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Tribunal was required to consider in making its recommendation. There was no onus on the applicants to prove that the total economic, social and environmental benefits of the mine outweighed the total economic, social and environmental costs. Decision Kingham DP recommended the grant of the mining lease and environmental authority subject to various additional or amended conditions. MINING DISPUTE JURISDICTION D'Aguilar Gold Ltd v Gympie Eldorado Mining Pty Ltd [2005] QLRT 156 (Koppenol P) Mining ­ jurisdiction of Tribunal ­ whether claim "arising in relation to" mining or a mining permit ­ whether with respect to "possession of or other interest or share in" an exploration permit Background The respondent had entered into a written agreement with a seller, under which the respondent was granted various rights of use and enjoyment with respect to 6 sub-blocks on an exploration permit which was held by the seller. Subsequently, receivers and managers were appointed to the seller and they assigned the exploration permit to the applicant. A dispute emerged when the respondent proposed to exercise the rights conferred and the applicant maintained that it was the sole legal and beneficial owner of the 6 sub-blocks and was not bound by the agreement. The applicant sought orders to that effect, but the respondent argued that the matter was beyond the Tribunal's jurisdiction. Arising in relation to mining Section 363(1) of the Mineral Resources Act 1989 (MRA) provided that the Tribunal had jurisdiction to hear "proceedings arising in relation to" mining or mining tenements. In O'Grady v Northern Queensland Co Ltd,1 the holders of a mining lease agreed to sell an interest in it. When the sellers claimed that the agreement had been terminated, the buyer counterclaimed for a declaration that the purported rescission was invalid and for orders appointing a joint venture committee. Relevantly, the High Court held that the counterclaim was not an action "arising in relation to mining".2 The majority said that "arising in relation to" mining presupposes a direct connection between a presently existing action and mining or a mining tenement.3 The respondent submitted that the claim was simply a matter of contract law and statutory interpretation as to whether the agreement was valid, along the lines of the O'Grady counterclaim. The applicant argued that its claim concerned whether there had been a valid assignment of an interest in the exploration permit, making it a claim arising in relation to the permit. It was said

 1 2 3 Matt Black, BA, research officer to the presiding members, Queensland Land and Resources Tribunal. (1990) 169 CLR 356. Within a section of the Mining Act 1968 (Qld) which corresponded to section 363(1) of the MRA. O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, 367, 374, 375.


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that although questions of contract and property law were involved, numerous provisions of the MRA would have to be considered when determining the matter. Noting that mining contracts are not a discrete and different branch of the law,4 Koppenol P held that although the agreement concerned mining and a mining tenement, it was the capacity of the agreement to bind the applicant which was directly at issue. Applying O'Grady, the President held that the claim was about personal obligations under a contract and did not arise in relation to mining. With respect to possession of a permit The applicant also relied on s 363(2)(a) of the MRA, which gave the Tribunal jurisdiction to hear "proceedings with respect to ... the right to possession or other interest or share in" an exploration permit. However, Koppenol P observed that the present claim was about "rights of use and enjoyment". Thus, the claim was not one with respect to the right to possession of or other interest or share in the exploration permit, as required by s 363(2)(a). Decision Being satisfied that the claim clearly fell outside the Tribunal's jurisdiction, Koppenol P struck it out. ABORIGINAL CULTURAL HERITAGE MANAGEMENT PLANS Re Queensland Electricity Transmission Corporation Ltd (trading as Powerlink Queensland) and Bonner [2006] QLRT 8 (Koppenol P) Aboriginal cultural heritage management plan ­ application for approval ­ appointment of consultant ­ rate of remuneration for Aboriginal monitors Background The cultural heritage management plan related to a transmission line easement to supplement electricity supply to South-East Queensland. The area was within the respondents' native title claim and stretched 90km from Middle Ridge to Greenbank. The main issues in dispute were the engagement of a cultural heritage consultant and remuneration for monitoring activities. Cultural heritage consultant The applicant was prepared to fund the engagement of a consultant. It proposed that, failing agreement, the applicant would choose a consultant from a list of archaeologists nominated by Dr Prangnell, the director of the University of Queensland's archaeological services unit. The respondents proposed that they engage Dr Prangnell as the consultant. They suggested that s 68 of the Aboriginal Cultural Heritage Act 2003, which provided that an Aboriginal party could

4  WMC Resources Ltd v Leighton Contractors Pty Ltd (1999) 20 WAR 489, [42] (FC). Matt Black, BA, research officer to the presiding members, Queensland Land and Resources Tribunal.