People who object to mining leases in Queensland with no evidence to back up their concerns create difficulties for the Land Court and cause mining lease applicants considerable expense.
But how should mining companies deal with objections expressing concerns without any supporting evidence when they do arise?
The ability to object to a mining lease application using only ‘bald assertions’ or a series of unsubstantiated ‘concerns’ has been problematic for mining lease applicants for some time. It is especially acute when the objector elects to be a level 1 objector under the Land Court’s Practice Direction 7 of 2009.
Under this practice direction, objectors to mining leases must nominate their level of participation in an objection hearing. They have three choices:
- Level 1 Objectors who rely upon their notice of objection only and do not attend the hearing or make submissions;
- Level 2 Objectors who rely on their notice of objection, attend the hearing and make submissions at the end of the hearing; and
- Level 3 Objectors who rely on their objection, call evidence, cross-examine witnesses at the hearing and make submissions.
In the case of a level 1 objector, if their objection contains nothing more than bald assertions or a list of unsubstantiated concerns, then it’s akin to a “free hit” against the mining company.
While the level 1 objector can adopt a minimal approach by submitting their objections and playing no further role in the proceedings, the mining company faces a considerable impact as they must respond to each point of objection and may also need to provide additional evidence in response to the assertions (which can be difficult and time consuming depending on the breadth of the objections).
In addition, the mining company is deprived of the opportunity to cross examine the level 1 objector on their objections and evidence.
Even if the only objections made against a mining lease application are from level 1 objectors, a Land Court hearing is still required. A hearing necessitated only by level 1 objections which contain no supporting evidence puts the mining lease applicant to considerable expense and, where the objections are shown to be unfounded, delays the approval process.
However, mining companies can go some way towards defending themselves against unsubstantiated objections. The Land Court recently noted that any evidence that a mining lease applicant lodges in support of its application will be highly persuasive against bald assertions raised by an objector.
The Land Court also said that the force of an objection is diminished where it is expressed as a series of 'concerns' unsupported by evidence. Further, a request for more information expressed as an objection doesn’t of itself constitute evidence in support of an objection and could be considered a 'pre-emptive strike'.
The Court recognised that in some cases, a lack of familiarity with Land Court proceedings or financial constraints may inhibit an objector from properly presenting a case and may be why some objectors choose to be level 1.
However, where an objector is essentially using the law to take a free hit against a mining company, then it may be appropriate for the Land Court to consider the time delays and costs incurred by a mining company in dealing with objections of this nature.
So what can a mining company do when faced with objections that include only “concerns” or requests for further information or which fail to include any evidence to support the objections?
A mining company will still need to pursue its mining lease application through a Land Court hearing where there are objectors. This will involve responding to the objections and any evidence provided in support of the objections. But in light of the comments from the Land Court about the force of such objections, it may be the case that extensive rebuttal evidence may not be necessary.
If the objection does not state the grounds of objection or the facts and circumstances to support those grounds, then the mining company could seek to have the objection struck out on the basis that it is not a properly made objection and it should not have been referred to the Land Court. This may be particularly useful if the only objections to the mining lease application are level 1 objections of this nature. It may also be appropriate that a costs order against the objector be made.
Mining lease applicants should also try to engage with objectors with a view to resolving their objections, particularly where those objections are framed as ‘concerns’ or requests for further information.
Discussing concerns and providing requested information (where possible) may resolve an objection. Further, if after the discussions, an objector elects to pursue their objection and the objection is unsubstantiated or has no reasonable prospects of success, then a mining lease applicant could seek costs against that objector. This may give objectors pause for thought before embarking on a ‘free hit’ objection process.