Gregcarbil Pty Ltd v Backus (No. 2) - [2013] QLC 46

LAND COURT OF QUEENSLAND

CITATION: Gregcarbil Pty Ltd v Backus & Ors (No. 2) [2013] QLC 46

PARTIES:
Gregcarbil Pty Ltd
(Mining Lease Applicant)

v.

Cameron Backus and Michael Dolf Schmidt
(Objectors)

and

Chief Executive, Department of Environment and Resource Management
(Statutory Party)

and

Gregcarbil Pty Ltd
(Objector)

and

William James Crowther
(Landholder and Objector)

FILE NOs: MRA474-10, EPA606-10, EPA225-11, MRA229-11, MRA595-11, EPA596-11, EPA597-11 and MRA894-11

DIVISION: General Division

PROCEEDING: Hearing of Applications for Mining Leases and Environmental Authorities and Objections thereto

DELIVERED ON: 25 July 2013

DELIVERED AT: Brisbane

HEARD ON:

1, 2, 3 August 2011
19 October 2011
28, 29, 30 November 2011
19 April 2012
Matter formally reserved on 26 November 2012

HEARD AT: Emerald, Clermont and Brisbane

MEMBER: PA Smith

ORDERS:
1. I recommend the grant of MLAs 70419 and 70447 to the Honourable the Minister administering the MRA, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML.

2. I recommend to the Honourable the Minister administering the EPA that the draft EAs for MLA 70419 and MLA 70447 be issued, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML.

3.     The conditions which are appropriate to recommend for MLA 70419 and/or the EA thereto are those consistent with the observations in paragraphs 144, 171, 174, 208, 209, 225, 237, 259, 273 and 307 hereof.

4.     The conditions which are appropriate to recommend for MLA 70447 and the EA thereto are those consistent with my observations in paragraph 161, 171, 174, 183, 206, 209, 225, 237, 259, 273 and 328 hereof.

5.     The Statutory Party shall prepare, consistent with orders 3 and 4, fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 6 August 2013.

6.     In the event that any party considers that the draft EAs prepared by the Statutory Party are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 13 August 2013.

7.     Gregcarbil shall prepare a schedule of Special Conditions for MLA 70419 and MLA 70447 dealing with all remaining conditions which the Statutory Party has not included in the fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 8 August 2013.

8.     In the event that any party considers that the Special Conditions prepared by Gregcarbil are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which Special Conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 15 August 2013.

9.     In the event that any party provides a Notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gregcarbil Pty Ltd v Backus (No. 2)

Details

AGLC: Gregcarbil Pty Ltd v Backus (No. 2) [2013] QLC 46
Case: [2013] QLC 46
Decision Date: 25 July 2013

CaseChat Overview and Summary

The case of Gregcarbil Pty Ltd v Backus (No. 2) involved an application for a mining lease by Gregcarbil Pty Ltd, which was opposed by Mr Backus. The dispute was heard by the Queensland Land Court, which was required to make a recommendation to the responsible Ministers regarding the grant of the mining lease and environmental authority, while assuming the proposed mining operations would be conducted lawfully. The court needed to balance the objectives of the Mineral Resources Act 1989, which aims to facilitate mining, with those of the Environmental Protection Act 1994, which aims to protect the State's environment.

The court had to decide several legal issues, including whether there was a defect in the form of Gregcarbil's application that rendered it invalid, and whether the objector was prejudiced by this defect. The court also had to consider the application of the precautionary principle in framing its recommendation to the Minister, the meaning of certain terms in the application, the sufficiency of the evidence provided, and the role of the Land Court in the mining lease application process. Furthermore, the court had to consider the relevance of a related proceeding in the Planning and Environment Court, which was concerned with the remediation of a previous lease held by a third party.

The court found that the defect in the form of the application did not render it invalid, as it did not prejudice the objector. The court also found that the application of the precautionary principle was relevant to the environmental sensitivity of the proximity of the mining operations to an Endangered Regional Ecosystem. The court criticised the practice of supplying additional material on a piecemeal basis throughout the hearing, as it added to the complexity of the hearing. The court found that the evidence provided was sufficient, and that the role of the Land Court was to make a recommendation to the responsible Ministers, assuming the proposed mining operations would be conducted lawfully. The court found that the related proceeding in the Planning and Environment Court was not a consideration in this case.

The court recommended the grant of the mining leases and environmental authorities, subject to certain conditions, which were set out in the decision. The court also made orders regarding the preparation of fresh draft environmental authorities, the resolution of disputes regarding the conditions, and the determination of compensation. The court found that the application for the mining lease and environmental authority should be recommended to the Ministers, subject to the conditions set out in the decision. The court also found that the evidence provided was sufficient, and that the application should not be invalidated on the basis of the defect in form.

Orders

Orders of the court

1. I recommend the grant of MLAs 70419 and 70447 to the Honourable the Minister administering the MRA, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML.

2. I recommend to the Honourable the Minister administering the EPA that the draft EAs for MLA 70419 and MLA 70447 be issued, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML.

3. The conditions which are appropriate to recommend for MLA 70419 and/or the EA thereto are those consistent with the observations in paragraphs 144, 171, 174, 208, 209, 225, 237, 259, 273 and 307 hereof.

4. The conditions which are appropriate to recommend for MLA 70447 and the EA thereto are those consistent with my observations in paragraph 161, 171, 174, 183, 206, 209, 225, 237, 259, 273 and 328 hereof.

5. The Statutory Party shall prepare, consistent with orders 3 and 4, fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 6 August 2013.

6. In the event that any party considers that the draft EAs prepared by the Statutory Party are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 13 August 2013.

7. Gregcarbil shall prepare a schedule of Special Conditions for MLA 70419 and MLA 70447 dealing with all remaining conditions which the Statutory Party has not included in the fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 8 August 2013.

8. In the event that any party considers that the Special Conditions prepared by Gregcarbil are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which Special Conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 15 August 2013.

9. In the event that any party provides a Notice to the Court and each party under either orders 6 or 8 hereof, the dispute shall be resolved at a hearing of the Land Court to occur at 10.00am on 20 August 2013.

10. Any party seeking any orders as to costs of the substantive hearing of the applications for MLA 70419 and MLA 70447 and their respective EAs, and objections thereto, are to file and serve their submissions by 4.00pm on 9 August 2013.

11. Any response submissions on costs are to be filed and served by 4.00pm on 16 August 2013.

12. Any reply submissions on costs may be filed and served by 4.00pm on 19 August 2013.

13. Any application for costs of the substantive hearing shall be heard by the Land Court at 10.00am on 20 August 2013.

14. As regards the determination of compensation for MLA 70419 and MLA 70447, should either party wish to have further evidence presented to the Court in light of this decision, such party is to provide a Notice to the other party, and to the Court, detailing the nature of the further evidence to be adduced and the likely time requirements for such evidence by 4.00pm on 16 August 2013.

15. The determination of compensation with respect to MLA 70419 and MLA 70447 is otherwise set down for review and directions at not before 10.00am on 20 August 2013 for the purpose of timetabling the receipt of further evidence (if necessary) and submissions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The positions of Mr Backus and Mr Schmidt were summarised by Mr Backus in the following way: “5. ConclusionIn light of these inconsistencies in evidence, it would be appropriate to attribute no weight to any evidence given by Mr and Mrs Graham.The fact that Gregcarbil corrupted the mediation process by submitting misleading, off the record, without prejudice statements in the form of an affidavit to the Planning and Environment court, should weigh heavily, and is the reason why the mediation process was halted.The parcel of land that GREGCARBIL has outlined in their application for a mining lease lies in the flood affected areas of Policeman Creek. It can be seen that past mining in this same area done by AUSTRALIS has and continues to cause enormous environmental damage to this catchment. Every time Policeman Creek floods more subsoil from their mining operations is washed down stream affecting more and more of our property and the Fitzroy Catchment.No rehabilitation has been done by AUSTRALIS, and opening more ground in this flood affected area will only compound an already disastrous environmental problem. Due to its location between Policeman and Retreat Creek, it is inaccessible for a large portion of the year, making the control of erosion and weeds caused by disturbing the ground, very difficult.To resolve this matter, I would like to see no more mining done in this flood affected area. Evidence shows that it should not have been allowed in the past and with the benefit of hindsight, would be grossly negligent to allow it in the future.Gregcarbil’s MLA’s over this area are standing in the way of the Planning and Environment Court ordering the rehabilitation of the AUSTRALIS disturbance by its directors. This has been dragging on for more than six years and the pending P & E court order is the best outcome for getting this category B environmentally sensitive area returned to a non-polluting state.Gregcarbil’s MLA’s and Environmental Authorities appear to have been deliberately misleading, do not treat this environmentally sensitive area with the respect it deserves, and for these reasons should not be granted.” It is pertinent to note at the outset that the EPA has undergone significant amendment subsequent to the hearing of these matters, and that those amendments directly relate to the objection process under the EPA. The significant amendments commenced on 31 March 2013.[3] For the purposes of this decision, s.683 of the EPA (as currently enacted) provides that the previous provisions of the EPA, under former Chapter 5, apply to these matters. Accordingly, the provisions which relevantly commenced on 31 March 2013 are to be ignored. All further references in this decision to the EPA will be to those provisions from the former Chapter 5 of the EPA.[3] See Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 No. 16. As discussed earlier, pursuant to the provisions of the EPA, Mr Crowther was made a party to the proceedings relating to the environmental objections under the EPA to MLA 70419. I understand that this is the first instance that any person has been made a party under these provisions.

Ratio Decidendi

Legal Principle Established

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CITATION:	Gregcarbil Pty Ltd v Backus & Ors (No. 2) [2013] QLC 46
PARTIES:	Gregcarbil Pty Ltd (Mining Lease Applicant)
v.
Cameron Backus and Michael Dolf Schmidt (Objectors) and Chief Executive, Department of Environment and Resource Management (Statutory Party) and Gregcarbil Pty Ltd (Objector) and William James Crowther (Landholder and Objector)
FILE NOs:	MRA474-10, EPA606-10, EPA225-11, MRA229-11, MRA595-11, EPA596-11, EPA597-11 and MRA894-11
DIVISION:	General Division
PROCEEDING:	Hearing of Applications for Mining Leases and Environmental Authorities and Objections thereto
DELIVERED ON:	25 July 2013
DELIVERED AT:	Brisbane
HEARD ON:	1, 2, 3 August 2011 19 October 2011 28, 29, 30 November 2011 19 April 2012 Matter formally reserved on 26 November 2012
HEARD AT:	Emerald, Clermont and Brisbane
MEMBER:	PA Smith
ORDERS:	1. I recommend the grant of MLAs 70419 and 70447 to the Honourable the Minister administering the MRA, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML. 2. I recommend to the Honourable the Minister administering the EPA that the draft EAs for MLA 70419 and MLA 70447 be issued, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML. 3. The conditions which are appropriate to recommend for MLA 70419 and/or the EA thereto are those consistent with the observations in paragraphs 144, 171, 174, 208, 209, 225, 237, 259, 273 and 307 hereof. 4. The conditions which are appropriate to recommend for MLA 70447 and the EA thereto are those consistent with my observations in paragraph 161, 171, 174, 183, 206, 209, 225, 237, 259, 273 and 328 hereof. 5. The Statutory Party shall prepare, consistent with orders 3 and 4, fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 6 August 2013. 6. In the event that any party considers that the draft EAs prepared by the Statutory Party are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 13 August 2013. 7. Gregcarbil shall prepare a schedule of Special Conditions for MLA 70419 and MLA 70447 dealing with all remaining conditions which the Statutory Party has not included in the fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 8 August 2013. 8. In the event that any party considers that the Special Conditions prepared by Gregcarbil are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which Special Conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 15 August 2013. 9. In the event that any party provides a Notice…