LAND COURT OF QUEENSLAND
CITATION: Donovan v Struber & Ors [2011] QLC0045 PARTIES: Gary Awarua Donovan
(applicant)v. Stephen Roy Struber and Dianne Rose Wilson-Struber
(respondent)Chief Executive, Department of Environment and Resource Management (previously known as the Environmental Protection Agency)
(Statutory Party)FILE NO:
MRA137-10, EPA209-10, MRA631-10, MRA352-09, EPA351-09, MRA350-09, MRA354-09, EPA353-09, MRA357-09, MRA356-09, EPA355-09, and MRA358-09.
DIVISION: General Division PROCEEDING: Applications for declarations and determination of preliminary points DELIVERED ON: 22 July 2011 DELIVERED AT: Brisbane HEARD AT: Mareeba/Atherton MEMBER: His Honour: Mr PA Smith ORDERS: 1. As regards the declarations sought by the miner, that is that:
“(a) The Environmental Authority Application (‘the relevant application’) filed with the Mining Registrar on 30 October 2008 in all respects complies with the requirements of s.154 of the Environmental Protection Act 1994 (“the EPA Act”), or alternatively;
(b) The relevant application substantially complies with the requirements of s.154 of the EPA and such substantial compliance is sufficient for the purposes of the EPA in accordance with s.49 of the Acts Interpretation Act 1954;
(c) The respondents’ grounds of objection contained in the Objection Form filed on 5 August 2009 are:
(i) The only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the Mineral Resources Act 1989 (“the MRA”);
(ii) The only current objections accepted by the administering authority and referred to the Court in accordance with Chapter 5 Part 6 Divisions 6 and 7 of the EPA.”
ANSWER: I decline to make the declarations sought in (a) and (b). As regards (c)(i), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the MRA.
As regards (c)(ii), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only properly made objections referred to the Court in accordance with s.217(2) of the EP Act. It is further declared that the two letters dated 31 July 2009 are objections pursuant to s.217(3) of the EP Act.
2. As regards the preliminary point or significant issue sought to be decided by the miner, vis:
“Whether the respondents’ grounds of objection in the Objection Form filed on 5 August 2009 pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.”
ANSWER: The landholders grounds of objection filed on 5 August 2009 do not pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.
3. As regards the preliminary point (a) as formulated by the Statutory Party, which effectively repeat those sought by the landholders question, which asks:
“Whether the Land Court has jurisdiction to hear and determine an objections decision…
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- AGLC
- Donovan v Struber [2011] QLC 45
- Case
- [2011] QLC 45
- Decision Date
CaseChat Overview and Summary
The court first addressed the jurisdiction of the Land Court to hear objections under the EP Act, determining that it had the authority to do so. It dismissed the argument that the objections were not properly made or were invalid due to procedural issues such as incomplete forms and non-compliance with statutory requirements. The court clarified that the objects of the EP Act, which aim to protect the environment while allowing for ecologically sustainable development, were vastly different from those of the MRA, which focus on facilitating the mining of state resources.
The court then examined the nature and scope of the objections raised by the respondents. It found that the objections were not limited to past performance but encompassed broader concerns about the potential environmental harm of the mining activity. The court held that the respondents' grounds of objection filed on 5 August 2009 and 21 May 2010 were the only properly made objections referred to the court under both the MRA and the EP Act. The court concluded that the objections were valid and relevant to the application.
The court declined to make declarations regarding the compliance of the application with the EP Act or to limit the objections to matters of past performance. It also dismissed the application for certain preliminary points raised by the parties. The court ordered that the matters be set down for a review and directions hearing in Brisbane and directed the parties to prepare for a full hearing over five days starting on 24 October 2011.
Orders
Orders of the court
1. As regards the declarations sought by the miner, that is that:
“(a) The Environmental Authority Application (‘the relevant application’) filed with the Mining Registrar on 30 October 2008 in all respects complies with the requirements of s.154 of the Environmental Protection Act 1994 (“the EPA Act”), or alternatively;
(b) The relevant application substantially complies with the requirements of s.154 of the EPA and such substantial compliance is sufficient for the purposes of the EPA in accordance with s.49 of the Acts Interpretation Act 1954;
(c) The respondents’ grounds of objection contained in the Objection Form filed on 5 August 2009 are:
(i) The only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the Mineral Resources Act 1989 (“the MRA”);
(ii) The only current objections accepted by the administering authority and referred to the Court in accordance with Chapter 5 Part 6 Divisions 6 and 7 of the EPA.”
ANSWER: I decline to make the declarations sought in (a) and (b). As regards (c)(i), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only duly lodged and properly made objections referred to the Court in accordance with Part 7 of the MRA.
As regards (c)(ii), it is declared that the respondents’ grounds of objection contained in the Objection Forms lodged with the Mining Registrar on 5 August 2009 and 21 May 2010 are the only properly made objections referred to the Court in accordance with s.217(2) of the EP Act. It is further declared that the two letters dated 31 July 2009 are objections pursuant to s.217(3) of the EP Act.
2. As regards the preliminary point or significant issue sought to be decided by the miner, vis:
“Whether the respondents’ grounds of objection in the Objection Form filed on 5 August 2009 pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.”
ANSWER: The landholders grounds of objection filed on 5 August 2009 do not pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.
3. As regards the preliminary point (a) as formulated by the Statutory Party, which effectively repeat those sought by the landholders question, which asks:
“Whether the Land Court has jurisdiction to hear and determine an objections decision under the EP Act and, for the purposes of deciding this question, whether:-
(i) The application for the environmental authority lodged by the applicant is valid; and
(ii) The notice of decision for the draft environmental authority (mining lease) is valid;”
ANSWER: The Land Court has jurisdiction to determine the objections referred by the Mining Registrar under the EP Act on 7 August 2009 and 25 May 2010. I decline to otherwise answer the question.
4. As regards the preliminary point (b) as formulated by the Statutory Party, which repeats those sought by the landholders and the miner, which asks:
“Whether the respondent’s grounds of objection contained in the objection form filed on 5 August 2009, relates only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.”
ANSWER: The landholders` grounds of objection filed on 5 August 2009 do not pertain only to matters of past performance of the applicant in accordance with s.268(4)(g) of the MRA.
5. These matters are set down for Review and Directions in Brisbane on Thursday, 11 August 2011, at 2:30 pm. Parties not present in Brisbane may attend by telephone.
6. The parties are directed to attend the Review and Directions with a timetable aimed at concluding the hearing of these matters over 5 days commencing 24 October 2011 in Mareeba/Atherton or Cairns or other suitable location.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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