Abolition of Queensland's Land and Resources Tribunal

By Mark Geritz and James Minchinton.

Key Points:
Project proponents may need to factor potential delays into planning timeframes until the operation of the new regime has had time to establish itself.

Recent legislation in Queensland has been introduced with the purpose of conferring upon the Land Court most of the jurisdiction of the Land and Resources Tribunal ("LRT").

This new legislation does not change the current regulatory regime that resource project proponents are required to navigate to develop their projects. It does however, change the decision-making bodies and potentially the procedures those bodies will use to reach their decisions. The changes therefore could impact on timing issues for project proponents. Project proponents may need to factor these potential delays into planning timeframes until the operation of the new regime has had time to establish itself.

New jurisdiction of the Land Court

The Land Court now has jurisdiction over all new proceedings in relation to mining and petroleum matters and it will also inherit all existing proceedings already before the LRT. For that purpose, the Land Court has all the powers of the LRT.

The key issues that this judicial reshuffle will have on project proponents in Queensland are:

• Given that the Land Court has a wider jurisdiction than that of the LRT, proceedings before the Land Court may take longer to be heard than similar proceedings previously before the LRT. This will depend upon the resourcing and internal organisation of the Land Court.
• While neither the LRT nor the Land Court are bound by the rules of evidence and are entitled to inform themselves in the way they consider appropriate when conducting proceedings, there is no requirement for the Land Court, as there is for the LRT, to act quickly.
• The LRT had established practice directions and undertaken general practices such as the calling of directions hearings promptly upon receipt of applications or other originating documentation with a view to ensuring the handling of matters as quickly as possible. It is not yet clear whether the Land Court will adopt similar procedures for mining and petroleum matters.
• It is not clear how the Land Court will manage the transition of matters presently before the LRT and in particular, whether such a transition could cause a delay in those proceedings.
• Except for any members from the LRT who become members of the Land Court, Land Court members will not (at the commencement of the new legislation) necessarily have the skills, knowledge and experience of resource project development that has accumulated in the LRT.

Residual jurisdiction of the LRT

The LRT retains a very limited jurisdiction relating to the Alternative State Provisions. The Alternative State Provisions jurisdiction relates to proceedings concerning applications under the Mineral Resources Act 1989 (Qld) which were lodged on or before 31 March 2003 and to which the native title (mining) provisions apply. There is only a finite number of such applications and on the expiry of the last such application, the LRT will cease to have any jurisdiction.

Cultural heritage jurisdiction

The Land Court has also inherited the jurisdiction that the LRT had over cultural heritage under the Aboriginal Cultural Heritage Act 2003 and the Torres Strait Islander Cultural Heritage Act 2003 and the jurisdiction that the LRT had in relation to Indigenous Land Use Agreements and certain other native title matters under the Native Title Act 1993 (Cth).

Practically, this amendment will mean that the Land Court now has two separate jurisdictions - the general division and the cultural heritage division. To assist with the establishment of the cultural heritage division, the new legislation provides for the appointment of Indigenous assessors to the Land Court. The Land Court will have the same powers of the Supreme Court when exercising jurisdiction under the cultural heritage division.

Thanks to Cheriden Farthing for her help in writing this article.

For further information, please contact Mark Geritz and James Minchinton.