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Focus: Resources – September 2007Qld's Land & Resources Tribunal amalgamated with the Land CourtIn brief: New
legislation just passed by the Queensland Government effectively abolishes the
Land & Resources Tribunal and confers its existing jurisdiction on the Land
Court. Partner Ben Zillmann
BackgroundThe Land Court and Other Legislation Amendment Act 2007 (Qld) (the Amending Act) has been passed by the Queensland Parliament and was assented to on 29 August 2007. The primary purpose of the Act is to merge the Land and Resources Tribunal (the Tribunal) with the Land Court by conferring the Tribunal's jurisdiction upon the Land Court. Although the Amending Act was assented to on 29 August, only a small number of provisions relating to alternative positions to be offered to existing members of the Tribunal took effect on assent. The primary operative provisions of the Amending Act detailed below do not come into force until a date to be fixed by proclamation. The primary purpose of the Amending Act is to expand the jurisdiction of the Land Court by effectively abolishing the Land & Resources Tribunal as it currently exists and conferring the Tribunal's jurisdiction upon the Land Court. The Tribunal retains only limited jurisdiction to deal with existing native title proceedings that were commenced before 31 March 2003 under the former 'Alternative State Provisions'. The Explanatory Memorandum states that the reason for the Amending Act is that the Tribunal has not had a sufficient workload to justify the resources allocated to it, and government has considered that access to the overall judicial system could be improved by allocating the Tribunal's resources elsewhere.
New Land Court powers and divisionsThe Amending Act will create two divisions in the Land Court; the general division, dealing with the Land Court's existing jurisdiction and most of the jurisdiction transferred from the Tribunal, except for cultural heritage and certain native title matters, which will be dealt with by a new division in the Land Court called the Cultural Heritage Indigenous Land Use Agreement Division. The Land Court's general division will now deal with all applications that were previously directed to the Tribunal under the following legislation:
The Tribunal will continue to operate only to the extent that it is necessary to deal with the native title matters that arose within the scope of its jurisdiction prior to 31 March 2003 and the Tribunal will not have any permanent presiding members allocated to it. The Act specifically provides that the Land Court will have all the powers of the Supreme Court and can grant any relief or remedy and make any order, in the same way as the Supreme Court would in similar proceedings.
New Cultural Heritage ILUA DivisionThe new Cultural Heritage Indigenous Land Use Agreement Division will exercise the jurisdiction of the Land Court in all matters arising under the Aboriginal Cultural Heritage Act 2003 (Qld) and the Torres Strait Islander Cultural Heritage Act 2003 (Qld). The Land Court now has jurisdiction to hear applications for an injunction to stop an act which is, or is likely to, impact on Aboriginal cultural heritage. The Cultural Heritage ILUA Division will also have a limited native title jurisdiction in respect of the following matters:
Transitional provisions and arrangementsFor existing proceedings currently before the Tribunal that have not been finalised and which would now be proceedings commenced in the Land Court, transitional provisions in the Amending Act provide that the Land Court will have jurisdiction to finish the proceedings as if those proceedings were Land Court proceedings. In 'transferred' proceedings, the Land Court will have all the powers of the Tribunal and the Amending Act provides for the President of the Land Court to give any necessary directions about how the proceeding is to be dealt with, including whether a matter is to be heard afresh entirely or in part, and whether any records of the Tribunal or any evidence, materials or submissions before the Tribunal should be taken to be part of the proceedings of the Land Court. The President will make decisions about what material will be included in the Land Court proceedings on a case-by-case basis. As it is not automatic that all records and evidence put before the Tribunal will be considered to form part of the Land Court proceedings, in some cases parties may have to have their matters reheard in full or in part by the Land Court. While the Land Court will acquire the jurisdiction of the Tribunal, once the proceedings come before the Land Court they will be governed by its internal rules and procedures. The most notable difference between the Land Court and the Tribunal is the appeal process. In the Land Court, a party can seek a 'rehearing' of a matter as well as appealing against a decision to the Land Appeal Court. As with the Tribunal, an appeal can be made to the Court of Appeal on a question of law. The current Deputy President and Mining Referee of the Tribunal are to be offered new positions in the Land Court. The current President of the Tribunal, however, is expected to be appointed as a judge of the District Court.
ConclusionTime will tell as to how substantial the effects will be from the Land Court
taking over the Tribunal's jurisdiction, but in general terms the changes should
not be significant. Certainly, the Tribunal's availability to hear and determine
matters quickly was a feature well appreciated by the parties involved
(particularly the resources industry) and the main practical consideration that
arises from the new legislation is whether the Land Court, with its broader
jurisdiction, will have the same capacity to determine matters within similar
timeframes.
For further information, please contact:
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