Monto Coal 2 Pty Ltd v Monto Coal Action Alliance

[2024] QLC 14

LAND COURT OF QUEENSLAND

CITATION:

Monto Coal 2 Pty Ltd & Ors v Monto Coal Action Alliance & Anor [2024] QLC 14

PARTIES:

Monto Coal 2 Pty Ltd
(applicant)

Sanrus Pty Ltd

(applicant)

H & J Enterprises (Qld) Pty Ltd

(applicant)

v

Monto Coal Action Alliance

(objector)

Paul Stephenson
(objector)

FILE NO/s:

MRA593-23

DIVISION:

General

PROCEEDING:

Application for substitution of active objector

DELIVERED ON:

25 July 2024

DELIVERED AT:

Brisbane

HEARD ON:

19 July 2024

HEARD AT:

Brisbane

PRESIDENT:

PG Stilgoe OAM

ORDER/S:

1.     The application to substitute a party is refused.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – LAND COURT – PROCEDURE – where objector sought to substitute a mining lease objector who is an unincorporated association for a company – where objector relied on rule 69 of the Uniform Civil Procedure Rules 1999 – where objections were duly lodged by the unincorporated association – where the company was incorporated after the final day for objections and had not lodged an objection – where the objector contends that the substitution of the company would be necessary and desirable – where the Mineral Resources Act 1989 proscribes the Land Court from hearing objections and grounds of objections that were not duly lodged – whether the company can be substituted into the proceedings despite not having lodged an objection

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – LAND COURT – JURISDICTION AND POWERS – where applicant submitted that mining objections proceedings were not ‘proceedings’ for the purposes of rule 3 of the Land Court Rules 2022 – where rule 3 of the Land Court Rules 2022 provides that the Uniform Civil Procedure Rules 1999 applies where the Land Court Rules do not provide for a matter – where schedule 1 of the Land Court Rules 2022 defines a ‘proceeding’ as including a ‘recommendatory proceeding’ – where mining objections proceedings are recommendatory proceedings – whether the Uniform Civil Procedure Rules 1999 apply to mining objections hearings

Land Court Rules 2022 r 3, sch 1
Mineral Resources Act 1989 s 260, s 265, s 268
Uniform Civil Procedure Rules 1999 r 69

ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp [2002] 1 Qd R 347, applied
Eastpoint Mackay Pty Ltd v Mackay Regional Council [2012] QPEC 20, distinguished
Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MLJ 52, followed
R v Windridge, ex parte Pacific Coal Pty Ltd [1992] 2 Qd R 180, 191, applied
Symbolic Resources Pty Ltd v Kingham & Ors (2020) 5 QR 155, 186, applied

APPEARANCES:

TM Boys (solicitor), Holding Redlich
P Stephenson, objector (self-represented and on behalf of Monto Coal Action Alliance)

1. Monto Coal 2 Pty Ltd has applied for a mining lease (ML80175) to allow for the opencut mining of coal in Mulgildie, 12km south of Monto. Notice of the project was published on 31 October 2023, with the last day for objections being 28 November 2023.

1. Monto Coal Action Alliance, an unincorporated association, submitted an objection to the proposed lease on 28 November 2023. The Alliance is a party to this mining objection hearing as is Mr Paul Stephenson, who represents the Alliance.

1. Monto Coal Action Alliance Ltd, a not-for-profit organisation, was incorporated on 24 January 2024. It has applied to be substituted for the Alliance as an objector. Mr Stephenson submits that the company has the same objects as the Alliance, and that there will be no detriment to Monto Coal if it is substituted for the Alliance.  He says that the company represents parties who, for various reasons, were unable to lodge an objection or who could not continue with their own objections. He says that public notification of the proposed lease was only made available a few days before the date that submissions closed, and this made it difficult for interested parties to engage. I note, however, that Monto Coal advertised the proposal by a notice published on 31 October 2023[1].

   [1]A statutory declaration filed as attachment 8 to the Form 6A ‘Referral of Grant of Mining Lease Objections’ shows that the certificate of public notice was published publicly on 31 October 2023 until 28 November 2023.

1. I acknowledge the difficulties that community members have in complying with time limits and, generally, coming to grips with the mining objection process. However, for the reasons that follow, the application to substitute the company for the Alliance is refused.

1. The Alliance submitted that rule 69(1)(b) of the Uniform Civil Procedure Rules 1999 (UCPR) gives the Court jurisdiction to include, substitute, or remove a party. Rule 3 of the Land Court Rules2022 does provide that, if the Court’s rules do not provide for a matter in relation to a proceeding, the UCPR applies. The Land Court Rules do not provide for the substitution of a party. If the power exists, it is contained within rule 69 of the UCPR.

1. Monto Coal submits that a mining objection hearing is not a “proceeding” within the definition of the Land Court Rules. That submission is misconceived; the Schedule 1 dictionary to the Land Court Rules expressly states that “proceeding” includes a “recommendatory proceeding”.[2]

   [2]Land Court Rules 2022 sch 1.

1. The Alliance submits that the company’s presence is necessary[3] to enable the Court to adjudicate effectually and completely on all matters in dispute or, alternatively, that the company’s presence would be desirable, just and convenient[4] for the same reasons.

   [3]UCPR r 69(1)(b)(i).

   [4]Ibid r 69(1)(b)(ii)

1. Whether a person’s presence is necessary is determined by answering the question “will the person’s rights against or liabilities to any party to the proceeding in respect of the subject matter be directly affected by any order which may be made in the proceeding?”[5]

   [5]Pegang Mining Co Ltd v Choong Sam & Ors [1969] 2 MLJ 52.

1. I have no information as to the members of the Alliance. The members of the company purportedly include concerned local community members, farmers, and traditional owner groups[6]. Presumably, the members of the Alliance are similar – concerned members of the local community. The Alliance has not demonstrated how any person who is not, or cannot be, a member of the Alliance will have their rights or liabilities directly affected if the company is not substituted as a party.

   [6]T1-3, line 30 to line 40.

1. Whether the company’s presence would be desirable, just, and convenient is an easier test to meet but there are still significant hurdles.

1. In Eastpoint Mackay Pty Ltd v Mackay Regional Council[7] the Planning and Environment Court did allow the joinder of a local conservation group to an application to amend a condition of a preliminary development approval because that entity conducted the original appeal which resulted in a raft of conditions, including the condition the subject of the application. One of the reasons for the Court’s decision was that a matter to be considered was the community’s current awareness of the development approval and the community’s involvement in the decision-making provisions of the Sustainable Planning Act 2009[8].

   [7][2012] QPEC 20.

   [8]Ibid [19].

1. While it may be attractive to draw an analogy between the position of the community group in Eastpoint and that of the Alliance, there are more compelling reasons not to follow that precedent. Firstly, in Eastpoint there was no other way to involve the community in the decision-making process whereas the Alliance is already an active party.

1. More importantly, however, the terms of the Mineral Resources Act 1989 (MRA) make it clear that the objection hearing process is strictly controlled by reference to properly made objections.

1. Section 260(1) states that an entity may lodge an objection on or before the last objection day. The company did not exist at that time.

1. The chief executive must refer all properly made objections to the Land Court for hearing[9]. The Land Court must give notice of a date for hearing to a person who has lodged a properly made objection[10].

   [9]MRA s 265(5).

   [10]MRA s 265(7)(c).

1. A properly made objection is an objection lodged under s 260 that has not been withdrawn[11].

   [11]MRA s 265(11).

1. The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.[12] That means an objector cannot lead evidence on or be heard about any statutory criteria or any other matter that the Court must consider, that does not relate to their objection. The Court must strictly construe grounds of objection[13].

   [12]MRA s 268(3).

   [13]Symbolic Resources Pty Ltd v Kingham & Ors (2020) 5 QR 155, 186.

1. The Court must afford an objector the right to be heard[14] but only in relation to a ground of objection[15].

   [14]R v Windridge, ex parte Pacific Coal Pty Ltd [1992] 2 Qd R 180, 191.

   [15]ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp [2002] 1 Qd R 347, 351; 360-361.

1. The Alliance has its right to be heard under the MRA. The company did not have a properly made objection. There is nothing in the MRA that permits the rights of an objector to be transferred to another entity.

1. Because it is not an objector, the company has no right to be heard and it cannot acquire that right by substitution. Even so, I am confident that all the issues the community wants the Court to consider will, if contained within a properly made objection, be considered, and determined.

Orders

The application to substitute a party is refused.1.