Hopevale Aboriginal Council v Cape Flattery Silica Mines Pty Ltd

[1992] QCA 30

IN THE COURT OF APPEAL	[1992] QCA 030
SUPREME COURT OF QUEENSLAND

C.A. No. 324 of 1992

Before the Court of Appeal

The President
Mr Justice Davies

Mr Justice McPherson

BETWEEN:

HOPEVALE ABORIGINAL COUNCIL

Appellant

AND:

CAPE FLATTERY SILICA MINES PTY. LTD.

Respondent

JUDGMENT - THE COURT

Delivered the 23rd day of March, 1992

The appellant is the registered proprietor of an estate

in fee simple of freehold land which it holds under a Deed
of Grant in trust for the benefit of Aboriginal inhabitants.

The respondent held a Mining Lease No.2806 (formerly

Special Mineral Lease No.401) over an area of 6,422 hectares
forming part of the land for a term of seventeen years from

1 September 1974.

By a letter to the Minister for Resource Industries

dated 10 August 1990, the respondent requested the renewal
of the lease "... from the due expiry dat (sic), 31st August
1991, for a period of 21 years". The letter went on to
describe the boundaries of the surface area, a "total of

6,422 hectares", and continued:

"Within this area lies (sic) three unmined areas which
we would prefer to now remove from the lease, Portions
A,B and C, as per the enclosed sketches. Their

boundary descriptions are:

...
Hence total area requested is;

Present S.M.L.401	- 6422
Less Portion A	424.36
Portion B	349.44
Portion C	687.62 1461.42
Therefore	TOTAL 4961.58 Hectares

4962 HECTARES
_______________

_______________

... ."

The letter of 10 August enclosed a number of maps to

"assist with your consideration of this application",
including a "Cape Flattery Tenements Map" which depicted the
area of Special Mineral Lease 401 with the words "Mining
Lease Renewal Area" superimposed. A second map was enclosed
with the letter, containing the notation "Proposed Areas to
be Excluded from SML 401 boundaries (Shaded in Red) July
1990", depicted the portions A,B and C to which reference
was made in the letter. The letter concluded: "Hence on
this basis your kind considerations are respectfully
requested."

A letter dated 29th August, 1990 from the Director- General of the Department of Resources Industries to the respondent stated:

"Re: Mining Lease No.401 - Cooktown

I refer to your letter of 10th August, 1990 and advise
that to enable further consideration to be given to
this Application for Renewal, pursuant to section 26(1)
of the Mining Act 1968-1986, it will be necessary for
the lessee/s to satisfy the Honourable the Minister
that:-

(a)  You have observed and performed all the covenants and conditions contained in the Lease and on your part to be observed and performed.

(b)  You have complied with all the provisions of this Act applicable to you in respect of the mining lease in question; and

(c) You or a person whose title to the mining lease in
question is legally dependent on the continuance
of the mining lease is in lawful possession of the
mining lease.

This could be done by completing the attached
application for renewal form which also requires the

following information to be supplied:-

(i)	A description of the boundaries of any surface area applied for within the boundaries of the land described in the Lease; (which has already been supplied)
...

(iv) A sketch plan taken from or being part of a map

approved for the time being for use in the Mining
District by the Warden and setting out the
boundaries of the land applied for and of the land

in respect of which a right of way is applied for.

All boundaries or the surface area ... must be
described by accurately measured distances and compass

bearings on the ground.

...

If surface area of the land applied for is required it
is suggested to avoid further delays in the grant of
the Renewal, negotiations with the landholder with a
view to completing a compensation agreement should be
commenced. The completed compensation agreement should

be lodged with the Warden Cooktown for his approval.

... ."

The "application for approval form" referred to in the

letter was the form intended for use under the Mineral

Resources Act 1989-1990 which was about to come into effect.

On 1 September 1990, the Mining Act 1968 was repealed

and replaced by the Mineral Resources Act 1989-1990 and the
Mining Regulations 1979 were repealed and replaced by the
Mineral Resources Regulations 1990. In accordance with
clauses 3(1)(a) and 3(11) of the Second Schedule to the
Mineral Resources Act, an application for renewal of a
mining lease which remained undetermined when the Mineral
Resources Act 1989 came into effect was continued in force
if the application had been "duly made". No form of
application for renewal was prescribed by or under the
repealed Act and the appellant accepted that such an
application would have been made by letter.

The respondent replied to the letter of 29 August from

the Director-General by a letter to the Minister dated 14

September 1990 which commenced:

"In addition to our formal request for the renewal of
our Special Mining Lease No.401 (now changed to Mining
Lease 2806 Cooktown), ... which was forwarded to you on
10 August 1990, may we offer the following requested

information.

...

Enclosed is a completed copy of Application for Renewal
Mining Lease Form.

Herewith are detailed answers to Section 12 of this form.

...

In reply to your further questions relating to your letter of 29 August 1990, may we offer;

(i	DESCRIPTION OF BOUNDARIES, have been supplied 10 August 1990.
...

(iv SKETCH PLANS, Included with the 10 August 1990

application. However please find additional ones

herewith.

...

We hope these comments and contents are sufficient for your consideration ... "

A Tenements Map was enclosed which was broadly similar

to the Tenements Map enclosed with the letter of 10 August
but did not have the words "Mining Lease Renewal Area"

superimposed.

The Application for Renewal form which was also

enclosed substantially reflected the request made in the
letter of 10 August 1990 and made reference to that letter
at a number of points. The appellant emphasises, however,
that the area (and the surface area) stated in the
application for renewal form was 4962 hectares.

It is common ground that Mining Lease No.2806 expired

on 31st August 1991 without any other application for

renewal from the respondent.

By a writ of summons issued on 3rd March 1992, the

appellant sought a number of declarations which, for present
purposes, may be confined to a declaration that there is no
valid application for renewal of Mining Lease No.2806, and
ancillary injunctions. A motion for the declaration and
injunctions came before de Jersey J. in Chambers on 11 March
1992 when His Honour dismissed the motion with costs to be
taxed. No formal order was made dismissing the action but
that seems to be a necessary consequence since it was noted

that the application was for final relief.

On 13 March 1992, the appellant appealed to this Court

and the hearing of the appeal was expedited with the co-
operation of both parties. It is not in contest that, if
the appellant is successful on the appeal, it is entitled to

the relief sought in the writ.

The appellant submitted that, on its proper

construction, the letter of 10 August sought a further lease
of the entire area of the existing lease, but only of the
area of 4962 hectares, It relied, for this submission, on
the contents of the letter and its enclosures. Particular
attention was drawn to the following features of the letter

and enclosures namely:

(a) After reference to the three unmined areas,
portions, A,B, C, it was stated that the "total
area requested" was 4962 hectares, not the
existing area of 6,422 hectares;

(b)  One of the maps enclosed with the letter referred to"Proposed areas to be Excluded"; and

(c) The reference in the letter to consideration of
"application" was said to be an indication that
the letter was not a composite of separate
applications, an application for renewal and an
(informal) application for surrender of part of
the land in the meantime, but a single application
for "renewal" in respect of a reduced area.

Even if it were not for other aspects of the letter and

enclosures, the matters relied on by the appellant would
provide at most a very flimsy foundation for a conclusion
that the letter did not convey an intention to exercise the
right of renewal according to its terms but instead
indicated an intention to accept only a lease over a reduced
area when the existing lease expired. Indeed, were it not
for the statement in the letter that the "total area
requested" was the reduced area, the appellant's contention
would scarcely be arguable.

Whatever support the appellant can derive from all or any of the matters referred to is clearly insufficient for its purposes. Other, more compelling factors point in the opposite direction; for example:

(a)	the express request for renewal of the existing lease with which the letter of 10 August 1990 commences followed by the statement of the total existing area before any reference was made to a reduction of area;
(b)	the enclosed map with at least a general indication that the "Mining Lease Renewal Area" comprised the area of the existing lease; and
(c)	the tentative language used in relation to the proposal for reduction of the area "... areas which we would prefer to now remove ...".

It is immaterial for present purposes whether the

letter of 10 August 1990 included an informal application
for immediate surrender of part of the lease or a mere
inquiry concerning the possibility of such a step. Nor does
it really matter whether there is discernible an underlying
optimism on the part of the respondent that its expressed
preference for a reduction of the area would be acceded to.

What is important is that the letter adequately

communicated the respondent's decision to require the
renewal of the lease over whatever area it related to at the
time. Further, that is the sense in which it was understood
by the recipient Department, as is confirmed by the

Director-General's letter of 29 August in reply.

The appellant's further contention was that, if the

respondent's first letter of 10 August 1990 did not bear
the meaning for which it contended, that letter was
effectually varied by the subsequent letter of 14 September;
the second letter, or the two letters together, indicated
that, at least from the time of the second letter, the
application for "renewal" was in fact an application for a

new lease with a reduced area.

The appellant can point to little new in the

respondent's second letter except the statements in the
enclosed application for renewal form that the "Area" and
the "Surface Area" were 4962 hectares. However, these
details are of no more than marginal significance when the
form is put in context. When regard is had to the terms of
the three letters which were exchanged between the
respondent and the Department between 10 August and 14
September 1990, the respondent's second letter and the
enclosures cannot reasonably be regarded as more than an
elaboration of its first letter. The application for
renewal form was used by the respondents at the suggestion
of the Department as a convenient means of providing the
information requested by the Department. There was neither a
further application for renewal nor a variation of the
original application for renewal.

The appellants submissions cannot be accepted as to the

meaning and effect of the respondent's letters. The appeal
fails and must be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 324 of 1992

Before the Court of Appeal

The President
Mr Justice Davies

Mr Justice McPherson

BETWEEN:

HOPEVALE ABORIGINAL COUNCIL

Appellant

AND:

CAPE FLATTERY SILICA MINES PTY. LTD.

Respondent

JUDGMENT - THE COURT

Delivered the 23rd day of March, 1992

MINUTE OF ORDER:	Appeal dismissed with costs
CATCHWORDS:	MINES AND MINING- LEASE - CONSTRUCTION - Appeal from dismissal of application for declaration that there was no valid application for renewal of mining lease - whether respondent's letter adequately communicated intention to require renewal of lease - whether application for renewal valid.
Counsel:	J.D. Muir Q.C., with him B. Morris for the Appellant
P.C. Keane Q.C., with him A. Morris for the Respondent
Solicitors:	Messrs. Carter Newell for the Appellant Messrs. Clarke and Kann for the Respondent

Hearing date: 19th March, 1992
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 324 of 1992

BETWEEN:

HOPEVALE ABORIGINAL COUNCIL

Appellant

AND:

CAPE FLATTERY SILICA MINES PTY. LTD.

Respondent

The President
Mr Justice Davies

Mr Justice McPherson

Judgment of the Court

Delivered 23 March, 1992

Appeal dismissed with costs