The Queensland government is seeking to retrospectively validate more than 900 mining tenures after “administrative deficiencies” allowed many to operate without an “instrument of lease”, which one leading lawyer compares to mining under “a handshake deal”.
- The Queensland government has introduced a bill to retrospectively validate more than 900 mining leases, hundreds of which were not issued as hard-copy “instruments of lease”
- Its Department of Resources says it is an administrative change and that all leases have always been considered valid
- However, one leading environmental lawyer says it is “an unbelievable stuff-up”
In June, the Resources and Other Legislation Amendment Bill 2021(ROLA Bill 2021) was introduced into Queensland parliament and a report by the committee is due today.
That bill seeks “to clarify the legal standing of certain historically granted tenures” under the Mineral Resources Act 1989 and the Petroleum Act 1923.
“The Department of Resources has identified there were 86 mining leases for coal and 847 mining leases for other minerals that have one of the following or both administrative deficiencies: Firstly, the minister did not recommend the issuing of the lease; secondly, the instrument of lease was not issued to the holder,” Resources Minister Scott Stewart said when introducing the bill.
Up until 2010, the minister was required to “make a recommendation to the governor-in-council that an instrument of lease be issued”.
“My department is aware of some grants where the minister of the day did not include the recommendation to issue the instrument of lease to the governor-in-council,”Mr Stewart said.
“New holders were sent letters advising of the grant of the lease, including conditions, and were able to request an instrument of lease if they required it.”
Mr Stewart said that these “administrative deficiencies cast some doubt on the validity of these mining leases”.
Dr Chris McGrath is a barrister who has built his career around environmental law and litigation involving resources and mining.
“It’s just an unbelievable stuff-up by the government and the resources sector,” he said.
A spokesperson for the Queensland Department of Resources said the changes were purely administrative and gave no new rights to the proponents nor government.
“The Resources and Other Legislation Amendment Bill 2021 is to clarify administrative requirements for mining and petroleum tenures under the Mineral Resources Act 1989 and Petroleum Act 1923,” they said.
But Dr McGrath said there could be potential future legal arguments made.
“I think it does create potential significant problems for enforcement around mining leases and the associated environmental authorities linked to them,” Dr McGrath said.
He cited two legal precedents where there were arguably “administrative deficiencies”.
In 2002, there was the case of Queensland Coal Pty Ltd v Shaw, a successful challenge to a coal mining lease that “by omitting any express limitation as to depth” was deemed by the judge to be “invalid”.
There was also the case of Forrest & Forrest Pty Ltd v Wilson in 2017, a successful appeal against a West Australian mining lease application that was deemed to be “non-compliant” because not all information was disclosed when it was submitted.
This case was also cited in the recent successful High Court appeal by a group of landholders against the New Acland coal mine expansion.
Mining lease ‘too burdensome’ to find
In its submission to the committee reviewing the ROLA Bill 2021, the Environmental Defenders Office (EDO) said in the course of its work it had frequently been refused access to mining tenure documents.
One of the cases the EDO is part of is an ongoing investigation into alleged illegal mining in part of the New Acland coal mine near Toowoomba, according to EDO managing lawyer Revel Pointon.
The ABC has been told by the Queensland Department of Resources that the investigation into the New Acland coal mine is unrelated to the ROLA Bill 2021.
However, Ms Pointon said the amendments the Queensland government was seeking pointed to a bigger problem.
“Essentially, this highlights a really worrying disregard for the legislation that our government is supposed to be upholding and, particularly, this lax approach to regulation around an industry that’s arguably having the biggest impact on Queensland,” she said.