Queensland Land Court strikes out frivolous objection to Hail Creek mining lease application

What you need to know

• The Land Court has struck out an objection to the grant of a mining lease on the ground that it was frivolous. 
• An objection may be struck out under the Mineral Resources Act 1989 (Qld) if it is frivolous or vexatious.  It does not need to be both.
• If an objection is struck out, the Court is not otherwise required to consider the statutory criteria in s 269(4) of the Mineral Resources Act 1989 (Qld) and make a recommendation to the Minister about the application. 

What you need to do

• Recognise that objections may be struck out as being either frivolous (made without reasonable grounds) or vexatious (made purely to annoy or trouble).
• Consider whether objections to mining lease applications have any reasonable grounds or whether any such grounds are likely to be discovered in expert reporting. 

Background

This case concerns a mining lease application made by Hail Creek Coal Holdings Pty Ltd and other mining companies (Miners) over land held under a pastoral lease by a landholder.  The mining lease would authorise the use of the land for an accommodation camp which had otherwise been operating on the site since 2003.

One of the landholder's objections to the mining lease application was that: "the mining lease should not be granted because, taking into consideration the current and potential future uses of the land, the proposed mining operation is not an appropriate land use." 

The Application

The Miners sought to strike out this objection as frivolous or vexatious.  President Kingham noted that the Land Court's power to make such an order comes from section 267A(1)(b) of the Mineral Resources Act 1989 (Qld) (MRA) and not the Uniform Civil Procedure Rules 1999 (Qld).

The court clarified that an objection is frivolous when it is made without reasonable grounds, and vexatious when it is made purely to annoy or trouble the other side.  An objection may be struck out if it is frivolous or vexatious; it does not need to be both. 

The effect of striking out the landholder's objection would be to prevent them leading evidence about the appropriateness of using the land as a mining camp, and the Court otherwise considering the statutory criteria in s 269(4) of the MRA. Therefore, the court noted that it would be approaching the application cautiously.

The Court's Reasoning

Was the objection vexatious? 

On the evidence before it, discussed further below, the court could not conclude that the landholder had brought the objection purely to annoy or trouble.  Therefore, the objection was not vexatious, despite its effect being to vex the Miners.

Was the objection frivolous?

After certain supporting facts and circumstances were abandoned, the landholder's objection narrowed to the issue of the impact of the mining camp on surface and groundwater.  The objection did not identify any specific impact on water caused by the camp.

The landholder's legal advisor drafted the objection with what the court regarded as a "troublesome" lack of clarity.  This resulted in the Miners requesting further and better particulars in order to understand the objection. The landholder's response was to the effect that the Miners had not provided sufficient evidence that the camp will not cause unacceptable impacts to surface and groundwater.

However, the response still did not identify a specific impact on water caused by the camp.  The court considered the fact that as the camp had already been operating for many years on the land, it would be reasonable to expect more specificity about the nature and source of the landholder's concerns.

This lack of detail left the Miners having to guess the substance of the assertions against them – a position which has previously led to objections being struck out as frivolous.

Was the application made prematurely? 

Counsel for the landholder argued that the court cannot assess the merits of the strike out application until expert reports have been received.

However, the court noted that experts frame their investigation on the basis of objections. Given the lack of detail in the objection, a wholesale investigation of the potential impacts of the mining camp on surface and groundwater would be required.

The court was not convinced that this broad investigation should be undertaken. The camp's operation had already been considered by the local authority in granting a development approval and by the Department of Environment and Science in extending an existing environmental authority over the land.

In light of these previous investigations and the landholder's inability to point to any impacts beyond facts "so vague as to be meaningless", the court determined that it did not need to receive expert reports before striking out the objection as frivolous.

Effect of striking out application

Once an objection to a mining lease application is made, the court must then consider the statutory criteria under s 269(4) of the MRA.   After hearing all relevant matters, the court must then provide copies of all objections, and a recommendation regarding the grant of the mining lease, to the Minister to ultimately decide the application. 

However, once an application is struck out, the court is no longer required to consider the statutory criteria nor make a recommendation to the Minister regarding the grant of the mining lease. 

In the absence of any objections, the mining lease application can then proceed to be  decided by the Minister without further Land Court involvement. 

Authors:  Libby McKillop, Senior Associate and Thomas Kent, Graduate.