exploration permit.[12] The holder of an exploration permit is required to pay rent,[13] and must also provide the Minister with security to ensure compliance with the conditions of the exploration permit and of the MRA, and rectification of any damage caused by the holder while acting under the authority of the exploration permit.[14] In addition, the holder is required to pay compensation to the owner of land within the boundaries of an exploration permit in circumstances where the owner has suffered loss or damage as a result of activities undertaken under the authority of the exploration permit.[15]
[9] See s. 133 of the MRA.
[10] See s. 137 of the MRA.
[11] See s. 146 of the MRA.
[12] See s. 147 of the MRA.
[13] See s. 138 of the MRA.
[14] See s. 144 of the MRA.
[15] See s. 145 of the MRA.
Unless the Minister otherwise directs, there shall be periodic reductions in the number of sub-blocks within the boundaries of each exploration permit,[16] the usual situation being a reduction by 50% of the number of sub-blocks by the end of the first two years after the permit is granted, and further reductions of 50% for each subsequent year. Each exploration permit is subject to specific statutory conditions,[17] together with such further conditions as are prescribed or determined by the Minister.[18]
[16] See s. 139 of the MRA.
[17] See s. 141(1) of the MRA.
[18] See s. 141(1)(i)(j) of the MRA.
A significant entitlement that holders of exploration permits receive is priority for the grant of any number of mineral development licences or mining leases within the sub-blocks contained within the exploration permit.[19] Holders of exploration permits may assign their rights under an exploration permit,[20] and other persons who claim a right or interest in an exploration permit may lodge caveats over an exploration permit.[21]
[19] See s. 129(1)(b) of the MRA.
[20] See s. 151 of the MRA.
[21] See s. 152 of the MRA.
Section 160 of the MRA sets out circumstances which may cause the Minister to cancel an exploration permit or impose on the holder of the exploration permit a penalty not exceeding 500 penalty units. Specifically, the Minister may cancel an exploration permit where the holder has carried out activities that are not bona fide for the purposes for which the exploration permit was granted;[22] has failed to pay any monies (other than rental) payable by the due date for such payment;[23] has failed to comply with any condition that is to be observed and performed by the holder of the exploration permit;[24] or has failed to report to the Minister the discovery of a mineral as required by s. 176 of the MRA.[25]
[22] See s. 160(1)(a) of the MRA.
[23] See s. 161(1)(b) of the MRA.
[24] See s. 161(c) of the MRA.
[25] See s. 161(d) of the MRA.
Notice of entry under the MRA
Both parties agree that at the heart of this dispute is differing statutory interpretations of the notice of entry and renewal of notice provisions of the MRA relating to exploration permits. Section 163 of the MRA relates to notice of entry and is in the following terms:
163 Notice of entry to be given
(1) An exploration permit holder must give the owner of the land covered by the permit written notice of entry before initial entry is made under the permit.
(2) The notice must be given at least 5 business days before the intended entry (or a shorter period acceptable to the owner and endorsed on the notice).
(3) The notice must—
(a)describe the activities proposed to be carried out on the land under the exploration permit; and
(b)state when the activities are to be carried out; and
(c)be accompanied by a copy of—
(i) the codes of conduct or practice applying to activities under the permit; and
(ii) any statements given to the Minister about proposals to protect the environment and rehabilitate the land.
(4) The holder must give the mining registrar a copy of the notice immediately after the notice is given and before entry is made under the permit.
Maximum penalty—10 penalty units.
(5) Contravention of subsection (4) does not affect the validity of the notice.
(6) If the owner can not easily be contacted, the holder may notify the occupier of the land of the intended entry.
Examples of owner not being easily contacted—
1 The owner does not live in Australia and there is no known current address for the owner.
2 The owner is travelling within Australia and there is no known current address for the owners.
(7) If the holder satisfies the mining registrar it is impracticable to give either the owner or occupier notice of the intended entry, notice.
(8) If the mining registrar dispenses with the need to give notice, the mining registrar must—
(a)make an appropriate endorsement on the permit; and
(b)ask the chief executive to make an appropriate note in the register.
(9) However, before making the endorsement, the mining registrar may require the holder to take the action the mining registrar considers appropriate to publicise the proposed entry, including, for example, publishing an advertisement in a newspaper or other publication.
To put s. 163 of the MRA into context with the other provisions relating to exploration permits, the intended operation of s. 163 appears clear. As previously discussed, the holder of an exploration permit will have an exploration permit over land identified by reference to blocks and sub-blocks. Of course, when those blocks and sub-blocks are superimposed over the actual tenure layout of the land, there will be one or more owners of land within each sub-block, and perhaps many varying forms of tenure. There could be any number of reasons why an exploration permit holder would never require entry to some of the land contained within an exploration permit.[26] Accordingly, the section is intended to apply when the holder of an exploration permit decides that it wishes to enter onto particular land covered by the exploration permit. Relevantly, the exploration permit holder must give the owner of the land[27] it intends to enter written notice of entry. The written notice must be provided to the owner at least 5 business days prior to the intended entry.
[26] For instance, a sub-block may be predominantly over pastoral land but a small area of a sub-block may contain a residential, freehold sub-division. It is quite conceivable that the explorer would require entry to, at least first instance, the large pastoral area but would not require access to each of the small, freehold, residential blocks. Depending upon topography; mineralisation found; etc; it is conceivable that the exploration permit holder would never seek access to the land contained within the sub-division.
[27] Note that owner of land, is extensively defined in the schedule dictionary to the MRA. Pursuant to (g) of that definition, Silverback Properties Pty Ltd is an owner of land for the purposes of s. 163.
Importantly, s. 163(3) sets out a number of mandatory components for the notice. The notice must describe the activities that the explorer plans for the land; state when those activities are to occur; and include copies of relevant codes of conduct, other practices or any environmental and rehabilitation requirements that are relevant.
The exploration permit holder must give the mining registrar a copy of the notice immediately after it is given to the landholder and prior to entry to the land occurring. Curiously, whilst the legislation sets out a penalty for a permit holder who fails to provide a copy of the notice to the mining registrar, s. 163 does not apply any penalty to a holder who fails to give the written notice to the landowner. Importantly, although there is a penalty provided for the failure of a holder to give the notice to the mining registrar, any such failure does not affect the validity of the notice.
The section then goes on to deal with circumstances where the owner of the land cannot be easily contacted. It is noted that the mining registrar may dispense with the requirement to provide written notice to the owner of the land, or may require such notice to be provided to the owner via a different method, such as advertising in a relevant newspaper.
Section 164 of the MRA concerns the term and renewal of a notice of entry pursuant to s. 163. Section 164 is in the following terms:
164Term and renewal of notice
(1) If an exploration permit holder gives notice of initial entry for land, the notice—
(a)permits entry for 3 months from the day stated in the notice; and
(b)may permit entry for a longer period if the owner’s written consent to the longer period is lodged with the mining registrar.
(2) The notice may be renewed.
(3) A notice of renewal must—
(a)be given to the owner at least 5 business days (or a shorter period acceptable to the owner and endorsed on the notice), but not more than 15 business days, before the current notice ends; and
(b)contain information of the kind mentioned in section 163(3) that is relevant to the period of renewal.
(4) The holder must give the mining registrar a copy of the notice of renewal immediately after the notice is given and before entry is made under the permit.
Maximum penalty—10 penalty units.
(5) Contravention of subsection (4) does not affect the validity of the notice of renewal.
(6) If the owner of the land can not easily be contacted, the holder may notify the occupier of the land of the intended entry.
Examples of owner not being easily contacted—
1 The owner does not live in Australia and there is no known current address for the owner.
2 The owner is travelling within Australia and there is no known current address for the owner.
(7) If the holder satisfies the mining registrar it is impracticable to give either the owner or occupier notice of the intended entry, the mining registrar may dispense with the need to give notice.
(8) If the mining registrar dispenses with the need to give notice, the mining registrar must make an appropriate endorsement on the permit.
(9) However, before making the endorsement, the mining registrar may require the holder to take the action the mining registrar considers appropriate to publicise the proposed entry, including, for example, publishing an advertisement in a newspaper or other publication.
The scheme of s. 164 follows similar lines to s. 163. Firstly, it sets out that the term of an entry pursuant to a s. 163 notice is 3 months or such other period as agreed in writing by the owner.
Section 164 then goes on to provide that a s. 163 notice may be renewed. A notice of renewal must be given to the owner of the land between 15 business days and 5 business days of the period for the current notice ending and must also contain information of the activities etc to be carried out during the renewal period.
Like s. 163, the holder of the exploration permit must give a copy of the renewal notice to the mining registrar and a penalty applies for failure to provide such notice to the mining registrar, but again any such failure does not affect the validity of the notice of renewal. Again, following like provisions to s. 163, s. 164 allows for the mining registrar to dispense with the requirement to give a renewal notice when the owner of the land cannot be easily located, or to allow some form of substituted notice such as advertisement in a newspaper.
EPM 15278
On 30 September 2007 the Honourable the Minister for Mines and Energy granted to the explorer EPM 15278. EPM 15278 was granted for a term of five years commencing on 30 September 2007 and expiring on 29 September 2012. The exploration permit allows for exploration for all minerals other than coal. EPM 15278 is over all of the land contained within 53 sub-blocks of 7 specified blocks.[28]
[28] EPM 15278 is set out in full in exhibit PM2 to the affidavit of Paul Messenger of 7 May 2008.
Annexure C to EPM 15278 sets out the specific conditions of the exploration permit. The special conditions include a program of works for EPM 15278 in years 1 to 3 of data compilation and review; geological reconnaissance; prospect delineation; and scoping studies. The program of works for years 4 to 5 is drilling. The special conditions also set out expenditure requirements on the explorer for 2 periods, the first period being from 30 September 2007 to 29 September 2010 requiring expenditure in the sum of $110,000, and the second period, from 30 September 2010 to 29 September 2012, requiring expenditure of $90,000. A relinquishment schedule is also set out in the special conditions.
On 2 October 2007 the explorer sent a “notice of intention of initial entry” to the landholder.[29] On 14 December 2007, the explorer sent a “notice of intention of entry on occupied land” to the landholder, for the stated purpose of “renewing our notice of entry for exploration on EPM 15278”.[30] The explorer’s renewal notice was for the period 10 January 2008 to 9 April 2008.[31]
[29] See exhibit PM18 to the affidavit of Paul Messenger of 7 May 2008.
[30] See exhibit PM27 to the affidavit of Paul Messenger of 7 May 2008.
[31] I note that the index to exhibits contained within the affidavit of Paul Messenger of 7 May 2008 shows exhibit PM27 as having the date of 14 November 2007. In this regard, the index is clearly in error and should refer to the date of 14 December 2007.
I note from the oral submissions of Mr Freeburn SC for the explorer[32] that it was submitted that the notice of renewal was posted on 14 December 2007. These submissions are at odds somewhat with the evidence of Mr Paul Messenger contained within paragraph 45 of his affidavit of 7 May 2008 which refers to the renewal as having been “served on 14 December 2007”.
[32] Transcript, page 68, line 30.
Submissions of respondent regarding EPM 15278
Counsel for the landholder, Mr Cochrane, in submissions provided to the Court through the landholder’s solicitor,[33] sets out the landholder’s position regarding EPM 15278 as follows:
“… the notice purporting to renew the Notice of Entry dated 14 December 2007 in respect of EPM 15278 is invalid because the notice has failed to comply strictly with the requirements of Section 164 of the Mineral Resources Act 1989. The notice attempting to renew the Notice of Entry is dated 14 December 2007 in respect of an earlier Notice of Entry which is expressed to expire on 9 January 2008. Pursuant to Section 164(3) of the Mineral Resources Act that Notice of Renewal may not be given more than 15 business days before a current notice ends. The statutory provisions required that any Notice of Renewal not be given prior to 24 December 2007 and accordingly no proper Notice of Renewal has been given by Cape Alumina with respect to EPM 15278.”
[33] See letter of 28 May 2008 from McColm Matsinger to Clayton Utz Lawyers.
Mr Freeburn SC for the explorer says that the contentions of the landholder can be easily answered. He produced to the Court a schedule which, in his view, clearly showed that the notice of 14 December 2007 was given not more than 15 business days before the current notice ends. The schedule of Mr Freeburn SC is as follows:
On the basis of the evidence of service of the notice as previously discussed and set out in paragraph 45 of Mr Messenger’s affidavit of 7 May 2008, in my view Mr Freeburn’s schedule is in error by referring to 14 December 2007 as the date of posting. It should instead refer to 14 December 2007 as the date of service and delivery. This has the effect of bringing forward by 1 day each of the days subsequently set out in Mr Freeburn’s schedule.
Mr Freeburn SC relies upon s. 38(1) of the Acts Interpretation Act 1954 which is in the following terms:
38. (1) If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculate by excluding the day, or the day of the act or event, and –
(a) if the period is expressed to be a specified number of clear days or at least a specified number of days – by excluding the day on which the purpose is to be fulfilled; and
(b) in any other case – by including the day on which the purpose is to be fulfilled.
In my view, the appropriate course to take when reckoning days in these circumstances is to exclude the date of service/delivery of the notice that being 14 December 2007, but including the final day of the period, that being not more than 15 business days before the current notice ends. On my analysis of the schedule provided by Mr Freeburn SC, with the amendments that I have made, by my reckoning the 15th day falls on 9 January 2008 and accordingly, by the barest margin possible, falls within the statutory framework.
It follows therefore that the notice of renewal of entry to EPM 15278 was validly made on 14 December 2007. Accordingly, the landholder has no right to exclude the explorer from so much of its land as is contained within EPM 15278 and it is appropriate that the orders sought by the explorer with respect to EPM 15278 be made.
EPM 14547
EPM 14547 was granted by the Honourable the Minister for Natural Resources, Mines and Water on 20 April 2006 for a term of 5 years commencing on 20 April 2006 and expiring on 19 April 2011. It allows exploration for all minerals other than coal, and is over 48 sub-blocks on 5 blocks.[34] Specific conditions of EPM 14547 are set out in annexure “C”. Those specific conditions include a program of works for the EPM, requiring data compilation and review, geological recognisance and mapping, and scoping studies to be undertaken in year 1; drilling and assaying to be undertaken in year 2; and drilling, assaying and marketing studies to be undertaken in years 3, 4 and 5. These specific conditions also stipulate expenditure by the explorer in the sum of $40,000 in year 1; $50,000 in year 2; $50,000 in year 3; $50,000 in year 4 and $50,000 in year 5. Additionally, the specific conditions set out a relinquishment schedule which shows that the number of sub-blocks is to reduce from 48 in 2006 and 2007 to 24 in 2008, 12 in 2009 and 6 in 2010.[35] It is unnecessary to go into great detail regarding the notices of entry delivered by the explorer to the landholder relevant to EPM 14547, save to make the following observations. Following delivery of a notice of entry dated 22 May 2006, on or about 16 June 2006 an agreement was reached between the explorer and Mr Witherspoon, the then landholder, agreeing to a 12 month time period for entry to the land. On 24 and 27 July 2007, the explorer sent notices purporting to renew the entry. On any reading of s. 164 of the MRA, such notices were given to the landholder out of time. On 13 August 2007, the explorer wrote to Mr Witherspoon and to Silverback enclosing, in each instance, a “notice of initial entry on occupied land” for the period 21 August 2007 to 20 November 2007. At this time, the Witherspoons were still the registered lessees of the subject land. On 3 September 2007 the landholder replaced the Witherspoons as the registered lessee of the subject land.
[34] Exhibit PM 1 to the affidavit of Paul Messenger of 7 May 2008.
[35] I note that, pursuant to s. 141C(3)(a) of the MRA, approval was granted to vary the relinquishment conditions for year 3 from 24 sub-blocks to 48 sub-blocks, meaning that the total number of sub-blocks for EPM 14547 has not as yet been reduced from the original 48 sub-blocks.
The issue, then, simply put, as between the explorer and the landholder, can be summarised thus: after the time period for entry following the giving of an initial notice of entry has expired, can such notice be renewed pursuant to s. 164 of the MRA, or is a fresh notice required under s. 163? If a fresh notice is required under s. 163, is it possible to deliver a second notice in circumstances where a notice has already been delivered some time earlier? By failing to renew the entry in accordance with s. 164, has the explorer exhausted all its opportunities to gain entry to the landholder’s land subject to EPM 14547 for the purpose of exploration?
Submissions of the explorer regarding EPM 14547
Mr Freeburn SC provided a useful summary of his submissions with respect to EPM 14547 as follows:[36]
“19.It can readily be accepted that the right to entry under an EPM is “subject to compliance with section 163”.[37] Perhaps significantly, the right of entry is not expressly made subject to compliance with both s163 (initial notices) and s164 (renewals). A fair reading suggests that, provided an initial notice is given under s163, there is a right of entry and that right is not affected by compliance with s164, although, of course, the Act requires compliance with s 164.
20.In any event, s163 does not preclude the EPM holder from issuing a second notice under s163. That is clear for the following reasons.
21.First, nothing in the Act suggests the EPM holder has exhausted his rights once he has issued a notice under s163. The word “initial” obviously refers to the first occasion of entry. However, if the property is transferred to another ‘owner’, as happened here, there is no reason why an EPM holder cannot issue a fresh notice to the new ‘owner’ under s163.
22.Second, s32C of the Acts Interpretation Act 1954 requires s163 be read as referring either to a ‘written notice’ (i.e. singular) or to ‘written notices’ (i.e. plural).[38] The Act does not compel a contrary conclusion. Nothing in the Act precludes the EPM holder from issuing a fresh notice to, for example, a new owner or to the same owner but in respect of a different mineral or a different set of activities.
23.In fact, the standard form of these notices as prescribed by the Department of Natural Resources, Mines and Water, Form Number MRA-12, requires an EPM holder to precisely detail the activities being proposed and, consequently, any necessary changes to the EPM holders activities compels the service of a further ‘notice of intention of initial entry on occupied lands’ detailing the new activities not previously state.
24.Third, even if the respondent is correct that only one notice may be issued under s163, the EPM holder can still issue a renewal notice under s164. It is true that s164 directs that renewals should be given between the 15 and 5 days of the current notice ending. But that requirement is, to use the language of the cases, merely directory rather than mandatory.[39] Section 164 provides its own remedy (a maximum of 10 penalty units) if the section is not complied with. However, nothing in the Act suggests that even the slightest breach of s164 means that the EPM holder loses all his rights under the EPM.[40]
25.In fact, to read the Act in that way would be contrary to the principal objective of the Act, which is to “encourage and facilitate prospecting and exploring for and mining of minerals”.[41]
26.Here, Silverback became the ‘owner’ of Bertiehaugh Station on 3 September 2007 when it became the holder of the Crown lease.[42] Then, as it was entitled to do, Cape Alumina gave a notice under s164.[43] The fact that the notice was not strictly within the times specified by the Act does not render the notice as void or invalid or of no effect.
[36] Submissions 15 May 2008, paras 19-29, footnotes included.
[37] See s129(1)(a).
[38] See also Pearce & Geddes, Statutory Interpretation in Australia (4th ed) at 172.
[39] In Project Blue Sky v ABA (1998) 194 CLR 355 at [93] the High Court, whilst joining in the criticism of the continued use of the elusive distinction between directory and mandatory requirements, said that the real issue is whether an act done in breach of the legislative provision is invalid. As to that issue, see the discussion below (paragraphs 27 – 29).
[40] Note the previous remarks to the effect that s129 does provide that the entry is subject to s163 but does not say that the right of re-entry is subject to compliance with s164. That was seemingly a deliberate choice by the drafters of the legislation.
[41] S2(a) of the Act.
[42] See paragraph (g) of the definition of ‘owner’ in the dictionary in the schedule to the Act.
[43] As the chronology shows, notices were delivered on 14 November 2007 and 11 February 2008.
Applying Project Blue Sky
27.To succeed, Silverback must demonstrate that the notices delivered to it after it became the ‘owner’ are invalid. As the majority of the High Court said in Blue Sky Mining (sic) v ABA [44] the issue of validity is determined by asking whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid.
28.Here, the objective of the Act is to encourage exploration for minerals. The principal right attaching to an EPM is a right of entry so as to explore. The legislation hardly envisages that the holder of an EPM loses all of his rights if he fails to deliver a notice between 15 and 5 days prior to the expiry of an earlier notice.
29.In fact, the very point of the notice is to inform the ‘owner’ of proposed entry and of the proposed exploration activities. Nothing in the Act suggests that a notice which otherwise complies with the Act, but is not delivered strictly within the times specified, is invalid and therefore has the effect of destroying all of the holder’s rights under the EPM.”
[44] (1998) 194 CLR 355 at [93]. This is the joint judgment of McHugh, Gummow, Kirby and Hayne JJ. Brennan CJ dissented.
Mr Freeburn SC expanded upon the above summary, both in additional written submissions and in oral submissions. I will deal with the expanded submissions of Mr Freeburn SC, as is necessary, in my detailed consideration of EPM 14547.
Submissions of the landholder
Like Counsel for the explorer, Mr Cochrane for the landholder has supplied the Court with comprehensive written submissions, together with oral submissions. The submissions of Mr Cochrane can be summarised by reference to one of his written submissions as follows:[45]
[45] Submissions, undated, provided to the Court for hearing on 29 May 2008, commencing at para 34.
“34.“Initial Entry” is not defined under the Mineral Resources Act.
35.Interpretation of a statute begins with a proposition that words used in the statute should be given the usual and ordinary meaning.
36.It might be thought that the structure of the Act is intended to create a situation whereby a landowner of land the subject of an EPM is kept informed of the activities of the holder in carrying mineral exploration and that at the same time the explorer is given an opportunity to carry out an appropriate exploration but not without limits.
37.The Concise Macquarie Dictionary defines “initial” in the following way:-
· “of or pertaining to the beginning; incipient; the initial step in a process;
· at the beginning of a word of (sic) syllable.”
38.It might also be thought that if the Parliamentary Draftsmen and the Legislature had contemplated or intended that more than one initial Notices of Entry were intended to be given to landowners then they would have made an appropriate provision and there would not have been any need for Sections 163 and 164 to identify a particular term for the life of a Notice of Initial Entry ought to have provided for an opportunity to renew the Notice of Initial Entry.
39.The Respondent disputes the interpretation set out by the Applicant at paragraphs 20 – 25 of its submissions.
40.In the first place the Mineral Resources Act is an Act which contains provisions which effectively over-ride the rights of the private property owner (including the lessee) to quiet possession of its land. The Act authorises that would otherwise be a trespass.
41.The granting of such “trespass” rights is not a matter which is lightly undertaken and it is submitted that the framework of Sections 163 and 164 is to set up a “constrain” structure which seeks to protect the rights of landowners and at the same time to permit the holder of an EPM the opportunity to carry out the relevant exploration activities.
42.There is no suggestion that such exploration rights are open ended.
43.While it is acknowledged that Section 2 of the Act contemplates the framework which is to “encourage and facilitate prospecting and exploring for and mining of minerals” that objective is not without constraint.
44.The structure of the Act is to set up a relatively strict framework within which the holder of an EPM must operate.
45.The Mineral Resources Act sets up a structure which obviously seeks to balance the interest of the landowner with those of the holder of an Exploration Permit.
46.The error of the arguments by the Applicant are apparent when one considers the terms of Section 164(1A) and (B).
47.Section 164(1) applies once the Notice of Initial Entry for land has been provided. Section 164(1A) sets out that that initial notice permits entry for three months from the day stated in the notice.
48.The Section goes on to provide for renewal of that notice (Section 164(2)). That renewal itself is subject to requirements with respect to the amount of notice to be given to an owner.
49.That informative process is modified by Section 164 which provides for the term and for renewal of the notice.
50.If, as the Applicant contends, the holder of a Exploration Permit can simply issue any number of fresh Notices of Entry then the provision in Section 164 permitting renewal and/or extension of the Exploration Permit would be rendered nugatory.
51.That cannot have been the intention of the legislature.
52.The procedures for renewal are relatively straight forward and do not place any great burden on the holder of the Exploration Permit. They do however place a burden on the landowner to the extent that it permits the presence of persons on the land not otherwise entitled to be there.
53.The Appellant calls in aid the observations of the majority of the High Court in Project Blue Sky Incorporated v Australian Broadcasting Authority (1998) 194 CLR 355 (at paragraph 93).
54.They invoke the spectre of the purposive approach to statutory interpretation and what the High Court recited with approval as “the elusive distinction between directory and mandatory requirements” identified by the NSW Court of Appeal in Taskar v Fulwood. The High Court then focused on the notion that “a better test for determining the issue of validity is to ask whether is was a purpose of the legislation that an Act done in breach of the provision should be invalid.” The statute provides that a failure by the holder to provide a copy of the Notice of Renewal to the Mining Registrar does not affect the validity of the Notice of Renewal. It is silent as to what is the effect of a failure to provide a copy to the landowner, or to provide a copy to the landowner within the timeframes set out in the Act.
55.It is submitted that by drawing the distinction between notice to the Mining Registrar and notice to the landowner the legislature intends a different outcome for the failure to notify the landowner. …
57.The provisions of Sections 163 and 164 must be construed within the context of the approvals which are granted which themselves require compliance with the provisions of the relevant Act.
58.It is noteworthy that the Mineral Resources Act 1989 (the predecessor to the current Act) contained at Section 164 similar provisions to those presently under consideration. Section 164(4) provided that the holder of an Exploration Permit must give the Mining Registrar a copy of the notice or Notice of Renewal. It contained no provision in similar terms to that currently contained in Section 163(5) or 164(5) that the failure to give the notice has no effect on the validity of the Exploration Permit.
59.That is suggestive that, given those provisions are included in the current form of the Act only in respect of the notice to the Mining Registrar that some other outcome must be consequential upon a failure to provide notice to the landowner. In this context it is submitted by the Respondent that the effect or consequence is that the Notice to Enter ceases to have effect and the holder of the Exploration Permit is no longer entitled to come onto the land the subject of the permit.
60.The interpretation contended for by the Respondent does not in any way frustrate the ambitions of the Act to encourage and facilitate prospecting and exploring for and mining of minerals.
61.What the contention of the Respondent is consistent with is the notion that the opportunity to come onto the Respondent’s land is constrained by the requirement to properly issue and renew Notices of Entry.”
The purposive approach – Project Blue Sky
As the above submissions show, a critical element in determining the respective rights of the explorer and the landholder under EPM 14547 comes from a consideration of the High Court case of Project Blue Sky v ABA[46] (“Project Blue Sky”). As Mr Freeburn SC said during submissions:[47]
“The only other thing that remains to be done is to have a look at a couple things my learned friend says in his submissions. At paragraph 22 he says the “requirements for renewal of the notice of initial entry are expressed in mandatory terms”. That, of course, is true. The word “must” is used. But that’s not unusual. And to give the previous example, the UCPR says one must file a defence within 28 days. There are legions of cases which talk about how the language doesn’t necessarily suggest the character of the provision. And, of course, the mandatory nature of the language is referring to requiring it to be done and not giving any discretion as to whether you do it or not. But that doesn’t answer the question, the crucial question of whether the Legislature really intended that the slightest breach of those provisions would mean that the notice is invalid. In our submission, it all comes back to the High Court’s decision in the Blue Sky case, and applying that test.”
[46] [1998] 194 CLR 355.
[47] Transcript, page 79, lines 1 to 14.
The Project Blue Sky case involved actions by various New Zealand film producers against the Australian Broadcasting Authority (the ABA), alleging that a Program Standard developed by the ABA was inconsistent with s. 160(d) of the Broadcasting Services Act 1992 (Cth) in that the standard was inconsistent with a trade agreement made between Australia and New Zealand in 1983. A key question for the High Court was whether or not an act done by the ABA in breach of its legal duty under s. 160 of the Broadcasting Services Act 1992 (Cth) was invalid or not. In considering this point, the joint judgment of the majority[48] had this to say:[49]
“In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood (71) in criticising the continued use of the “elusive distinction between directory and mandatory requirements” (72) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning (73). That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales (74). In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute” (75).”
[48] McHugh, Gummow, Kirby and Hayne JJ (Brennan CJ dissenting).
[49] Project Blue Sky at pages 390 – 391.
Applying this purposive test in Project Blue Sky, the majority concluded as follows:[50]
“Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act (82). Having regard to the obligations imposed on the ABA by s 160, the likelihood of that body breaching its obligations under s 160 is far from fanciful, and, if acts done in breach of s 160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA. …
It is hardly to be supposed that it was a purpose of the legislature that the validity of a licence allocated by the ABA should depend on whether or not a court ultimately ruled that the allocation of the licence was consistent with a general direction, policy or treaty obligation falling within the terms of s 160. …
Because that is so, the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid.In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision “may in particular cases be punishable” (84). That being so, a person with sufficient interest is entitled to sue for a declaration that the ABA has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.”[50] Project Blue Sky at 392 – 393.
Counsel for the explorer and the landholder have starkly different views as to how the purposive approach of the High Court in Project Blue Sky should be applied to the case at hand. Mr Cochrane for the landholder asserts that the purpose of ss 163 and 164 of the MRA is to protect the property rights of the landholder,[51] and accordingly a strict interpretation of the provisions in favour of landholders is necessary. Mr Freeburn SC, on the other hand, argues that the purpose of ss 163 and 164 of the MRA is to assist in the balancing or minimising of any real or potential conflict between the interests of explorers and landowners.[52] Mr Freeburn SC relies upon the objectives of the Act as set out in s. 2 of the MRA in support of his contentions.
[51] See para 7 of Mr Cochrane’s written submissions.
[52] See submissions, for Freeburn SC, para 9.
Before embarking on a detailed analysis of the purpose of ss 163 and 164 in the MRA, it is necessary to consider a case which has been determined by the Queensland Court of Appeal which involved an application of the purposive approach from Project Blue Sky to the MRA. That case is Queensland Coal P/L and Anor v Shaw and Anor.[53]
[53] [2001] QCA 463 reported at 2002 2 Qd.R 288.
The Court of Appeal decision in Queensland Coal considered the question as to whether or not the failure of a grant of a mining lease made under the Mining Act 1968 to specify the depth of the mining lease rendered the mining lease invalid. The Court of Appeal ultimately overturned a decision of the President of the Land and Resources Tribunal who had earlier ruled[54] that the failure of the mining lease to specify a depth did not invalidate the grant. In making such a finding, the President had specifically relied upon the purposive test from Project Blue Sky.
[54] See Queensland Coal Pty Ltd and Others v Shaw [2001] QLRT 11.
The President of the Land and Resources Tribunal considered the purpose of the Mining Act 1968 this way:[55]
“[9]Having regard to the wording of s. 114, the purpose of that section, in my opinion, is to ensure that absent agreement by the landowners, a mining lease must be limited to the depth recommended by the warden. The section does not, however, prohibit the grant of a mining lease over private land. …
[11]It can hardly be supposed that when granting ML 1978, the Crown intended anything other than that a valid mining lease be granted. Because the warden had determined a depth limitation, it is clear from the wording of s. 114 – and was common ground between the parties – that the Governor in Council had no discretion to not include that condition in the lease or to vary the depth limitation determination – if a valid lease were to be granted. As the Crown is presumed to have granted that also without which the mining lease cannot be (validly) enjoyed, it follows, in my view, that in order to give effect to the plain and undoubted intention of the grant – namely to confer a valid mining lease in accordance with the 1968 Act, the warden-determined depth limitation should be implied in ML 1978 as a matter of necessary and unavoidable intendment. I do not regard it to have been a purpose of the 1968 Act (or indeed of s. 114) that the grant of a mining lease without a recommended depth limitation would be invalid.”
[55] [2001] QLRT 11 at paras 9 and 11.
The principal judgment in the Queensland Court of Appeal was written by Thomas JA.[56] After considering the President’s approach to Project Blue Sky, Thomas JA had this to say:
[56] Davies JA and Cullinane J concurring.
“While it is true that courts are now more reluctant to infer the invalidity of acts done contrary to a statutory requirements than they formerly were, the determination of the court is one of proper interpretation, not of convenience. Section 114 of the 1968 Act is one of the few important protections afforded to the owners of private land against mining. Where the conditions of s 114 (a) and (b) apply (as they do here) it is quite plain there is to be no grant of a mining tenement unless the owner consents, or unless the mining tenement is limited to such depth as the Warden has determined. It is a clear statutory direction that a mining tenement is not to be granted unless effect is given to the Warden’s determination. There is no similar prohibition in respect of an application for a surface area, in respect of which the mining company becomes liable to pay compensation. There is no similar provision for compensation if the application is for sub-surface mining. The protection of land owners from the potentially drastic effects of underground mining is an important matter. In my view s 114 clearly says, “Don’t grant such a lease at all unless you give effect to the warden’s determination on depth.”.[57]
A mining lease granted under the above provisions is the source of important rights which may be exercised by mining companies adversely to the rights of the owner of the land. They include the right to enter private land and to mine it. But for the protection of a mining lease granted under these provisions, the miner would be liable to pay damages to the owner of the land. The legislative scheme includes provision for transferring, subletting and encumbering mining leases, entering such dealings in a register, lodging a caveat forbidding registration of dealings. I note in passing that the scheme is one in which rights and title obtained by means of grant, not be means of registration.
A formal and sufficient identification of the land the subject of a mining lease is a basic requirement. In common with other leases, there is a need for proper identification of premises the subject of the lease. In the case of mining leases of the surface of specified land, this requires a surface or horizontal description. In the case of non-surface leases a vertical as well as a horizontal description is necessary to identify the premises the subject of the lease.[58]
The question in this case is not answered by an assumption that most people do not intentionally flout the law. It is to be answered by the nature and presumed effect of a proven non-compliance.[59]
It seems to me that it is inconsistent with the legislative scheme that has been described above to say that the description of the land in a mining lease may be varied by implication. In my view, insofar as the lease purports to grant rights over the Shaws’ land, it is a nullity, and the mining companies cannot show that they are competent applicants to pursue the present application for a surface area extension.[60]”
[57] Queensland Coal 2002 Qd.R 288 at 292.
[58] Ibid at 293.
[59] Ibid at 293.
[60] Ibid at 294.
Purpose of the MRA
Applying the Project Blue Sky test, for what purpose does the MRA exist in general, and ss 163 and 164 in particular? The answer to the general purpose of the MRA is to be found in s. 2 of the Act:
2Objectives of Act
The principal objectives of this Act are to−
(a)encourage and facilitate prospecting and exploring for and mining of minerals;
(b)enhance knowledge of the mineral resources of the State;
(c)minimise land use conflict with respect to prospecting, exploring and mining;
(d)encourage environmental responsibility in prospecting, exploring and mining;
(e)ensure an appropriate financial return to the State from mining;
(f)provide an administrative framework to expedite and regulate prospecting and exploring for and mining of minerals;
(g)encourage responsible land care management in prospecting, exploring and mining.
It is immediately apparent by the provisions of s. 2 of the MRA that, whilst encouraging and facilitating exploration are key components of the Act, so to is the minimisation of land use conflict arising between landholders and explorers. In that light, the actual purpose of ss 163 and 164 must be read.
Mr Cochrane for the landholder has made forceful submissions as to his view of the purpose of ss 163 and 164, both specifically and read in light of s. 2. During oral submissions, he had this to say:[61]
“We live in a community where interests in property are controlled by the Torrens title system. The notion that a person’s home is their castle of course translates across into all forms of tenure or interests in land. It’s my submission that properly read, while recognising and acknowledging what are said to be the objectives of the act, the tenor of the act is to both recognise and to go a long way towards protecting the inevitable conflict that occurs when an overarching act like the Mineral Resources Act gives the holder of an exploratory permit for minerals an entitlement to what would otherwise be trespass on land. It gives them a right of entry. So, it is no surprise that the legislation is drafted in a way which places high obligations and onuses on that potential trespasser. I don’t use the word “trespasser” in a pejorative sense. It is just that you now have, in terms of the ownership of that property an entitlement in the ownership of a permit to come onto land that they don’t own and in which they have no other interest than an exploratory one. So, in my submission, the act does recognise the paramountcy of an estate in land. …
… the Legislature has carefully inserted into the act the provisions that require proper notice to the land owner. …
The purpose of using the word “initial entry” is a significant one, in my submission. As with my friend, I have to say that there is nothing that I could find in second reading speeches that provides any assistance as to how section 163 and 164 ought to be construed. But what I submit is this: There is a schema in the act whereby a person may obtain – as everybody in this Court that deals in this kind of law knows, people may obtain exploratory permits. Not every exploratory permit reaches the stage of what I’d call fieldwork. …
As my friend says, sometimes early in that process they go no further. Work out that it’s an arid exercise. Not yielding any worthwhile results, mineralisation is not as they expected it to be or whatever. So, the land owner knows, if he is notified, that they have stopped; that particular exploratory permit is going to be abandoned and the land owner need not worry about further incursions on to the property. But if that doesn’t happen, the land owner, in the scheme of things, should remain notified of the ongoing interest in coming on to the land, consequent upon the initial entry.
It’s not in my submission a big price, a big burden to be borne by a prospective miner, an explorer, that they have to fight their way through a very small thicket of paperwork. Mining exploration and development is a paper jungle. It’s nothing extra. All it requires – as does the permit – is a timely attention to their statutory requirements.”
[61] Transcript pages 81 – 82.
Mr Freeburn SC[62] contends that, if Mr Cochrane’s strict interpretation of the purpose of ss 163 and 164 was applied, the result would be that an explorer would be required to issue an initial entry pursuant to s. 163 prior to the first entry on to any property, and having issued such a notice, then every 3 months for the remainder of the term of the exploration permit, which would normally be 5 years but could be longer, issue a renewal under s. 164. This would result in 20 notices of entry being provided to landholders, including for periods, which may be lengthy, when the explorer had absolutely no intention of entering on the land in the short or mid term. I agree with Mr Freeburn SC that such an interpretation cannot be the purpose for which ss 163 and 164 were enacted.
[62] See transcript pages 72 – 73.
I am mindful of course of the words of Thomas JA in Queensland Coal, set out earlier, where he referred to s. 114 of the 1968 Act as being “one of the few important protections afforded to the owners of private land against mining”.[63] Sections 163 and 164 of the MRA likewise contain some of the few protections afforded to landholders with respect to the exploration rights of explorers. In my view, the purpose of ss 163 and 164 is clear.
[63] Queensland Coal v Shaw [2002] Qd.R 288 at 292.
Findings regarding purpose of ss 163 and 164 of the MRA
Applying the principals annunciated by Thomas JA in Queensland Coal to the clear and plain wording of ss 163 and 164 of the MRA, it is my view that any notice of entry or renewal notice which does not comply with the requirements of those sections is invalid. Applied to the facts of the case at hand, the result is that the notices renewing entry issued by the explorer on 24 and 27 July 2007 with respect to EPM 14547, in failing to comply with the time limits as prescribed by s. 164, are invalid. It follows that any subsequent renewal notices which rely upon the notices from July 2007 are also invalid. However, in my view, that is not the end of the matter.
Whilst Mr Cochrane for the landholder contends that where a notice of entry under s. 163 is not properly renewed, the explorer loses all entry rights to the property concerned. In my view that cannot, and is not, a correct reading of ss 163 or 164 given the purposive approach adopted in Project Blue Sky and applied in Queensland Coal.
An integral part of a s. 164 renewal notice is that such renewal must be given between 5 and 15 business days “before the current notice ends”.[64] Plainly speaking, for a renewal notice to be given, there must be a current notice in existence. If there is not a current notice in existence pursuant to s. 164, then in my view one returns to s. 163 and issues a fresh notice of entry. This then becomes the current notice for the purpose of s. 164, irrespective of the number of notices of entry that may already have been provided.
[64] My emphasis added.
The purposes of ss 163 and 164 are clearly designed to ensure that the landholder is given an up to date, detailed notice of the timing of when an explorer intends to be on the landholder’s property, and the activities to be undertaken by the explorer while on the property. I agree with Mr Freeburn SC that to compel the explorer to continually give notices of renewal under s. 164 to a landholder even in circumstances where the explorer has no current intention of returning to the land, perhaps for a period of years, would have the opposite effect to that contended for by Mr Cochrane. That is, such a general, mandating renewal of a notice would effectively give the landholder little valuable information at all, and would be inconsistent with the manner in which exploration activities are conducted both in this State and elsewhere.
It is common ground between the parties that exploration activities occur on a rather random, ad hoc basis. There may be periods of great activity in an area, followed by months or years of dormant activity. The various actions that are undertaken under an exploration permit include those set out in the special conditions to the exploration permits, which indicate the various natures of the activities to be undertaken on an exploration permit over various years throughout the term of the exploration permit. Clearly, in my view, the purpose of s. 163 is for an explorer to give a landholder a clear, detailed notice setting out a proposed entry on to the landholder’s property and the activities to be undertaken under such entry. Should those activities be expected by the explorer to take more than the 3 months allowed under the initial entry, the explorer may either negotiate a longer time period with the landholder and reach agreement for a longer period for the initial notice, or otherwise the explorer will be compelled to issue a renewal notice that complies with s. 164. Once the explorer’s activity with respect to the entry notice and the renewal (or renewals) come to an end, the explorer’s right to enter the property and carry out those activities also comes to an end. However, should the explorer require, consistent with the special conditions set out in the exploration permit or generally, subsequent access to the landholder’s land for additional exploration activity which may be significantly different to that activity carried out by the explorer on the first entry, then the explorer is compelled to issue a fresh notice of entry pursuant to s. 163 and to set out in that notice all those things required in an entry notice, including a detailed analysis of the purpose of the entry, the activities to be undertaken, and time frames for such activities. Accordingly, it follows that in my view the notice of entry provided by the explorer on 13 August 2007[65] was validly made and remains effective so long as it has been properly renewed pursuant to the provisions of s. 164 of the Act.
A Different Approach – Consideration of the Terms of Pastoral Holding 43/4190 and the History of Mining in Queensland
[65] Note that the notice was provided to both the landholder prior to registration of its interest and to the previous landholder, the Witherspoons.
In August 2008, following a request that I made of the parties, additional affidavit evidence was provided to the Land Court,[66] and further oral and written submissions were received from Counsel for both parties. The Court is indebted to both parties for the additional work that they undertook regarding the terms of the pastoral lease in question and the impact of such terms, if any, on my determination as to the proper construction of ss 163 and 164 of the MRA.
[66] See affidavits of Phuong Dinhduong of 1 August 2008, Maxwell Gerard Locke of 1 August 2008, and Graham Edward Nicholas, also of 1 August 2008.
A copy of the original pastoral holding 43/4190 is exhibit PM37 to the affidavit of Paul Messenger of 15 May 2008. The instrument of lease contained the following provision:
“PROVIDED ALWAYS AND WE DO HEREBY RESERVE unto Us Our Heirs and Successors, all Gold and Minerals (the term ‘Minerals’ to have the same meaning as in ‘The Mining on Private Land Acts, 1909 to 1954’), on and below the surface of the said Land, and all Mines of Gold and Minerals, on and below the surface of the said Land:
AND WE DO HEREBY ALSO RESERVE unto Us, Our Heirs and Successors, and to such persons as shall from time to time be duly authorised by Us in that behalf, during the term of the said Lease, the free right and privilege of access, including ingress, egress, and regress, into, upon, over, and out of the said Land, for the purpose of searching for or working Gold and Minerals, or any of them, or Mines of Gold and Minerals, or any of them, in any part of the said Land”
Such a provision was a common occurrence in pastoral holdings granted at that time, and was consistent with the legislative framework then in existence. Why do such pastoral holdings contain these reservations? The answer lies in an understanding of the legislative development of mining law in Queensland.
By 1898, there were 16 different mining Acts in force in Queensland[67]. Those Acts were consolidated into The Mining Act of 1898 (“the MA 1898”). The MA 1898 is noteworthy as it made provision for mining on Crown Lands,[68] which by definition included all pastoral lease land.[69] Importantly, as at 1898, mining[70] was not authorised on private land such as freehold, because at that time a freehold owner retained ownership of the minerals[71] on the land. This situation changed in 1908 with the passage of The Mining on Private Land Act 1909 (“the MPLA 1909”), which became an Act of general application for mining on private land.[72] Importantly, by s. 6(2) of the MPLA 1909, all grants and leases relating to Crown Land were thereafter to include a reservation of all gold and minerals, and also “a reservation of the right of access for the purpose of searching for or working any minerals in any part of the land”. The provisions of s. 6(2) of the MPLA 1909 were specifically adopted by s. 6(3) of the Land Act 1910.
[67] See Queensland White Statutes, 1828-1936, Vol 6, p 424.
[68] The MA 1898, s 24.
[69] The MA 1898, s 3, definition of Crown Lands.
[70] Reference to mining excludes mining gold, silver, copper, tin, opal, and coal, which at the time were subject to their own vesting provisions, as per the MA 1898, s6 (1).
[71] Excluding those previously referred to.
[72] As defined in s 4, definition of private land.
The subject land in this matter, PH43/4190, was originally granted on 1 January 1957 for a period of 30 years and contained the reservations already referred to, consistent with the MPLA 1909 and the Land Act 1910. As PH43/4190 was not private land,[73] the entitlement for miners to prospect on the pastoral holding were as contained in s 23A of the MA1898.[74] Importantly, there was no requirement for any notice to pastoral lease holders of entry onto such land for prospecting purposes. All that was required was the grant by the Minister of the authority to prospect,[75] and the miner could then enter onto the land and take possession of the relevant area.[76] [77] This situation remained until the consolidation of Queensland mining law, commenced by the MA 1968 which repealed the MA 1898, and made complete[78] by the repeal of the MPLA 1909 in 1971.[79]
[73] As defined in the MLPA 1909.
[74] Inserted into the MA 1898 by the Mining Acts Amendment Act 1930.
[75] S 23A (1).
[76] S 23A (2).
[77] In this regard, I specifically disagree with the contentions set out in the letter of Clayton Utz, dated 3 June 2008, agreed to by the solicitors for the landholder, in so far as they state, on page 2 thereof, that the MA 1898 did not provide for exploration permits or similar devices, but did acknowledge that authorities to prospect were allowed by s 12A of the MLPA 1909, but that such authorities were only for a period of 30 days and seem to have been designed to preserve the rights of one prospector as against another. Such letter fails to take into account, in any way, the provisions of s 23A of the MA 1898.
[78] Save for specific legislation such as the Central Queensland Coal Associates Agreement Act 1968 etc.
[79] By Act No 24 of 1971, s 33.
Notably, under the MA 1968, the definition of Owner[80] included registered proprietors; lessees and licensees from the Crown; and those persons having lawful control of land. The distinction between mining on ‘Crown Land’ and mining on ‘Private Land’ continued even after the 1971 amendments.[81] The 1971 amendments also continued the Crown’s ownership in minerals,[82] and contained provisions like those originally in the MPLA 1909 relating to all Crown grants or leases containing reservations of all minerals and rights of access to search for or mine such minerals.[83] In 1989, the MA 1968 was repealed by the MRA.
[80] See s 7.
[81] In effect, the MLPA 1909 was repealed and instead a new Part XII – Mining on Private Land was inserted into the MA 1968.
[82] Per s 110.
[83] See s 110 (4).
The MRA was a major overhaul of Queensland’s mining legislation. It allows for prospecting permits;[84] mining claims;[85] exploration permits;[86] mineral development licences;[87] and mining leases.[88] Sections 163 and 164, with which this case is primarily concerned, had their genesis in Part 5 of the MRA. That said, however, the MRA could fairly be described as a fine tuning of the long established concept of allowing miners to go onto land, in particular leasehold land such as PH43/4190, and explore for minerals.[89] The important change introduced by sections 163 and 164 was that of notice to the landholder. Certainly, parliament clearly intended that landholders receive proper notice prior to entry, and explorers cannot enter land to explore without giving such notice. However, the over one hundred years of legislative development of processes allowing explorers to enter onto land such as PH34/4190 and explore leaves no room, in my view, for the narrow interpretation of Notices of Initial Entry pursuant to s 163 contended for by the landholder in this case. Taken literally, the word ‘initial’ as it is found in s. 163 could have either the meaning put forward by Mr Freeburn SC or Mr Cochrane. Accordingly, to succeed, the landholder would have to be able to point to a clear and plain parliamentary intention for a strict, restrictive interpretation of s 163, and, in my view, in light of the legislative history and absent any direct Parliamentary intention as to the purpose for the change in 1989, it is not able to do so.
[84] Part 3.
[85] Part 4.
[86] Part 5.
[87] Part 6.
[88] Part 7.
[89] Note that the reservation to the Crown of all minerals and rights of access to search for or mine such minerals was continued by s 8 (4) of the MRA.
Conclusion
For all of the reasons set out above, it follows that the declaratory and injunctive orders to be made in this matter partially follow those as sought by the landholder and partially those as sought by the explorer. In short, the notices issued pursuant to EPM 15278 and renewals thereof have been validly made by the explorer and the landholder will be restrained from any conduct which may inhibit the lawful exercise of the explorer’s rights of access pursuant to EPM 15278.
As regards EPM 14547, whilst the first notice of entry was validly made, the purported renewals of such notice in July 2007 were invalid and of no effect due to their failure to comply with s. 164 of the MRA. However, the explorer was entitled to deliver a fresh notice of entry as it did in August 2007 and, insofar as such fresh notice of entry may have been properly renewed pursuant to s. 164, the explorer may enter upon the subject land and conduct the activities set out in such notice. However, insofar as the explorer seeks to enter the land the subject of EPM 14547 with respect to a renewal notice not validly made pursuant to s. 164, such entry is unlawful. The explorer, however, is not restrained from issuing further notices of entry under s. 163, and validly renewing any such further notices of entry, at such time, and on such terms, consistent with the provisions of the MRA and the EPM, as the explorer considers appropriate.
Costs
Each party has sought orders that the other party pay their costs in this matter. Such costs include the reserved costs and, in particular, those costs reserved by Order 4 of my Orders of 20 May 2008.[90]
[90] See [2008] QLC 0092.
Given my reasons and conclusions set out above, the explorer has partly succeeded with respect to EPM14547, and has totally succeeded with respect to EPM 15278. It follows that, in my view, the landholder should pay 50% of the explorer’s costs, including reserved costs, in so far as such costs relate to EPM 14547, and that the landholder should pay 100% of the explorer’s costs, including reserved costs, in so far as such costs relate to EPM 15278.
Orders
1. As regards EPM 14547:
(A)It is declared that the Notice of Entry of 22 May 2007 was validly given pursuant to s. 163 of the Mineral Resources Act 1989 (“the MRA”);
(B)It is declared that the Notices of Renewal of 24 and 27 July 2007 were not validly given pursuant to s. 164 of the MRA and are invalid and of no effect;
(C)The applicant/explorer is restrained from entering the respondent/landholders property in reliance on the Notices of Renewal of 24 and 27 July 2007
(D)It is declared that the Notice of Entry of 13 August 2007 was validly given pursuant to s. 163 of the MRA
(E)It is declared that further Notices of Entry may be given pursuant to s. 163 of the MRA in the event that there is no current Notice of Entry or renewal thereof;
(F)Subject to order 1 (C), the respondent/landholder is restrained from any conduct which may inhibit the lawful exercise of the applicant/explorers rights of access pursuant to EPM 14547.
2. As regards EPM 15278:
(A)It is declared that the Notice of Entry of 2 October 2007 was validly given pursuant to s. 163 of the MRA;
(B)It is declared that the Notice of Renewal of 14 December 2007 was validly given pursuant to s. 164 of the MRA;
(C)It is declared that further Notices of Entry may be given pursuant to s. 163 of the MRA in the event that there is no current Notice of Entry or renewal thereof;
(D)The respondent/landholder is restrained from any conduct which may inhibit the lawful exercise of the applicant/explorers rights of access pursuant to EPM 15278.
3. The respondent/landholder pay 50% of the applicant/explorer’s costs, including reserved costs, in so far as such costs relate to EPM 14547.
4. The respondent/landholder pay 100% of the applicant/explorer’s costs, including reserved costs, in so far as such costs relate to EPM 15278.
P A SMITH
MEMBER OF THE LAND COURT