Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd & Anor [2015] QLC 44 (2015) 36 QLCR 335

LAND COURT OF QUEENSLAND CITATION: Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd & Anor [2015] QLC 44 PARTIES: Byerwen Coal Pty Ltd (applicant) v Colinta Holdings Pty Ltd (first objector) and Glencore Coal Queensland Pty Ltd (second objector) FILE NOs: MRA423-14 MRA424-14 MRA425-14 MRA426-14 DIVISION: General Division PROCEEDING: Applications for the grant of mining leases and objections thereto DELIVERED ON: 7 December 2015 DELIVERED AT: Brisbane HEARD ON: 3, 4, 5, 6 and 9 March 2015 21 August 2015 Submissions closed 25 August 2015 HEARD AT: Brisbane MEMBER: PA Smith ORDERS: 1. The Registrar of the Land Court directed to write to the Honourable the Minister responsible for the MRA, bringing to the attention of the Honourable the Minister the Court’s concerns regarding Byerwen’s allegations of illegal activity being undertaken by Glencore on the haul road between ML 4748 and ML 4761, including issues relating to the placement of infrastructure being an electricity line and a water pipeline along such haul road, as -- 1 of 63 -- 2 set out in paragraphs [124], [133] and [134] of these reasons. 2. Recommendation made to the Honourable the Minister responsible for the MRA that MLA 10355 be granted, noting in particular areas of restricted land (Category B) contained within MLA 10355 as agreed between Byerwen and Colinta or as determined by these reasons. 3. Recommendation made to the Honourable the Minister responsible for the MRA that MLA 10356 be granted, noting in particular areas of restricted land (Category B) contained within MLA10356 as agreed between Byerwen and Colinta or as determined by these reasons. 4. Recommendation made to the Honourable the Minister responsible for the MRA that MLA 70436 be granted, noting in particular areas of restricted land (Category B) contained within MLA 70436 as agreed between Byerwen and Colinta or as determined by these reasons. 5. Recommendation made to the Honourable the Minister responsible for the MRA that MLA 70434 be granted, subject to the following: (a) The insertion of a special condition that the holder of MLA 70434 is prevented from undertaking any extractive mining operations on the area starting at the western side of the registered access to ML 4761 and continuing to the eastern boundary of MLA 70434 prior to 1 January 2033 unless the consent of the holder of registered access to ML 4761 is first obtained; (b) A special condition that the holder of MLA 70434, despite the preceding special condition, is permitted to undertake exploration drilling and related activities at all times on that part of MLA 70434 which lies to the east of the registered access to ML 4761; (c) A special condition that the holder of MLA 70434 only undertake exploration activities on the registered access to ML 4761 with either the consent of the holder of ML 4761 or by providing alternative access to ML 4761; (d) So much of the area of MLA 70434 which underlies Collinsville-Elphinstone Road or lies to the north of Collinsville-Elphinstone Road be excluded from the grant of MLA 70434; and (e) That MLA 70434 receive a special condition that the holder of MLA 70434 is to comply with all its EIS requirements, noting however the amendment to commitment 264 as detailed in this decision. 6. Order 5 hereof with respect to MLA 70434 will not be made final until 4pm 16 December 2015 or until -- 2 of 63 -- 3 such further Order of the Court so as to allow Byerwen to make further submissions to the Court as to why the area under and to the north of Collinsville-Elphinstone Road as contained within MLA 70434 should not be excluded from MLA 70434, and to allow Glencore to have time to consider whether it has rights because of its objections to comment on this issue, and leaving open the option of Byerwen to apply to reopen the hearing of the application for MLA 70434, and for Glencore to apply to reopen the hearing of the objections to MLA 70434, should either of them consider this necessary. CATCHWORDS: Mining – application for mining lease – objections – functions and powers of Land Court – statutory criteria in considering grant – Mineral Resources Act 1989 (MRA) ss 268, 269 Mining – application for mining lease – objections – what is “restricted land” under the MRA Mining – MRA – competing interests of two significant projects Mining – application for mining lease – determination of “significant project” by Coordinator-General – commitments in EIS by miner Mining – application for mining lease – objections – scope of objections Land Court – role of Court in making recommendation to Minister – administrative not judicial task – jurisdiction to hear allegations of illegal activity as part of MRA objections hearing Land Court Act 2000, ss 7, 7A Land Court Rules 2000 Mineral Resources Act 1989, ss 238, 268(1)-(3), 269(4) State Development and Public Works Organisation Act 1971, ss 26(1)(a), 45, 52, 76E Uniform Civil Procedure Rules 1999 Water Act 2000, ss 20(2) and (3), 313, 1046 Water Resources Act 1989, ss 48A, 53 ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corp [2002] 1 QdR 346 BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors [2015] QSC 107 DeLacey & Anor v Kargara Pty Ltd (2009) 30 QLCR 57 Henry v ERO Georgetown Gold Operations Pty Ltd [2015] QLC 13 -- 3 of 63 -- 4 Lee v Kokstad Mining Pty Ltd [2008] 1 QdR 65 Magor and St Mellons Rural DC v Newport Corp [1952] AC 189 Marshall v Watson [1972] 124 CLR 640 Parramatta CC v Brickworks Ltd [1972] 128 CLR 1 Queensland Conservation Council Inc v Xstrata Coal Queensland Pty Ltd & Ors [2007] QCA 338 Taylor v Centennial Newstan Pty Ltd [2009] 76 NSWLR 379 Thompson v Groote Eylandt Mining [2003] 173 FLR 72 Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth-Brisbane Co-op Ltd & Ors and the Department of Environment and Resource Management [2012] 33 QLCR 78 APPEARANCES: JK Chapple of Counsel for the applicant DG Clothier QC for the objectors SOLICITORS: S McNee, General Counsel of the applicant Allens for the objectors Overview [1] The applicant Byerwen Coal Pty Ltd (“Byerwen”) has made an application pursuant to the provisions of the Mineral Resources Act 1989 (the “MRA”) for the grant of six mining lease applications (MLAs) which constitute a proposed mining operation referred to as the Byerwen Coal Project. The Byerwen Coal Project is located approximately 20 kms west of Glenden in Queensland. [2] Following the formal public notification processes under the MRA, objections were received to four of the MLAs that in part make up the Byerwen Coal Project. The first objector, Colinta Holdings Pty Ltd (“Colinta”) lodged objections against three of Byerwen’s MLAs. The second objector, Glencore Coal Queensland Pty Ltd (“Glencore”) lodged an objection against one of Byerwen’s MLAs. [3] Colinta is a wholly owned subsidiary of Glencore. Glencore is the owner and operator of several coal mines, including the Newlands mine which includes the Suttor Creek mine. The Newlands and Suttor Creek mines owned by Glencore are in relatively close proximity to the Byerwen Coal Project. -- 4 of 63 -- 5 Background [4] In compiling this background, I have relied on the affidavit evidence of Mr Wallin1 for Byerwen, the affidavits of Mr O’Neil2 for Glencore, and the reports to the Land Court from the Department of Natural Resources and Mines (“the DNRM reports”) with respect to MLAs 10355, 10356, 70434 70436. [5] In order to spare the reader of this decision the burden of a large number of footnotes, the facts which follow in this background can broadly be said to have been sourced from Mr Wallin’s affidavit with respect to the mining operations proposed by Byerwen, Mr O’Neil’s affidavits as regards the mining operations undertaken by Glencore, the DNRM reports, with additional information which is not contentious supplemented from other evidence before the Court. [6] In June 2010, Byerwen applied for six MLAs which together make up the Byerwen Coal Project. MLA 10355,3 MLA 10356,4 and MLA 10357,5 were each lodged in the DNRM office at Charters Towers on 29 June 2010. The next day, 30 June 2010, Byerwen lodged MLA 70434,6 MLA 70435,7 and MLA 70436,8 at the DNRM office at Emerald. [7] Byerwen is an incorporated joint venture between Q Coal Pty Ltd (Q Coal) and JFE Steel. JFE Steel holds a 15% interest in the Byerwen Coal Project. JFE Steel is part of the JFE group of companies in Japan. JFE Holdings is the fifth largest steel manufacturer in the world and one of the largest customers of Queensland sourced coking coal. JFE Steel has a number of direct equity interests in Queensland coal mines and as a result has a significant interest in the performance of the Queensland coal industry. [8] The Byerwen Coal Project is a proposed predominantly open-cut coal mine operation for the extraction of coal. The current intention of Byerwen is to extract approximately 15,000,000 tonnes of run of mine (ROM) coal per annum from the Byerwen Coal Project for processing and sale to export markets. The Byerwen Coal Project will produce predominantly hard coking coal for use in the steel industry together with some thermal coal products. 1 Exhibit 7. 2 Exhibits 16, 17 and 18. 3 Also known as Byerwen No 1. 4 Also known as Byerwen No 2. 5 Also known as Byerwen No 5. 6 Also known as Byerwen No 3. 7 Also known as Byerwen No 4. 8 Also known as Byerwen No 6. -- 5 of 63 -- 6 [9] On 1 March 2011 the Byerwen Coal Project was declared a “significant project” requiring an environmental impact statement (EIS) under s 26(1)(a) of the State Development and Public Works Organisation Act 1971 (SDPWO Act). Byerwen subsequently prepared an EIS and, following evaluation by the Coordinator-General, the Coordinator-General produced a report in July 2014. No conditions were imposed by the Coordinator-General on the Byerwen MLAs pursuant to s 45 of the SDPWO Act, and no conditions were recommended to be imposed pursuant to s 52 of the SDPWO Act that pertained to the grant of the Byerwen MLAs under the MRA. [10] On 18 September 2014, a final environmental authority9 was issued to the Byerwen Coal Project and the Byerwen MLAs. It should be noted that there was no objection to the environmental authority. [11] On 30 September 2014 the Byerwen Coal Project was declared a “prescribed project” under s 76E of the SDPWO Act. [12] Byerwen has forecast that the Byerwen Coal Project will result in significant economic benefits, including the direct employment of approximately 990 personnel during mining operations, to which should be added indirect employment flow on affects in the local region and, in particular, in Glenden and Collinsville; rental payments to the State of Queensland in excess of $55,000,000 over the life of the project; and royalty payments to the State of Queensland in excess of $5,900,000,000. [13] Following the usual public notification processes under the MRA, Colinta lodged objections to MLA 10355, MLA 10356 and MLA 70436. An objection was also lodged against MLA 70434 by Glencore. No objections were lodged by any party against MLA 10357 or MLA 70435. Accordingly, MLAs 10357 and 70435 are without objection and do not form any direct part of the objections proceedings and no recommendation is made with respect to either of those MLAs, although the existence of those MLAs without objection is taken into account in general terms as those MLAs form part of the overall Byerwen Coal Project. [14] Although Colinta is a wholly owned subsidiary of Glencore, it is clear that Colinta undertakes cattle grazing and pastoral activities on its land which is impacted on by the Byerwen Coal Project. It is also clear that Colinta has undertaken cattle grazing and pastoral activities for a lengthy period of time, and at least since 1990. 9 EPML 00595013. -- 6 of 63 -- 7 [15] Parts of MLA 10355, MLA 10356 and MLA 70436 involve applications by Byerwen for mining of surface areas that include parts of Colinta’s pastoral properties. The Colinta pastoral properties are improved pastoral properties containing normal pastoral infrastructure such as bores and dams etc. [16] I now turn to some relevant background information regarding Glencore. Glencore is the manager, principal holder and majority owner of the mining leases comprising the Newlands mine. The Newlands mine commenced mining operations 1983. It is a significant and long standing operating coal mine comprised of both open cut and underground operations. [17] Glencore manages the mining operations at the Newlands mine on behalf of the NCA Joint Venture, which is constituted by Glencore (55%), Sumisho Coal Australia Pty Ltd (10%), ICRA NCA Pty Ltd (10%) and Itochu Coal Resources Australia Pty Ltd (25%). The NCA Joint Venture has the ownership of the mining operations at Newlands and Collinsville coal mines and the operation of the Abbot Point coal terminal. [18] The Newlands mine can be rationally broken into two parts. To the north lie a number of adjoining mining leases10 which are collectively known as the Newlands mining leases. Operations at the Newlands mining leases include the removal of coal from various pits and the processing of such coal at mining infrastructure located on the Newlands mining leases. [19] To the south of the Newlands mining leases, but not adjoining those mining leases, lies a further mining lease11 which is also part of the Newlands mine. This is known as the Suttor Creek mining lease. The Suttor Creek mining lease is a satellite mining lease of the Newlands mine. [20] Glencore accesses the Suttor Creek mining lease via a haul road that runs from ML 4748 to the Suttor Creek mining lease, including across land now the subject of Byerwen’s MLA 70434. [21] Coal which is mined from the Suttor Creek mining lease is hauled from ML 4761 and taken to Glencore’s processing plant for the Newlands operations which is located to the north on ML 4748. [22] The Newlands mine is of significant size. For instance, in the 2013 calendar year approximately 6,350,000 tonnes of ROM coal was mined from the open cut operations of the Newlands mine. Of this, approximately 516,000 tonnes of ROM coal was mined from the Suttor Creek mining lease. 10 MLs 4748, 4754, 4755, 4771, 4774, 10176, 10316, 10317, 10322, 10348, 10352, 10361 and 10362. 11 ML 4761. -- 7 of 63 -- 8 [23] The Newlands mine is a source of significant income to the State of Queensland and other entities. For instance, since the start of 2004, Glencore has paid approximately $557,000,000 in royalties to the State of Queensland in respect of the Newlands mine as a whole. Additionally, in the last five years, Glencore has made rental payments to the State of approximately $9,110,000. Glencore has also paid local government rates to the Isaac Regional Council totalling approximately $25,460,000 in the last five years, and has contributed approximately $57,030,000 to the local economy through payments for housing, accommodation and other services in the town of Glenden and its local area to support Glencore’s workforce, which currently stands at approximately 400 fulltime equivalent workers for its open cut operations. [24] Mining at the Newlands mine is, not surprisingly, dictated insofar as production and staffing levels are concerned by current market conditions, which in recent years have featured low global coal prices and a correspondingly high AUD/USD exchange rate. These market conditions led to the suspension of mining operations at the Suttor Creek pit in June 2013. However, mining operations recommenced in October 2014 at Suttor Creek with the commissioning of high wall mining. [25] Likewise, in October 2013 Glencore temporarily suspended mining operations at the Wollombi pit in the Suttor Creek mining lease, with current predictions for mining in the Wollombi pit to recommence in 2018. [26] The current term of the Suttor Creek mining lease will expire on 30 June 2032. [27] In addition to its coal mining operations, Glencore is an international trading company and is the world’s largest trader of thermal coal on the coal market.12 Glencore has its own internal forecasts department and marketing department which forecasts coal prices and coal tonnages throughout the world into the future. It also has its own treasury department that forecasts future exchange rates. [28] In summary, Byerwen is backed by large companies with significant expertise is the mining and export of coking coal and in the production of steel from that coking coal, and proposes the establishment of a significant mining operation at the proposed Byerwen coal mine which is clearly a project of significance to the State of Queensland as evidenced by its status under the SDPWO Act. Colinta, for its part, operates a long standing cattle grazing and primary production business on land which includes land over which some of the Byerwen coal mine is proposed to be located. Glencore has a highly significant mining operation at the Newlands mine which has been in operation since 1983 and is forecast to continue to operate into the future, returning significant royalty 12 T 4-33 L 36-38. -- 8 of 63 -- 9 and rental payments to the State of Queensland as well as other payments to other entities which also benefit the overall State economy. [29] Although there is no overlap between any of the mining leases currently held by Glencore and the MLAs applied for by Byerwen, Glencore’s mining at Suttor Creek relies upon the haul road used for the transporting of workers and equipment as well as the hauling of coal from Suttor Creek to the infrastructure of the Newlands mine located to the north, with a large part of the haul road travelling across the surface of land which is the subject of Byerwen’s MLA 70434. Glencore’s haul road to the Suttor Creek mining lease also includes an electricity power line to provide power to the Suttor Creek mining lease and a poly water pipeline to transport water to the Suttor Creek mining lease. [30] Glencore has used the haul road to Suttor Creek since 2005. Prior to 2005, the Suttor Creek mining lease had a different link which was varied with relevant approval for part of its length as MRA registered access under the MRA following an application made by Glencore in 2004. [31] On 5 October 2011 Glencore applied for MLA 70460 over the haul road from the Suttor Creek mining lease to the Newlands mine. MLA 70460 is later in time than Byerwen’s MLA 70434. Consideration of MLA 70460 has not been referred to the Land Court by DNRM. [32] To assist in understanding the interaction between Byerwen’s MLAs, Glencore’s MLs, the Suttor Creek haul road and registered access, Colinta’s pastoral operations, following are various maps and plans. [33] To begin with exhibit 2 reproduced below is a map showing the mining operations on Glencore’s MLs, with relevant ML numbers overlaid; the haul route for ML 4761 running first north-westerly and then in a northerly direction from ML 4761, and overlaid by Byerwen’s MLAs showing the currently envisaged mining operations to be undertaken on the Byerwen coal mine. -- 9 of 63 -- 10 -- 10 of 63 -- 11 [34] Below is a copy of exhibit 3 clearly shows Glencore’s existing mining operations and also shows Byerwen’s proposed mining sequence. Importantly, exhibit 3 also shows the location of the Collinsville-Elphinstone Road (also known as the Newlands access road) and Wollombi Road. When exhibit 3 below is compared with exhibit 2 above, what is of note is that, for a comparatively long distance, the haul road from Suttor Creek to the Newlands infrastructure runs to the immediate east of Wollombi Road before becoming an overpass over the Collinsville-Elphinstone Road and proceeding northerly to ML 4748. It is of importance to note that the registered access to ML 4761 ceases at the point where it intersects with the Collinsville-Elphinstone Road. -- 11 of 63 -- 12 -- 12 of 63 -- 13 [35] The plan below is an excerpt from part of attachment 12 to exhibit 16 and is taken from Glencore’s application for MLA 70460. The plan is beneficial as it clearly shows the location of the Suttor Creek haul road and the proposed MLA as well as underlying landholding tenures and mining tenures. -- 13 of 63 -- 14 [36] Finally, the marked up image below shows Glencore’s ML 4748 to the east and various Byerwen’s MLAs to the west and north. Overlaid on the image are notations as to what Colinta says are various pieces of primary production infrastructure located on Colinta’s property. This will be examined in further detail when Colinta’s objections are considered in full. -- 14 of 63 -- 15 The hearing [37] This matter was substantially heard over a period of five sitting days commencing 3 March 2015 in Brisbane. The applicant was represented by Ms JK Chapple of counsel, instructed by Ms S McNee, general counsel of the applicant. Both objectors were represented by Mr DG Clothier QC, instructed by Allens. [38] Both objection hearings were heard together. This was clearly the most efficient way to conduct the hearing from all parties’ perspective. As a result, some of the evidence is relevant to both objections, while other evidence is only relevant to one objection or the other. [39] Technically, the Court heard four separate objections; three by Colinta relating to MLA 10355, MLA 10356 and MLA 70436 respectively, and one by Glencore, which relates to MLA 70434. The hearing of evidence was effectively broken into two parts, the first dealing with Colinta’s objections to the three MLAs, followed by Glencore’s objections to MLA 70434. I intend to adopt a like approach in these reasons. Accordingly, I will first consider the objections made by Colinta, and then those by Glencore. As required by s 269(4) of the MRA, I will then consider each of the requirements of s 269(4) insofar as they relate to Byerwen’s application for each mining lease separately, and the relevant objections thereto. Separate recommendations will then be made to the Honourable the Minister with respect to each MLA. [40] Various witnesses gave evidence at the hearing of the objections matters. Evidence was provided in affidavit form with some witnesses giving oral evidence and subject to cross- examination. There are some aspects of clear conflict in the evidence. Insofar as it is necessary for me to make rulings with respect to any evidence in conflict, I will do so with respect to specific issues as necessary when considering each objection. [41] Looked at as a whole, it was clear that all witnesses were well credentialed to give the relevant evidence that they gave to the Court. [42] One aspect of the evidence which was clearly of significant interest and importance to the parties related to Glencore’s Life of Mine Plan (LOMP). After the close of submissions, but before the recommendations in these matters had been finalised, the Supreme Court handed down its decision in the matter of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors.13 The key finding of the Supreme Court in the BHP Billiton case was that an objection hearing under the MRA (like the hearing at hand) was not a “proceeding” for the purposes of the Land Court Rules (LCR) which had the 13 [2015] QSC 107. -- 15 of 63 -- 16 consequence that the Uniform Civil Procedures Rules 1999 (Qld) (UCPR) did not apply in the Land Court to such objections hearings. [43] The Supreme Court decision in BHP Billiton accordingly brought into question the capacity of this Court to rely upon the LOMP in considering the appropriate recommendations to be made to the Honourable the Minister with respect to the MLAs currently under consideration. [44] In light of the uncertainties relating to the evidence as a consequence of the decision in BHP Billiton, the parties were called back before the Court on 21 August 2015. The parties were then given until 25 August 2015 to provide the Court with written submissions as to the impact of the BHP Billiton case on the evidence received by the Court at the hearing of these MLAs and, in particular, the LOMP. Other matters of relevance to be considered by the parties included amendments to the Land Court Act 2000 (LCA) made as a consequence of the BHP Billiton decision, together with Land Court Practice Direction 1 of 2015. [45] Allens, the solicitors for the objectors, included the following in their written submissions of 25 August 2015: “The respondents (Colinta Holdings Pty Ltd and Glencore Queensland Coal Pty Ltd) acknowledge that the order in question was purportedly made pursuant to rule 222 of the Uniform Civil Procedure Rules 2000 (UCPR), but that based on the Supreme Court decision in BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors, the UCPR was not in fact applicable to the matter. While, at the hearing of the disclosure application in the Proceedings, the second respondent reserved its position with respect to the application of the UCPR disclosure provisions to the Proceedings, it acknowledges that it accepted then that the Land Court nevertheless had the power (other than under the UCPR) to order disclosure of relevant documents, including in this case the Life of Mine Plan, should it decide that to be the appropriate course of action in the case. The second respondent’s position in that respect is unchanged. The respondents therefore do not contend that the Court cannot have regard to the Life of Mine Plan, disclosure of which was ordered by the Court (subject to appropriate restrictions to protect its confidentiality) as part of the evidence in the Proceedings.” [46] Ms McNee, general counsel for the applicant, provided the Court with written submissions dated 24 August 2015 which concluded as follows: “Is is the Applicant’s submission that although the Land Court did not have power pursuant to r.4 or 13 of the Land Court Rules or the UCPR to order production of the LOMP, it nevertheless had ample jurisdiction and power to make the order pursuant to s.363 MRA and s. 7A of the Land Court Act 2000 (Qld). The Applicant does not challenge the Court’s ability to have reference to the LOMP or the evidence produced at the hearing for the purpose of determining the matters in dispute in the above matters.” -- 16 of 63 -- 17 [47] Accordingly, no party contends that the Court cannot have regard to the LOMP as part of the evidence at the hearing of the objections, even though the Land Court did not have power under the UCPR to make an order for disclosure of the LOMP. Importantly, however, the Land Court had at all relevant times, and still has, power under the LCA, and in particular under s 7A of the LCA, to make the orders that it did for production of the LOMP. [48] I now turn to consider the specific objections made by Colinta. Colinta’s objections [49] Colinta lodged two grounds of objection with respect to MLAs 10355, 10356 and 70436. The objections were set out on a single objection form, and are in the following terms: “Grounds of Objection 1. Mining Lease Applications are deficient as they did not identify all restricted land – The applicant’s Mining Lease Applications 10355 and 70436 are deficient in that they do not identify all relevant improvements that comprised restricted land as at the date of the applications, as required by section 245(1)(g) of the Mineral Resources Act 1989 (Qld) (MRA). 2. MLAs indicate an intention to mine restricted land – The applicants’ MLAs 10355, 10356 and 70436 (the MLAs) indicate that mining is intended to be conducted in areas of ‘restricted land’ situated within the objector’s property, but this is not possible as the objector has not given its consent to the grant of the MLAs over these areas of restricted land. Therefore, they cannot be included in the mining lease and the mining operations as proposed in the MLAs cannot be undertaken.” [50] Is is apparent from a careful reading of the grounds of objection that the grounds are general in nature, alleging that not all items which comprise restricted land as defined under the MRA have been properly identified by the applicant, and that Colinta as owner of such restricted land has not given its consent to the grant of the MLAs over those areas of restricted land. [51] In order to ascertain the specifics of Colinta’s objections, it is necessary to turn to the stated facts and circumstances in support of the grounds of objection. The facts and circumstances state as follows: “Facts and Circumstances in Support of Grounds 1 Facts and Circumstances in Support of Ground 1 1.1 Colinta Holdings Pty Ltd (Colinta) is the registered lessee of pastoral development holdings over lot 3 on SP171922 and lot 14 on SP225054 (the Properties). Colinta uses the properties for cattle grazing and pastoral activities. 1.2 The MLAs cover an area that includes part of the Properties. -- 17 of 63 -- 18 1.3 Under section 245(1)(g) of the Mineral Resources Act, an application for a mining lease must identify all restricted land within the area of the mining lease. 1.4 The applicant has not identified in its application material all restricted land in the area covered by mining lease applications 10355 and 70436. 1.5 Annexure 1 shows the location of restricted land as identified by Colinta. 1.6 Annexure 2 is an extract from the application for ML 10355 (Byerwen 1), stating there are no features constituting restricted land within that mining lease area. 1.7 Annexure 3 is a plan taken from MLA 70436 (Byerwen 6) purporting to show restricted land within that mining lease area. 1.8 As can be seen from a comparison of Annexure 1 and Annexures 2 and 3, mining lease applications 10355 and 70435 omit relevant features constituting restricted land, namely: Item Name Description GDA94 MGA Easting GDA94 MGA Northing MLA (a) Shelly’s 1 bore with lister motor & jet pump, 1 x 5000 gallon tank, stock troughs 591142.05 7666664.73 MLA 10355 (Byerwen 1) (b) Three Mile Water Pipeline, 2 x 5000 gallon tanks 593370.90 7663698.37 MLA 10355 (Byerwen 1) (c) 70 Paddock Dam 1 x 20000 yard dam 589703.12 7662226.82 MLA 10355 (Byerwen 1) (d) Sixty Six Bore 1 bore, honda generator, submersible pump, 1 x 18000 yd turkeys next, 1 unequipped bore 586534.45 7656346.99 MLA 70436 (Byerwen 6) 2 Facts and Circumstances in Support of Ground 2 2.1 The MLAs indicate that the applicant plans to undertake mining in areas of restricted land contained within the MLA areas and within the Properties. 2.2 Under section 238(1) of the Mineral Resources Act, restricted land cannot be included in a mining lease’s surface area unless the relevant land owner has provided its written consent to that occurring. 2.3 Colinta has not provided its written consent to any restricted land on its property being included in the surface area of the applicant’s proposed MLAs. 2.4 It is therefore not possible for the applicant to undertake the mining operations as proposed in its MLAs. ~~ooOoo~~ ” [52] Since the making of its objections, the disputes between Byerwen and Colinta regarding restricted land have narrowed considerably. The current position can be understood by reference to the affidavit of Mr Hayden Leary of 6 February 2015,14 and in particular 14 Exhibit 10. -- 18 of 63 -- 19 annexure 4 thereto. Annexure 4 is as follows, leaving to one side only the columns headed “Easting” and “Northing”: “ Item Name Features MLA Basis of Alleged Impact OCoal Comments (a) Shelly’s 1 bore with lister motor & jet pump, 1 x 5000 gallon tank, stock troughs MLA 10355 (Byerwen 1) Within area of proposed underground operations. The information contained in the Concept Plan is insufficient to enable Colinta to determine whether the Features (including bore yield_ will be affected by the applicant’s surface infrastructure or mining activities. Potetially visible on aerials. Some features may be as described in the area around the stated coordinates but no tanks visible (other 50000ga tanks are visible) (b) Three Mile 2 x 5000 gallon tanks MLA 10355 (Byerwen 1) Features appear to be located within close proximity of the applicant’s rail loop and/or CHPP Facility. Confirmed on aerial (c) 70 Paddock Dam 1 x 20000 yard dam MLA 10355 (Byerwen 1) Features appear to be located in or near North Pit and in close proximity to proposed haus roads and CHPP 2. Confirmed on aerial (d) 70 Paddock Bore 1 bore, 2 stock troughs MLA 10356 (Byerwen 2) Features appear to be located within North Pit. Not visible on aerial (e) 70 Paddock Turkeys Nest 1 x turkeys nest MLA 10356 (Byerwen 2) Feature appear to be located within North Pit. Confirmed on aerial (f) Bluff Dam 1 x 20000 yard dam MLA 10356 (Byerwen 2) Feature appears to be located in or near the isolated southern portion of the North Pit and haul roads. Confirmed on aerial (g) Pocket Dam 1 x 30,000 yard dam MLA 70436 (Byerwen 6) Feature appears to be located within area of, or in close proximity to, the South Pit’s Out of Pit Dump, the Burdekin Water Pipeline and the Northern Missing Link. Confirmed on aerial (h) Sixty Six Bore 1 x bore, honda generator, submersible pump, 1km x 63mm poly pipeline MLA 10356 (Byerwen 2) Features appear to be located within the North Pit or its Out of Pit dump. Not visible on aerial (i) Sixty Six Paddock 18,000 yard turkeys nest; 1 x trough MLA 10356 (Byerwen 2) Features appear to be located within the North Pit’s Out of Pit dump. Confirmed on aerial (j) Holding Paddock 66 Bore 1 x functional bore with associated infrastructure (no pump – not currently in use) MLA 10356 (Byerwen 2) Feature appears to be located within the North Pit’s Out of Pit dump. Not visible on aerial (k) Sixty Six Paddock Unequipped Bore 1 x unequipped bore MLA 70436 (Byerwen 6) Feature appears to be located within the North Pit’s Out of Pit dump. Bore not visible but appears to be a shed and dam as per original description of “Sixty Six Bore” set out in the Colinta Objection -- 19 of 63 -- 20 (l) Sixty Six Dam 1 x 20,000 yard dam MLA 70436 (Byerwen 6) Feature appears to be in close proximity to a sedimentation dam. Confirmed on aerial ” [53] When Byerwen’s written submissions15 and Colinta’s written submissions16 are taken into account, it is clear that it is only necessary for this Court to consider whether or not three features are restricted land for the purposes of the MRA, they being items (a), (j) and (k) of annexure 1. Byerwen has accepted that items (b), (c), (d), (h) (bore only) and (i) constitute restricted land category B. For its part, Colinta has accepted that the generator, pump and pipeline referred in in item (h) are not restricted land. [54] It is accordingly appropriate to consider items (a), (l) and (k) of annexure 1 of exhibit 13 in detail. Item (a) – Shelly’s [55] Shelly’s is described as a bore with a Lister motor and jet pump, a 5,000 gallon tank, and stock troughs.17 Byerwen puts forward four propositions in support of its contention that Shelly’s is not restricted land as that term is defined in Schedule 2 of the MRA. Byerwen’s contentions can be summarised as follows: (a) Shelly’s was not in existence when MLA 10355 was lodged; (b) Shelly’s was not registered on the Groundwater Bore Database as at 30 June 2010; (c) The definition of restricted land (Category B) in Schedule 2 of the MRA refers only to bores which are legally registered and/or being lawfully used; and (d) Shelly’s bore is not restricted land because Colinta has not proved it was drilled by a licensed driller. [56] Byerwen has set out in detail in the affidavit of Mr Leary18 the steps that it went to in order to identify areas of restricted land within the MLA areas. Essentially, the evidence is that searches undertaken on the State Government’s Groundwater Bore Database failed to disclose the existence of Shelly’s as a registered bore, noting that the requirement for licensed drillers to lodge details of bores on the register commenced on or about 24 February 1998 with various amendment of the Water Resources Act 1989 (Water Resources Act). The evidence of Mr Johncock19 does not dispute that Shelly’s was not on the State Government Register of Licensed Bores. The evidence of Mr Johncock is vague as to when Shelly’s bore was sunk, indicating in exhibits 13 and 14 that Shelly’s was sunk in the mid-1990s or, more specifically, 1994/1995. However, in exhibit 15, Mr 15 At paras 4.2 to 4.16. 16 At para 122. 17 Exhibit 10 Annexure 4 Item (a). 18 Exhibit 10. 19 Exhibits 13, 14 and 15. -- 20 of 63 -- 21 Johncock states that, after further investigation and reflection, Shelly’s was not sunk until around 1998. [57] Byerwen contends that by regulating the drilling of bores and the recording of data, the legislature established a regime to regulate the number and location of bores, noting that it was an offence for an unlicensed driller to drill a bore. Byerwen contends that the strong inference is that Shelly’s was drilled illegally in breach of the Water Resources Act. [58] Byerwen goes on to contend that s 238 of the MRA, which relates to restricted land, could not be construed to protect features of restricted land which are unlawfully on land the subject of the mining lease. Such a construction would permit Glencore to take advantage of their own failure to comply with requirement in the Water Resources Act and fall foul of the rule of statutory construction expressed in the maxim nullus commodum capere potest de injuria sua propria: no man can take advantage of his own wrong. [59] Byerwen in support of its contention relies upon the comments of Martin CJ in Thompson v Groote Eylandt Mining20 where he said at [33]: “[33] The rule has been applied in Australia in a modern times. In Holden v Nuttall, Herring CJ construed the word ‘hardship’ in the National Security (Landlord & Tenant) Regulations so as not to effect an injustice or enable a person to benefit from his own wrong. At 178, his Honour said: In the circumstances of this case, moreover, I think it may properly be said that the hardship the defendant will suffer is self-inflicted and it is his own conduct that has caused any hardship that he may suffer. He has chosen to make use of the regulations for his own protection regardless of the injury he has done the plaintiff thereby. And by claiming to rely on the hardship he will suffer if dispossessed, he seeks to continue the protection to be derived by him from the regulations indefinitely, so that the injustice that Mrs Uhe and he have been able to inflict upon the plaintiff may be perpetuated. The regulations were not made to enable injustice to be perpetrated in this way. And the word ‘hardship’ should if necessary be limited as a matter of construction as to avoid attributing to the regulation-maker the intention of bringing about an injustice or allowing a man to benefit from his own wrong” (citations omitted) [60] For its part, Colinta submits that the evidence of Mr Johncock makes it clear that Shelly’s was in existence prior to the lodgement of MLA 10355. Although, as indicated, the evidence of Mr Johncock is far from satisfactory as to the precise date that Shelly’s bore was sunk, I do accept that Shelly’s bore was sunk sometime in the 1990s, well before Byerwen applied for MLA 10355. [61] Colinta does not dispute that Shelly’s bore was not registered on the Groundwater Bore Database as at 30 June 2010 but says that that fact does not make Shelly’s an illegal bore. 20 [2003] 173 FLR 72. -- 21 of 63 -- 22 Relying in particular on Mr Johncock’s third affidavit,21 Colinta contends that Shelly’s may have been drilled prior to the operative date for licensing of bores, being 24 February 1998. [62] Colinta in my view correctly points out that, even if the bore was drilled after 24 February 1998, and the required information was not provided to the chief executive, this does not render Shelly’s, and the use of it, unlawful. The requirement to provide information is an administrative requirement, and there is nothing in the Water Resources Act, being the relevant legislation in force at around the time the wore was likely drilled, or in the Water Act 2000 (the “Water Act”) that states that a failure to comply with the notification requirement makes any bore, or the use of it, unlawful. The obligation to notify the information is the obligation of the driller that drilled the bore. It is not an obligation of the landowner, unless they are one and the same. Further, the notification occurs after the drilling of the bore and is simply a process of providing information to the chief executive. It is not the equivalent of seeking any form of approval.22 [63] Under the Water Act, a person must not take or supply water to which the Water Act applies unless authorised to take or supply the water under the Water Act.23 Section 20(2) and 20(3) of the Water Act authorise a person to take or interfere with sub-artesian water for any purpose, subject to any relevant alteration or limitation prescribed under a moratorium notice, water resource plan or regulation under s 1046 of the Water Act. [64] Colinta’s bores are all sub-artesian.24 No relevant moratorium notice is in place, and Colinta’s bores are located within the Burdekin Basin Water Resource Plan area.25 The Burdekin Basin Water Resource Plan does not regulate sub-artesian water.26 Accordingly, that plan does no impose any limitation on the taking of sub-artesian water. Further, Shelly’s bore is not within a declared sub-artesian area27 and is therefore not regulated under s 1046 of the Water Act. Accordingly, the take of sub-artesian water by Colinta for its bores is authorised under the Water Act without any requirement for a water licence. [65] I also agree with Colinta’s submission that Byerwen has supplied no evidence to support its contention that the bore was drilled by an unlicensed driller. At best for Byerwen, it may be said that nobody knows who drilled the bore, and therefore what licences they may or may not have held. 21 Exhibit 15. 22 Section 48A, Water Resources Act 1989, as at 24 February 1998; s 313 of the Water Act 2000. 23 Section 808. 24 Exhibit 13, para 14. 25 Exhibit 14, para 11 and GRJ-1. 26 Burdekin Basin Water Resource Plan, Section 10. 27 Exhibit 14, para 11 and GRJ-1. -- 22 of 63 -- 23 [66] Byerwen is the applicant for the mining lease in this case. The onus is therefore on Byerwen to satisfy first this Court, and ultimately the Minister, that it should be granted a mining lease over the entire area of its application (including the land containing the Shelly’s infrastructure), and that is mining rights should in effect be given preference over the existing use of the land by the landowner. There is no longer a dispute that the Shelly’s water infrastructure existed at the time that Byerwen made its mining lease application, that it is in use, and that it is prima facie “restricted land”. It is for the person alleging illegality to prove it rather than for the person against whom it is asserted to disprove it. Byerwen has not provided any evidence to support a conclusion of illegality. The evidence that does exists suggests that the bore was likely drilled by a licenced driller, and the Court cannot assume illegality as to the drilling of the bore where there is no evidence to support that. [67] Further, if an unlicensed driller drills a bore, it is the individual who drilled the bore, or the entity that employed that individual, which commits the offence.28 The legislation does not say that the landowner (if they are not the driller) has committed any offence, or that the bore is unable to be used. Rather, the penalty is a fine against the driller and his employer. The evidence in this case is that the bore was likely drilled by a drilling crew contracted by Glencore (or the Newlands mine) to drill the bore. The evidence, such as it is, is therefore that it is unlikely that the landowner, Colinta, either drilled the bore or employed the driller that did so. [68] Finally, even if it is assumed that the driller was not appropriately licensed to drill the bore and this made the driller’s action of drilling the bore “illegal” the area around the other features that make up Shelly’s, namely the water storage tank and the stock troughs, would still be restricted land which each independently qualify as restricted land – category B.29 [69] I accept Colinta’s submissions that Shelly’s bore and the associated water storage features should be recognised as restricted land, noting however that the motor and pump are not of themselves restricted land. This is of no practical impact as those features are located within the features of Shelly’s bore which are restricted land. 28 Section 53 of the Water Resource Act was applicable around the time of the drilling of the bore. 29 Xstrata Coal Queensland Pty Ltd & Ors v Friends of the Earth-Brisbane Co-op Ltd & Ors and the Department of Environment and Resource Management [2012] 33 QLCR 78, para 150. -- 23 of 63 -- 24 Holding Paddock 66 Bore and Sixty Six Paddock Unequipped Bore [70] Holding Paddock 66 Bore is a functional bore with associated infrastructure but it has no pump and is therefore not currently capable of being used and is, in fact, not in use. The evidence would appear to confirm that Holding Paddock 66 Bore would be fully functional if a pump was installed. Holding Paddock 66 Bore is located on MLA 10356. [71] Sixty Six Paddock Unequipped Bore is acknowledged by Colinta to be unequipped and not functioning. It is located on MLA 70436. [72] Byerwen submits that on a proper construction of s 238 of the MRA the features of restricted land which are protected must be functioning as that feature at the time that the mining lease application was lodged, before they would be protected as Restricted Land Category B under the MRA because, as Counsel submits, a contrary construction would mean that areas formerly used as a stockyard which had fallen into disrepair and were not being used as such at the time of the application, would nevertheless be excised from the mining lease. Byerwen says that the clear object of the excision of Restricted Land from a mining lease was to protect areas of land important to farmers and graziers for the continuation of their rural activities, and that those features only assume their importance if they are being used for that purpose at the time the mining lease application was lodged. [73] Byerwen correctly points out that there is no evidence that the 66 Bore was in use at the time the application was lodged. Although Mr Johncock says that the bore is being used to supply the 66 Paddock turkey nest, there is no evidence it was being used in this manner at the time the MLA 10356 was lodged. Colinta admits that the Holding Paddock 66 Bore was not being used. As neither feature was in use at the time MLA 10356 was lodged, Byerwen says that the areas should not be excised from the mining lease. [74] Further, Byerwen submits that there is no evidence that the Sixty Six Paddock bore which is unequipped was being used at the time MLA 70436 was lodged, and that such bore should therefore not be excised from the mining lease. [75] In short, Byerwen contends that restricted land should not include bores that were in existence, but not in active use, at the time that the MLAs were lodged. [76] Colinta for its part says that there is no basis to read the MLA in the manner contended for by Byerwen. Colinta acknowledges that neither the Holding Paddock 66 Bore and the Sixty Six Paddock unequipped bore are currently not in use, and that they were not in use at the time that Byerwen lodged its MLAs. -- 24 of 63 -- 25 [77] I accept Mr Johncock’s evidence that Sixty Six Paddock Unequipped bore could easily be put into use as the bore is cased, has a cage around it and a roof over it.30 Likewise, I accept Mr Johncock’s evidence that Holding Paddock 66 Bore is a functional bore which has an A frame over it, is cased, and is a very good bore.31 [78] I agree with Colinta’s submissions that there is no stated requirement in the MRA that the bore must be “in use” at a particular time in order for it to constitute restricted land (category B) as the only requirement is that the bore was in existence at the time the mining lease application was made. To the extent that Byerwen contends that it is “sensible” to interpret the MRA so as to import a requirement that a bore be in use at the time a mining lease application was made before qualifying as restricted land (category B), Colinta submits that contention should be rejected on the basis that the implication is unnecessary and, therefore, contrary to the established principles of statutory construction.32 I agree with Colinta. [79] I note in particular that the definition of restricted land (category A) expressly refers to a requirement that there be a “use” of buildings for stated purposes. That is, in order to be restricted land (category A), it is required that the features are being “used” for the stated purposes, and it might be argued if the building was not in use when the mining lease application was made, it was not restricted land. However, the definition of restricted land (category B) does not make any reference to “use”. All of the contested areas of restricted land in this case are restricted land (category B). [80] If some qualifications with respect of use was intended to be applied to restricted land (category B), the legislature could have easily said so, as it did for restricted land (category A), but this was not done. Accordingly, in my view it may only be assumed that no such qualification was intended to apply. [81] Finally, I agree with Colinta’s submissions that it cannot be said that this results in an nonsensical interpretation of the MRA or produces an absurd outcome. It cannot have been intended that simply because a particular improvement or feature of the land, such as a dam or bore, was not in use on the day a mining lease application was lodged, that it cannot be restricted land. A bore might be used sporadically when needed, and dams 30 T 2 p 36 lines 25-28. 31 T 2 p 36 lines 1-5. 32 Magor and St Mellons Rural DC v Newport Corp [1952] AC 189, Lord Simonds at 191 [AC]; approved, in Marshall v Watson [1972] 124 CLR 640, Stephen J at 649 [Menzies J agreeing], see also Barwick CJ at 644 [CLR] [McTiernan J agreeing]; Parramatta CC v Brickworks Ltd, Gibbs J at 12 [CLR] [Barwick CJ, Menzies, Owen and Walsh JJ agreeing]; This reflects the separation of powers, which is enshrined in the Constitution at the federal level and in institutional structures at the State and Territory level: Taylor v Centennial Newstan Pty Ltd [2009] 76 NSWLR 379, Basten JA at [90]. -- 25 of 63 -- 26 might temporarily run dry, but that is not to say that the landowner will not be using them again in the future. [82] In her opening, Ms Chapple for Byerwen gave the example of a stockyard that had been erected for temporary use, then cease to be used, and has fallen into complete disrepair before a mining lease application was made. She argued that it would not be sensible to regard this as restricted land.33 As Colinta’s counsel correctly puts it in his submissions, what Byerwen’s counsel described was effectively something that once was a stockyard but was no longer effectively recognisable as such a feature due to its state of disrepair. It may be that a feature could fall into such a state of disrepair that it was no longer recognisable as such a feature any longer, but that is a different test as to whether the feature must be in active use on the day the mining lease application was made. In this case, the evidence is that both Holding Paddock 66 Bore and Sixty Six Paddock Unequipped Bore, whilst not in use, are both in good repair, functional and able to be easily put into use on short notice if they are required. Accordingly, both are bores and therefore restricted land (Category B) for the purposes of the MRA. Glencore’s Objection [83] Glencore has only lodged an objection to MLA 70434. The objection states as follows: “Grounds of Objection 1 Adverse impact on Newlands and Suttor Creek mining lease operations – The grant of Mining Lease Application 70434 (MLA 70434) will have a significant adverse impact upon the objector and its existing mining operations as: (a) MLA 70434 is situated between Mining Lease 4761 (‘Suttor Creek’) and Mining Lease 4748 (part of the Newlands Mine), both of which are held by the objector; (b) the objector accesses Suttor Creek via an access road that runs from Newlands to Suttor Creek (the Access Road), across land the subject of MLA 70434; (c) the objector hauls coal mined at Suttor Creek to the Newlands coal handling and processing plant on ML 4748 (where it is washed and then loaded onto trains for transport to market) via the same Access Road; (d) the grant of MLA 70434 over the Access Road would, without any condition to the contrary, prohibit the objector from continuing to access and use the Access Road; (e) without ongoing access to and use of the Access Road, the objector will be unable to continue its mining operations at Suttor Creek. 33 T 1 p 18 lines 30-40. -- 26 of 63 -- 27 Therefore, MLA 70434 should not be granted unless it is conditioned such that the objector will be entitled to continue to access and use the Access road for the duration of ML 4761 (unless otherwise agreed between the applicant and the objector). Otherwise, in the circumstances and for the reasons outlined above: (f) the operations to be carried out under the proposed MLA 70434 will not conform with sound land use management (section 269(4)(i) of the Mineral Resources Act); (g) the public right and interest will be prejudiced as a result of the adverse impacts on the existing Newlands and Suttor Creek mining operations (section 269(4)(k)); and (h) the significant adverse impacts on the Newlands and Suttor Creek mining operations is a good reason for the refusal of the grant of MLA 70434 (section 269(4)(l)); and (i) having regard to the current and prospective uses of the land, the mining operation on ML 70434 is not an appropriate land use (section 269(4)(m)).” [84] Glencore supplied detailed Facts and Circumstances in support of its ground of objection. The first part of those Facts and Circumstances explained the interrelationship of the Newlands Mine and the Suttor Creek Mining Lease; the nature of the mining objection; royalty payments to the State; employment details; and the like. Such details have already been set out earlier in this decision. [85] The Facts and Circumstances then go on to state as follows: “1.6 Suttor Creek is connected to the Newlands mine by the Access Road, as shown on the map in Annexure 1. The Access Road is used by the objector to: (a) access to the Suttor Creek lease with equipment and personnel from the Newlands lease to undertake mining of coal; and (b) transport coal mined from the Suttor Creek lease to the Newlands leases, where the coal is subsequently washed, stockpiled and loaded onto trains for transport to market. 1.7 The objector has applied for a mining lease over the Access Road (MLA 70460), but the mining lease cannot currently be granted without the consent of the applicant, and nor can it be further advanced until the MLA 70434 is decided, as it was applied for after MLA 70434. 1.8 MLA 70434 is situated in the area between the Suttor Creek lease and the Newlands leases, and situated over an area that includes the Access Road connecting the leases, as shown on the plan in Annexure 1. 1.9 If MLA 70434 is granted without any condition providing for the objector’s ongoing use of the Access Road, there is a significant risk that the objector will no longer be able to use the Access Road to access the Suttor Creek lease, because: -- 27 of 63 -- 28 (a) The applicant’s mining operations on MLA 70434 might prevent the ongoing use of the Access Road by the objector; (b) The applicant might withhold its consent to the objector entering MLA 70434 once granted. 1.10 Mining of coal on the Suttor Creek lease will not be able to continue without reliable, safe and efficient ongoing access between the Suttor Creek lease and the Newlands leases. Additionally, if the Access road route is required to be relocated, the capital costs associated with construction of a new road and the increased haulage costs that would be incurred as a result of such relocation would detrimentally affect the economic viability of continuing to mine Suttor Creek, and may therefore mean mining at Suttor Creek would cease. 1.11 If mining on the Suttor Creek lease cannot continue, this will result in a reduction in royalties paid to the State and adversely affect employment opportunities at the mine. 1.12 Therefore, MLA 70434 should not be granted unless it contains a condition that, unless the objector and the applicant otherwise agree, the objector is entitled to continue to use the Access Road, without interference by the applicants, for the duration of the term of ML 4761 (including any renewals), for the purposes of accessing ML 4761, transporting coal mined from ML 4761 to the Newlands leases, and any purpose ancillary or incidental thereto.” Objection to material [86] Before turning to consider the objection in detail, it is necessary to consider a preliminary point raised by Byerwen at the commencement of the hearing. [87] Byerwen has objected to parts of the evidence of Mr O’Neill contained in his affidavits of 16 December 2014 and 23 February 2015. Those objections are set out in exhibit 6 as follows: “OBJECTIONS TO MATERIAL No Affidavit Material objected to Basis of Objection 1. Affidavit of Bernard O’Neill affirmed 16 December 2015 All of Paragraph 48 Not relevant to a ground in the Objection: s.268(3) MRA 2 . Affidavit of Bernard O’Neill affirmed 16 December 2015 All of paragraph 50 Not relevant to a ground in the Objection: s.268(3) MRA 3 . Affidavit of Bernard O’Neill affirmed 16 December 2014 Paragraph 74 from the words ‘..as until these proceedings commenced…’ to the end of that paragraph Not relevant to a ground in the Objection: s.268(3) MRA 4 . Affidavit of Bernard O’Neill affirmed 16 December 2014 Paragraphs 78-85, Exhibits 16, 17, 18, 19 Not relevant to a ground in the Objection: s.268(3) MRA 5 . Affidavit of Bernard O’Neill affirmed 23 February 2015 All of paragraphs 14 – 19 Not relevant to a ground in the Objection: s.268(3) -- 28 of 63 -- 29 MRA 6 . Affidavit of Bernard O’Neill affirmed 23 February 2015 Paragraph 17 Objectionable hearsay ” [88] The bulk of the objections relate to an allegation that the evidence does not relate to a ground in the objection as required by s 268(3) of the MRA. Section 268(1)-(3) of the MRA provides as follows: 268 Hearing of application for grant of mining lease (1) On the date fixed for the hearing of the application for the grant of the mining lease and objections thereto, the Land Court shall hear the application and objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the Land Court in respect of that application at the one hearing of the Land Court. (2) At a hearing pursuant to subsection (1) the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence. (3) The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application. … [89] Ms Chapple for Byerwen has forcefully submitted that the evidence complained of in points 1 – 5 above do not arise out of the actual grounds of objection and therefore must not be accepted by the Court. [90] Mr Clothier QC for Glencore contends that the paragraphs complained of do fall within the grounds of objection. Relying on the decision of this Court in DeLacey & Anor v Kargara Pty Ltd,34 Mr Clothier says that the paragraphs in question offer further detail and explanation of a ground of objection rather than any attempt to raise a completely new ground of objection and so are permissible. [91] The Court of Appeal has certainly made it abundantly clear that this Court must not rely on any evidence from an objection on a matter or issue not raised in a duly made objection. 34 (2009) 30 QLCR 57. -- 29 of 63 -- 30 [92] As Justice Mackenzie said in ACI Operations P/L v Quandamooka Lands Council Aboriginal Corp:35 “When the legislative history of what is now s 268 is taken into account, subsection 268(3) should be treated as a limitation of the more general words in subsection 268(2) as to how the tribunal goes about its functions. The consequence of this is that the tribunal's right to hear such persons and inform itself in such manner as it considers appropriate under subsection 268(2) is subject to subsection 268(3). The limitation is that, whatever else the tribunal may do to inform itself of what it is required to satisfy itself, it is precluded from entertaining an objection by an objector to an application or any ground thereof, or any evidence in relation to a ground where there has not been an objection duly lodged in respect of a matter which an objection subsequently wishes to agitate.” [93] Justices Davies and Mullins made strong statements in ACI of like effect to what Mackenzie J said above. As Mullins J put it:36 “That has the result that at the hearing pursuant to section 268(1) of the MRA, the Tribunal can entertain an objection and receive evidence from the respondent which relates only to a ground in its duly lodged objection. The making of submissions by an objector in relation to an issue equates to the entertaining of an objection on that issue by the Tribunal.” [94] These provisions were again considered by the Court of Appeal in Lee v Kokstad Mining Pty Ltd.37 In that case, Jerrad JA noted at [9]: “Section 268 has other provisions, but none relevant to this appeal. The quoted subsections were considered by this Court in ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation. This Court held that s 268(3) was to be construed as qualifying s 268(2), and that accordingly the LRT was precluded from hearing submissions or evidence from an objector to the grant of a mining lease on a matter not raised in its duly lodged objection. The decision in ACI Operations v Quandamooka Lands Council Aboriginal Corporation has the effect, as put by Mackenzie J in that matter, that the Tribunal’s right to hear such persons and inform itself in such a manner as it considered appropriate under s 268(2) is subject to the limitation in 268(3) that, whatever else the Tribunal may do to inform itself of what it is required to satisfy itself, it is precluded from entertaining an objection by an objector to an application or any ground thereof, or any evidence in relation to a ground, where there has not been an objection duly lodged in respect of a matter which an objector subsequently wishes to agitate.” [95] When considering objections under the MRA, it is important for the Court to bear in mind the distinction between objections on the one hand and particulars of those objections on the other. This distinction was clearly explained by Court of Appeal President McMurdo, with whom the other members of the Court agreed, in the case of Queensland Conservation Council Inc v Xstrata Coal Queensland P/L & Ors:38 35 [2002] 1 QdR 347 at 352 [14]. 36 At [60]. 37 [2008] 1 QdR 65. 38 [2007] 33 QLCR 78 at [49] – [51]. -- 30 of 63 -- 31 “The function of particulars is to limit the issues of fact being investigated, not to modify or alter the issue between the parties: Mummery v Irvings Pty Ltd. Had QCC been successful in its application to amend its particulars from requiring Xstrata to avoid, reduce or offset greenhouse gas emissions related to the proposed mine by 10 per cent rather than the particularised 100 per cent, it would not have significantly changed the case that Xstrata had to meet. The proposed amendment to the particulars involved a question of degree and amount; if anything it narrowed rather than widened, but certainly did not alter, the issue for determination between the parties. Mr Jackson contends that the proposed amendment to the particulars would have required Xstrata to call different evidence as to the changed cost of meeting the more limited conditions sought by QCC. The evidence at the hearing was that the costs of carbon offsets were calculated in terms of the cost per tonne of CO2 produced. Xstrata's response to the proposed amendment of the particulars would seem to involve its relevant expert witnesses in relatively straight-forward mathematical recalculations and minor consequential addenda to their reports. On the material before the Tribunal and this Court, QCC should be allowed to amend its particulars in the terms sought at first instance.” [96] In DeLacey, I made the following observations which I consider reflect the same principles to be considered regarding particulars of objections as does evidence in support of objections:39 “[27] The question then to be asked is, do the particulars as set out in the Objector's letter of 2 September 2008, to the extent to which the applicant's take issue with them amount to proper particularisation of objections duly lodged, or should they be properly construed as new grounds for objections which are made out of time, and therefore cannot be entertained by the Court. [28] … Clearly, in my view, the Objector has made it known to the Applicants from the outset that they object in every possible way to the applicant's MLAs. They have put the Applicants on notice, by duly lodged objections made within time, that it is their contention that the Applicants have failed to comply with the provisions of the MRA in making their MLAs. Further, the Objector has also clearly put the Applicants on notice by its objections that it is concerned regarding what it sees as a lack of environmental rigour relating to the Applicants' application process. [29] The Objector's further particularisation of provisions of the MRA which the Objector claims the Applicants have not complied with, together with details of threatened bat and plant species which may be impacted by the Applicants' MLAs are, in my view, sufficiently proximate to the objections originally lodged and subsequently particularised to warrant their inclusion as proper further particulars, and not their exclusion as new grounds of objection. [30] It follows that, in my view, the Objector may rely upon the further particulars set out in the letter of 2 September 2008 and may properly call evidence with respect to such further particulars.” [97] On balance, I am satisfied that the evidence complained of has enough nexus with the grounds of objection to be allowed. The evidence broadly relates to Glencore’s use of what is referred to as the access between Newlands and Suttor Creek, noting of course that only part of that access is an MRA access to a ML. 39 (2009) 30 QLCR 57 p 61-62. -- 31 of 63 -- 32 [98] It is not as if Glencore is seeking to present evidence of some entirely different issue, such as impacts on a threatened species; groundwater issues; or the like. ACI is clear authority that this Court must ensure it does not allow an objector to introduce fresh issues of objection through its evidence. However, as Queensland Conservation Council shows, it is permissible to allow evidence which further explains an issue already under objection. [99] Byerwen’s objection nos. 1 – 5 of Mr O’Neill’s evidence are rejected. That now leaves objection no. 6 to be dealt with. [100] Ms Chapple of Counsel had this to say during oral submissions relating to objection no. 6:40 “Paragraph 17 of the affidavit of Mr O’Neill is included within the parameters of that objection but is also objected to on the basis that it’s just objectionable. He doesn’t – he just says based on my own knowledge and recollection of events and my discussions with Mike Carrucan, he believes certain things have happened. He says the meeting between Mr Black and Mr Carrucan on 12 September 2014 after Glencore lodged its objection was about the access road but didn’t discuss other things. Well, with the greatest respect to Mr O’Neill, he doesn’t say that he was present there, and he certainly doesn’t say that he – Mr Carrucan told him that, and he wasn’t there. One might wonder how he can – how he can give that evidence, and he hasn’t even said that he has been informed by anyone. So it’s objected to on that basis.” [101] As s 7 of the Land Court Act 2000 (LCA) makes clear, this Court is not bound by the rules of evidence and may inform itself in any way it considers appropriate. [102] This does not mean that the Court could, or should, accept any evidence placed before it. Of course there must be limits, particularly relating to issues of relevance. However, quite clearly this Court can receive evidence which would otherwise be objectionable on the basis of hearsay, although the weight to be given to such evidence may be quite low. [103] The objection raised by Byerwen in no. 6 is dismissed. The haul road [104] Critical to Glencore’s objection is that it is seeking, in effect, uninterrupted use into the future of the haul road from the Suttor Creek mine to the Newland’s mine. It is necessary to consider aspects of the haul road in some detail as it has a rather convoluted history. The haul road can be broken down into three distinct component parts:41 40 T 1 p 27 line 44 – p 28 line 8. 41 These component parts are named this way by me in an attempt to explain the circumstances of the haul road more easily. -- 32 of 63 -- 33 1. The northern haul road travelling from a point on the southern side of the Collinsville-Elphinstone Road, travelling northwards spatially over the Collinsville- Elphinstone Road then returning to ground level to the north of the Collinsville-Elphinstone Road and continuing to the Newland’s mine and in particular ML 4748; 2. The MRA Registered Access to Suttor Creek, namely ML 4761, which commences on the southerly side of Collinsville-Elphinstone Road and proceeds in a southerly direction to ML 4761; and 3. The southerly haul road which runs from an elevated ramp area directly to the south of the Collinsville-Elphinstone Road to the Suttor Creek mine which is ML 4761. [105] Turning firstly to the northerly haul road, the evidence is clear that Glencore holds no MRA tenure or other statutory approval with respect thereto. However, what Glencore does hold is a private agreement between Colinta, which is the owner of the land over which the northern haul road transverses, and itself allowing Glencore use of the northern haul road as an access to the Suttor Creek mine, including the haulage of coal extracted from the Suttor Creek mine and transported for processing at the Newland’s mine. [106] I have been unable to locate anything anywhere in the evidence in this matter which shows what legal right, either pursuant to the MRA or by private agreement, Glencore asserts for its use of the volumetric area above Collinsville-Elphinstone Road which forms the very southern part of the northern haul road. [107] The registered access to the Suttor Creek mine can be easily explained. This is a standard form access which links a mining lease to a road. As required under the MRA, Glencore has entered into compensation agreements with the holders of the land over which the registered access to the Suttor Creek mine transverses. It is somewhat unusual that the registered access traverses very close to Wollombi Road for a significant distance. Clearly, this has been done to ensure as little interaction as possible between traffic using the road network and traffic using the registered access to the Suttor Creek mine. [108] The southerly haul road can be described in quite similar terms as the registered access to the Suttor Creek mine, and it is very easy to confuse the two. However, it is essential to a proper understanding of the cases put by Byerwen and Glencore that the distinction between the registered access and the southern haul road be understood. -- 33 of 63 -- 34 [109] The southern haul road incorporates all, or almost all, of the registered access. I am unable to be precise in this regard due to an absence of survey plans of the respective features showing exact meets and bounds. However, the southerly haul road clearly does not confine itself to the meets and bounds of the registered access.42 [110] It is clear from the evidence that both the electricity powerline and the water pipeline lie wholly within the southerly haul road. However, the evidence does not make it clear whether such infrastructure also lies within the registered access to the Suttor Creek mine. [111] Glencore’s rights with respect to the registered access are clear. Section 276(1)(d) of the MRA provides as follows: 276 General conditions of mining lease (1) Each mining lease shall be subject to— … (d) a condition that without the prior approval of the Minister the holder shall not obstruct or interfere with any right of access had by any person in respect of the area of the mining lease; … [112] Glencore clearly has a legal right to use the registered access to the Suttor Creek mine in accordance with the provisions of the MRA and that right of access must be observed by Byerwen. Theoretically, as I pointed out in the case of Henry v ERO Georgetown Gold Operations Pty Ltd43 the holder of a mining lease over land which includes a right of access has two options should it wish to undertake mining activities on that right of access. As I said in Henry:44 “[79] The determining factor on this point is the interference by ERO with Henry’s right of access. In my view, ERO had two options before it, should it wish to mine any part of the formation. Firstly, ERO could have sought the prior approval of the Minister to obstruct or interfere with Henry’s (and the public’s) right of access in accordance with the general condition of ML 30124 as set out in s 276(1)(d) of the MRA. For completeness, had such Ministerial consent been forth coming, that would constitute a material change in circumstance for the ML. However, in this case, ERO did not seek to obtain prior Ministerial approval. [80] The other option which ERO had should it wish to mine the formation was to provide an alternate right of access for Henry (and the public) while the formation was being mined. Logically, the alternate right of access would of necessity be provided by ERO within the boundaries of ML 30124. I must stress that any such alternate access still would not preclude ERO from mining all available land contained within ML 30124. It would simply be a matter of mine programming by ERO to either mine the formation whilst providing alternative access, then rehabilitate the formation back to its pre-mining condition and then mine the alternate access, or vice versa.” 42 T 3 p 29 lines 26-47. 43 [2015] QLC 13. My decision was recently upheld on appeal – [2015] QLAC 4. 44 At [79] – [80]. -- 34 of 63 -- 35 [113] The difficulties in this matter therefore fall not so much with issues relating to the conflicting mining interests of Byerwen and the registered access held by Glencore to the Suttor Creek mine, but with those parts of the haul road and, in particular, the southern haul road, which fall outside of the meets and bounds of the registered access. Proposed conditions [114] Both Byerwen and Glencore propose that their respective interests, and indeed those of the other, can be accommodated by the imposition on the grant of MLA 70434 of special conditions relating specifically to the haul road. Unfortunately, but not surprisingly, the special conditions that each propose are fundamentally different in nature. [115] The special conditions that Byerwen propose are as follows:45 “The Land Court recommend the grant of MLA70434 subject to the following conditions: 1. Until 31 December 2024, the holder of ML70434 must not obstruct or interfere with the registered access road held by the holder of ML4761 (‘Access Road’) without the prior approval of the Minister. 2. After 31 December 2024 and until the expiration of ML4761, if the holder of ML70434 wishes to obstruct or interfere with the Access Road, it may do so but only on the condition that it construct an alternative road to enable the holder of ML4761 to continue to access ML4761 for rehabilitation purposes. 3. The holder of ML4761 is to be appointed by the holder of ML70434 as the Coal Mine Operator, as that term is defined in the Coal Mining Safety and Health Act (Qld) 1999, for the area contiguous with the Access Road until 31 December 2024 or until an alternative access road is provided under (2) above whichever is the latter. 4. Subject to (5) below, the holder of ML70434 is permitted to cross and recross the Access Road. 5. The holder and/or Coal Mine Operator of ML70434 and the Coal Mine Operator for the Access Road must enter into an interface agreement which facilitates the interaction of activities in relation to the Access Road until 31 December 2024 or for so long as the holder of ML4761 remains the Coal Mine Operator for the area contiguous with the Access Road.” [116] Glencore proposes two alternative sets of special conditions:46 “Annexure – Proposed Conditions Glencore seeks a recommendation that the following conditions be imposed on mining lease 70434, if the Land Court is inclined to recommend its grant: 1 MLA 70434 be granted subject to the following conditions: (a) The surface area of ML 70434 that overlaps the area within MLA 70460 (the ‘Access Road Area’) only be used for transportation infrastructure purposes whilest ML 4761 is in existence. 45 Exhibit 5. 46 Annexure, submissions on behalf of the respondents. -- 35 of 63 -- 36 (b) Subject to condition (c), the holders of ML 70434 will not obstruct or interfere with the use of the Access Road Area by the holders of ML 4761 and ML 4748 for transportation infrastructure purposes, including: (i) access to and from JL 4761 and ML 4748 with vehicles, services and equipment; and (ii) road haulage of coal between ML 4761 and MJ 4748. (c) The holders of ML 70434 may, at their cost, construct and maintain access and haul roads that cross the Access Road Area provided that: (i) the holders of ML 70434 first consult and agree with the holders of ML 4761: (A) the location of the intersections, which will be located so as the minimise interference with each parties’ respective operations and minimise safety risks; (B) all construction and operational issues regarding the interaction of each parties’ project activities; and (C) safety and management plans and agreements for use of the intersections within the Access Road Area; and (ii) the holders of ML 70434 must design the intersection of the haul roads in accordance with all relevant design guidelines and standards and to ensure the safe operation of the intersection[s]. (d) The holders of ML 70434 will consent to the grant of MLA 70460. Alternatively, if the Court is not inclined to order the above condition: 1 MLA 70434 be granted over the area of the mining lease application, subject to the area within the existing MLA 70460 (the ‘Access Road Area’) being excluded from the surface area of ML 70434, and subject to the following condition: (a) The holder of ML 70434 shall not obstruct or interfere with the access and use of the Access Road Area by the holders of ML 4761, for so long as ML 4761 is in existence, for transportation infrastructure purposes, including: (i) access to and from ML 4761 and ML 4748 with vehicles, services and equipment; and (ii) road haulage of coal between ML 4761 and ML 4748.” [117] There are some fundamental aspects relating to each of the proposed special conditions. Turning firstly to the special conditions proposed by Byerwen, it is noteworthy that the special conditions propose that after 31 December 2024 the holder of ML70434, if it wishes to obstruct or interfere with the access road, may do so provided that it constructs -- 36 of 63 -- 37 alternate access such as to enable the holder of ML4761 to continue to access ML4761 for rehabilitation purposes. [118] There was a significant amount of evidence as to the likely conclusion of mining on the Suttor Creek mine and the timing at which activities at Suttor Creek would move from the extraction of coal to purely rehabilitation. Certainly, on the evidence, it would seem that that is likely to occur by about the mid-2020s. However, when the totality of the evidence is taken into account, I am satisfied that such an outcome is a current proposal only and that such timetabling is subject to significant change depending upon many features, not the least of which is market conditions relevant to the price of coal and the rate of the Australian dollar as compared to the US dollar. [119] Glencore properly holds, pursuant to the MRA, ML 4761 on which it has constructed its Suttor Creek mine. It holds a registered access to the Suttor Creek mine pursuant to the provisions of the MRA. Although the Suttor Creek mining lease ML 47461 is due to expire in 2032, the MRA, of course, gives Glencore the right to apply for a renewal of ML 4761 for a further term. It is easy to anticipate a need for Glencore to seek a renewal of ML 4761 arising. There has already been instances of suspension of mining operations as the Suttor Creek mine. Some mining operations have recommenced, and others are scheduled to recommence within the next few years. However, no one knows the future, and it may very well be the case that, for commercial or other reasons, Glencore chooses to amend its mining program for Suttor Creek such that mining would proceed at a later timetable than that presently envisaged. I see no justifiable reason why the ability of Glencore to seek and potentially obtain a renewal of ML 4761 should be hindered by Byerwen. Nor should the operations of Byerwen for the final eight years of the current term of ML 4761 be limited to rehabilitation only. [120] On the material before me, the full exploitation of all the coal reserves within the Suttor Creek mine is clearly in the best interests of the State and should not be hindered. In saying this, I am specifically assuming legal mining operations on ML 4761 and the registered access thereto and I am leaving to one side for present purposes the allegations by Byerwen as to illegal operation by Glencore of a haul road and illegally placing of infrastructure being the powerlines and water pipeline between the Newland’s mine and the Suttor Creek mine. [121] I reject Byerwen’s proposed special conditions in seeking to limit Glencore’s use of the registered access for all but rehabilitation purposes to 31 December 2024. As that limitation is a core thread which runs throughout Byerwen’s proposed special conditions, I reject all of Byerwen’s special conditions as formulated. -- 37 of 63 -- 38 [122] I now turn to consider Glencore’s proposed special conditions in the alternative. It is a fundamental feature of Glencore’s proposed special conditions that Glencore be able to use the haul road as it currently exists between the Suttor Creek mine and the Newland’s mine. Using the terminology that I have adopted, the access that Glencore seeks to retain is the northern haul road and the southern haul road which clearly includes areas outside of Glencore’s existing registered access to ML 4761. [123] I have considerable doubt over the legal right of Glencore to use the entirety of the haul road that it refers to in its proposed special conditions. As already pointed out, Byerwen makes strong submissions as to the legality of infrastructure placed between the Newland’s mine and the Suttor Creek mine by Glencore, as well as the legality of the hauling of coal over both a registered access and, in particular over land over which no registered access is held by Glencore. [124] I am concerned as to the jurisdiction of this Court to entertain questions as to the legality of the operations of Glencore as part of the making of recommendations for the MLAs sought by Byerwen. As I do not wish to fall into jurisdictional error, I do not intend to make any findings as to the alleged illegal operations conducted by Glencore. However, that said, it is a matter of some concern that serious allegations of activities by Glencore which may be illegal under the provisions of the MRA are being undertaken and it is appropriate that I bring the existence of such allegations of illegal activities on the haul road to the attention of the Honourable the Minister responsible for the MRA for such investigation and further action as the Honourable the Minister may consider appropriate. [125] The special conditions proposed by Glencore presume the legality of all current activities being undertaken by Glencore and all uses of land by Glencore including for infrastructure purposes, or at the very least seek to have the effect of confirming the continued operations by Glencore with the legal foundation of special conditions being applied to MLA 70434 in Glencore’s favour. [126] I do not think it appropriate for Glencore to affectively pull itself by its own boot-straps by having what may indeed be illegal operations sanctioned by special conditions of a mining lease granted to Byerwen. I can find no justification whatsoever in the MRA for such an approach to be adopted or contemplated. [127] I reject all of the proposed special conditions put forward by Glencore in this matter. [128] Having rejected the special conditions proposed by both Byerwen and Glencore, it would be easy for this Court to make a recommendation to the Honourable the Minister that MLA 70434 be granted without special conditions. However, were I to proceed down that track, I consider that I would be failing my duties to the Honourable the Minister to -- 38 of 63 -- 39 make a reasoned recommendation in circumstances where both the proposed Byerwen mine and the existing Newland’s and Suttor Creek mines are of significant importance to the State of Queensland. To recommend the grant of MLA 70434 without special conditions would be doing little more than ensuring either prolonged commercial and legal dispute continue between Byerwen and Glencore, or that the issues over which Glencore and Byerwen collide, and in particular the critical use by Glencore of its haul road from the Suttor Creek mine, be sorted via special legislation of Parliament.47 [129] Clearly, it is not in the interests of Byerwen or Glencore for their respective rights and interests to undertake mining operations to be subject to the uncertainties of future litigation or the unknowns of waiting for the possibility of special legislation being enacted. [130] Having carefully considered all of the evidence in this matter, I have come to the conclusion that the respective positions of both Byerwen and Glencore are driven more by fear of what might happen in interacting with the other than the reality of what is likely to occur. Looked at objectively, and with special conditions applied to MLA 70434, I see no reason why the mining operations of Glencore and those proposed by Byerwen cannot live in harmony, and thus lead to the interests of the State in having both these projects proceed to the greatest extent that commercial realities allow, occur. [131] A key point in my reasoning is based on the evidence that Byerwen has no intention of mining what is referred to as East Pit 1 and East Pit 2, which lie to the east of the access, until about year 26 of operations, which equates about 27 years after the grant of MLA 70434.48 Assuming that MLA 70434 is granted in 2016, this means that mining operations will not commence to the east of the access until 2043. On the evidence, it would appear to be highly unlikely that any mining operations will be undertaken at Suttor Creek by Glencore in or about the year 2043. Were Glencore still to be undertaking mining operations at that time, it could only do so with a renewal of ML 4761, and the interaction between the access to ML 4761 and MLA 70434 would, I am sure, be a relevant factor to be taken into account by the Honourable the Minister in considering any application for renewal of ML 4761 or whether special conditions were then considered necessary to impose on ML 4761. 47 One can envisage that special legislation could, for instance, by amendments to the MRA, legalise and formalise Glencore’s current use of the haul road to Suttor Creek mine and the placing of infrastructure thereon, with the payment of due compensation to any impacted parties, and also requiring Byerwen to yield to Glencore as regards interference with the haul road and infrastructure save for properly conducted crossing points between the western and eastern parts of MLA 70434 across the haul road, with any rights of Byerwen to mine the land contained within the haul road suspended until such time as the haul road was no longer required by Glencore. 48 See Exhibit 10, [18]. -- 39 of 63 -- 40 [132] I consider it appropriate, and in the interests of both Byerwen and Glencore, for a special condition to be incorporated into the grant of ML 70434 to the affect that the holder of ML 70434 is prevented from undertaking any extractive mining operations on the area starting at the western side of the registered access to ML 4761 and continuing to the eastern boundary of ML 70434 prior to 1 January 2033 unless the consent of the holder of the registered access to ML 4761 is first obtained. The special condition should also stipulate that exploration drilling and related activities are allowed at all times on that part of ML 70434 which lies to the east of the registered access to ML 4761, and further that the holder of ML 70434 only undertake exploration activities on the registered access to ML 4761 with either the consent of the holder of ML 4761 or by providing alternate access to ML 4761. [133] I realise that, to an extent, the solution that I have arrived at in the above paragraphs is perhaps only superficial. It leaves unresolved the question as to the legality of Glencore’s activities both on the registered access and on the haul road where that haul road falls outside of the meets and bounds of the registered access. My reference to activities of Glencore includes reference to Glencore’s use of the area as a haul road and to the placing of electrical and water pipeline infrastructure in the area. As I have indicated, I do not wish to be led into jurisdictional error by considering the legality of Glencore’s activities on the haul road. However, if it be the case that those activities have been conducted without any lawful authority and, in particular, without lawful authority under the MRA, for the past ten years and, it would seem, with the knowledge of Officers of the Department of Natural Resources and Mines since at least the time when Glencore lodged its MLA over the haul road, then that situation is quite intolerable. [134] If the activities are illegal, then despite the high interests of the State of Queensland in having Glencore’s mining operations at Suttor Creek and the Newlands mine continue, nevertheless I consider there to be a higher public interest in the administration of the MRA to ensure that the provisions of the MRA are at all times complied with. If a mining operator of the enormous size of Glencore has in fact been conducting illegal operations under the MRA with a blind-eye turned by departmental officers, what hope can there be in the administration of the MRA in the eyes of the public when it comes to all mining operations conducted under the authority of the MRA? It is for that reason that I have formally directed the Registrar of the Court to bring my concerns as to the legality of Glencore’s operations on the haul road to the attention of the Honourable the Minister administering the MRA. I further direct that these specific comments be brought to the Honourable the Ministers’ attention. -- 40 of 63 -- 41 [135] That is not the end of the matter. On the material presented by Byerwen, and leaving completely to one side the objections by Glencore, I can find no good reason for that part of MLA 70434 which lies under and on the northern side of Collinsville-Elphinstone Road to be granted. Nowhere in the evidence is there any reference that I have been able to find to any use that Byerwen currently proposes to put such land. For certainty of reference, I have highlighted this area of MLA 70434 in pink and hatched it in black pen on the diagram below: -- 41 of 63 -- 42 -- 42 of 63 -- 43 [136] I am of course aware that in the original application for MLA 70434 as filed with the mining registrar on 30 June 2010 that at that time there existed a clear intention by Byerwen to use at least part of the land in the area to the north of Collinsville- Elphinstone Road that I have identified for mining infrastructure described as CHPP1. This is clearly set out on the concept layout for Byerwen as contained in Attachment 2 to the MLA. [137] I also note that Attachment 1 to MLA 70434 explains why the size and shape for the MLA was selected as follows: “3.6 The area and shape was selected taking into account the proposed layout of the related infrastructure, access to power and water, ease of access and manoeuvrability within the site and local topography, cultural heritage obligations, underlying tenements and the background land tenure boundaries. The area and shape was also selected in recognition of the seam dips and resource limits, and the mining method employed for the site.” [138] Additionally, Attachment 1 to MLA 70434 provides the following reasons as to why the surface area of MLA 70434 is required: “11.2 Surface area is required for the following activities or in support of the following activities on adjacent Mining Lease:  the efficient open-cut and underground extraction of the coal resource and associated purposes,  access and second egress to underground mining operations,  management of incidental coal seam gas,  fence lines,  Coal Handling and Preparation Plant,  rail loop,  roads for access and coal haulage,  settlement ponds and water storage,  mine site and surface rehabilitation,  area of mineable deposits,  overburden dumps and ramp systems,  industrial facilities,  offices, stores, employee facilities, and  such other purposes associated with surface and underground mining of coal as required from time to time.” [139] Exhibit 2, as reproduced earlier in these reasons, shows Byerwen’s current mining plans. Critically, what is described as “Southern MVI/CHPP” on Exhibit 2, which appears to relate directly to CHPP 1 referred to above, is now located entirely to the west of Collinsville-Elphinstone Road. [140] I also note that Appendix 4 to MLA 70434, which is the initial development plan for the Byerwen coal mine dated June 2010, contains at page 13 Figure 2 which shows the surface geology of the Byerwen area. The area which I am proposing should be excluded from MLA 70434 is included in Figure 2. Unfortunately, the copy of Figure 2 as found in -- 43 of 63 -- 44 the initial development plan, even though in colour at page 411 of Exhibit 7, is still difficult to read. I cannot tell if the majority of the land in question to north of the Collinsville-Elphinstone Road is part of the Rewan formation or the Rangal Coal Measures or the Fort Cooper Coal Measures. If the geology of this area is only Rewan, then clearly the only use of which this land could be put under a mining operation would be infrastructure and there is nothing in the evidence of Byerwen’s current plans to show any intention to put any infrastructure in this area at any time. [141] The situation may be different if the area in question is either part of the Rangal or Fort Cooper Coal Measures except for the fact that the current mine layout, and indeed all mine layouts presented to the Court by Byerwen, fail to show any intention by Byerwen in any way to actively extract coal from this area. [142] Put simply, my reasoning in having the area to the north of Collinsville-Elphinstone Road on MLA 70434 excluded from MLA 70434 is based on the evidence which it would seem conclusively shows that Byerwen has no current intention to undertake any activities pursuant to the authority of a mining lease granted under the MRA on that area of land. [143] I am aware of course that the consideration of removing part of the area of MLA 70434 will come as a complete surprise to Byerwen. Accordingly, I consider it appropriate, before making my recommendations as set out in the order with respect to this MLA matter final, to allow Byerwen until 4pm 16 December 2015 to make further submissions to the Court as to why the area under and to the north of Collinsville-Elphinstone Road should not be excluded from MLA 70434. I also leave open the option of Byerwen applying to reopen the hearing of the application for MLA 70434 should Byerwen consider this necessary. [144] As Glencore has not in its objections sought that the area to the north of Collinsville- Elphinstone Road be excluded from MLA 70434, I do not consider it appropriate to receive submissions from Glencore on this point. However, I accept that Glencore may have an entirely different view, and the rules of natural justice has, in my opinion, at least a right to be heard as to whether it has rights, because of its objections to MLA 70434, to comment on this issue. As already noted, Colinta is not an objector to MLA 70434 and therefore it has no right to comment in this regard. -- 44 of 63 -- 45 Byerwen’s commitments [145] An important aspect of this case relates to various commitments made by Byerwen as part of its Environmental Impact Statement for the Byerwen Coal Project dated May 2013 (the EIS) and other related documents. In particular, I note the commitments contained at 152, 264 and 376 of the EIS as follows:49 “ … 152 The proponent will consult Xstrata Coal Queensland Pty Ltd, the applicant for the mining lease for transport (MLA 70460) that traverses the project area, about all construction and operational issues where there is potential for interaction between projects activities. Chapter 14, section 14.6.6. … … 264 The intersection of the haul roads with Xstrata’s mining lease for transport will be designed in accordance with the relevant design guidelines and standards including turn paths/swept path of the appropriate vehicles and ensure that appropriate sight lines and distances are provided to ensure safe operation of the intersection. Chapter 27, section 27.7.8; Chapter 34, section 34.17.1 … … 376 Hazards relating to intersection with Xstrata mine vehicles travelling along the transport route from mines south of the project to the Xstrata Newlands Mine that bisects Byerwen tenements will be mitigated through the following risk treatment measures – traffic control measures, traffic management plan, and liaison with Xstrata. Chapter 32, section 32.5. … ” [146] The sequence of events following the making of the commitments in the EIS is well summarised in Mr O’Neill’s affidavit of 16 December 2014.50 Relevantly, Mr O’Neill has this to say:51 “80. In response to the Commitments in the EIS, Glencore lodged a submission, signed by me, on the Byerwen Coal Project, a copy of which is Exhibit 17 to this affidavit (the Submission). Among other things, the Submission states: The EIS notes that Wollombi Road and/or land adjacent to Wollombi Road are the subject of Xstrata Coal’s (now Glencore’s) MLA 70460. The Suttor Creek Haul Road was constructed in 2005 when mining at Suttor Creek commenced. Based on Departmental advice at the time, the haul road had been registered in 2004 as a ‘varied access route’ into the mine under s317 of the Mineral Resources Act 1989 (MRA). Since 2004, the MRA has been amended to now include a ‘road’ to the list in s316 of transportation methods over land to access a mining lease. An application under s316 has been made by Glencore for MLA 70460, which overlaps the proponent’s application. 49 Exhibit 16, Annexure 19. 50 Exhibit 16. 51 Exhibit 16, paragraphs 80-84. -- 45 of 63 -- 46 THE EIS notes that the proponent will consult with Glencore about all construction, operational, hazards and design related issues where there is potential for interaction between project activities. Newlands Mine welcomes the commitment from the proponent to on-going dialogue and co-operation in relation the Suttor Creek Haul Road. The existing road is critical infrastructure associated with the current operations of the Newlands Mine. 81. In response to Glencore’s Submission, Byerwen again did not indicated that it had any objection to Glencore’s continuing use of the Access Road, but rather stated in its Additional Information on the EIS (AIEIS): The Coordinator General has directed the proponent to note this issue. This issue is addressed at Chapter 14, Section 14.6.6 of the EIS. Exhibit 18 to this affidavit is the relevant extract from the AIEIS. 82. The respondent’s Commitments were also listed in Appendix 7 (Proponent Commitments) of the Coordinator-General’s Evaluation Report for the Byerwen Coal Project, published on or about 2 July 2014 (the CG’s Report), a copy of which is Exhibit 19 to this Affidavit. 83. With respect to Glencore (then Xstrata) and the Commitments, the Coordinator-General made the following comments in the CG’s Report: (a) ‘The Byerwen project is located immediately to the west of Xstrata Coal’s Newlands and Wollombi/Suttor Creek mines, which produce in excess of 10 Mtpa of thermal coal. An existing haul road corridor from Wollombi/Suttor Creek to the Newland’s processing area intersects the project area’ (section 2.2); and (b) ‘The EIS identified that Xstrata Coal Queensland Pty Ltd is the applicant for a mining lease from transport (MLA 70460) which traverses the project area. The project will impact on this transport corridor as the haul roads will interact it. I require an outcome of safe operation of project related traffic at any future intersection. I note that the proponent commits to design the intersection of the haul roads with Xstrata’s mining lease in accordance with the relevant design guidelines and standards to ensure safe operation of the intersection. The proponent also commits to consult with Xstrata about all construction and operational issues when tere is interaction between project activities (Appendix 6, commitments 152 and 264)’ (Section 5.7.2). 84. In summarising his conclusions in the CG’s Report, the Coordinator General States at xvii: I conclude the project can deliver overall local, regional and state benefits. The predicted environmental impacts can be acceptably avoided, minimised, mitigated through the implementation of the management measures and proponent commitments outlined in the EIS documentation. The conditions I have specified in this report have been formulated in order to further manage and monitor the predicted impacts associated with the project. -- 46 of 63 -- 47 Accordingly, I approve the project to proceed subject to the conditions and recommendation set out in this report and the proponent obtaining all subsequent statutory approvals. In addition, I require the proponent’s commitments to be fully implemented.” [147] The applicant’s written submissions contain important comments regarding Byerwen’s EIS commitments as follows:52 “4.34. The Byerwen EIS was lodged in 2013. Much has been made of the commitments made by Byerwen in that document. Glencore have suggested Byerwen has failed to comply with those commitments and have recognised that Glencore would obtain a mining lease over MLA70460. The EIS commitments were drafted by external consultants and overseen by Mr Leary and others at Byerwen[footnote] [(footnote) T2-6 L1-10]. The reference in commitment No 264 to the existence of Glencore’s mining lease was a typographical error and not one which was repeated throughout the EIS documents[footnote] [(footnote) T2-7 L10-15]. On no account could ti be construed as an acknowledgement or representation by Byerwen that they would consent to MLA 70460. It is submitted that the reference to MLA70460 was merely to identify the area of the access road. It was not put to Mr Leary or to Mr Wallin that they were aware the haul road was over land which did not form part of the registered access road. It would be inconceivable that Byerwen could somehow waive its right to complain about the existence of the haul road over land not contiguous with the registered access road without having any knowledge of that tenure. 4.35. Mr Leary says that the most appropriate time for the commitments No 152 and 264 to be performed is around 3 years prior to the activity anticipated in the EIS because the Workplace Health and Safety Act requires a cross section of the workforce to be involved in completing the health management systems[footnote] [(footnote) T2-6 L20-45; TT2-7 L25-30]. He said that it would not be appropriate to negotiated those commitments before the mining lease was granted[footnote] [(footnote) T2-8 L5] and an interface agreement would be negotiated Glencore and set out details of the design standards for the vehicle interaction with the road, operational issues, and traffic control measures required for the interaction of vehicles at the intersection[footnote] [(footnote) T2-8]. That is precisely what the conditions proposed by Byerwen anticipate[footnote] [(footnote) see the conditions at Exhibit 5]. Mr Leary was not challenged on this evidence in cross examination.” [148] It is appropriate to look closely at evidence of Mr Leary specifically regarding the reference in commitment no. 264 to “Xstrata’s mining lease for transport”. During examination-in-chief, Mr Leary had this to say:53 “Were you aware, at the time that you settled this commitment, whether Glencore had – or Xstrata then – had obtained a mining lease for infrastructure over the access road?---I was aware that they had an application, not a mining lease. Okay. Why, then, is there a reference, in the first part of that commitment, to the intersection haul roads being with Xstrata’s mining lease for transport?---That’s a typo. That should’ve been mining lease application. It was an oversight in the finalising – finalisation of the – the – the work. 52 At paragraphs 4.34 and 4.35. 53 T 2-7 line 8 – line 19. -- 47 of 63 -- 48 And is that typographic error repeated throughout the EIS, or is it different?--- Generally, in the EIS, when we talk about the tenure for that mining lease, it’s – it refers to the mining lease application, not the mining lease.” [149] I accept the evidence of Mr Leary. Accordingly, the reference to “Xstrata’s mining lease for transport” contained within commitment 264 of the EIS should read “Xstrata’s mining lease application for transport” and, for the purposes of this recommendation, commitment 264 will be taken to so read. [150] I now turn to consider the submissions on behalf of the respondents regarding the EIS commitments. I will allow the submissions to speak for themselves:54 “41. The EIS contains a number of commitments, including commitments 152, 264 and 376. Commitment 152 refers to MLA 70460 and involves a commitment to consult with Glencore about all construction and operational issues where there is a potential for interaction between the project activities. Commitment 264 refers to Glencore’s ‘mining lease for transport’ and involves a commitment to design intersections of haul roads in accordance with relevant guidelines and standards. Commitment 376 refers to Glencore’s ‘transport route’ and involves a commitment in respect of risk treatment measures. 42. Glencore lodged a submission dated 23 July 2013 in response to the EIS in which it stated, amongst other things, that it welcomed ‘the commitment from [Byerwen] to on-going dialogue and co-operation in relation to the Suttor Creek Haul Road. The existing road is a critical piece of infrastructure associated with the current operations of the Newlands Mine’. 43. In additional information, Byerwen recorded that the Coordinator General (CG) had directed it to note the issue raised in Glencore’s submission and stated that it was addressed in the EIS. The fact that it was addressed in the EIS. The fact that Byerwen had been required by the CG to note the issue indicates that it was considered to be of importance. 44. The CG’s evaluation report is dated 2 July 2014. The CG approved the project subject to conditions and recommendations. He required Byerwen’s commitments to be fully implemented. Those commitments are recorded in the CG’s report and include the commitments referred to above. The CG specifically noted the existence of the Access Road and MLA 70460 and the commitments made by Byerwen in respect of it. 45. The terms of the commitments, and the context in which they were made, indicate that they were intended to be understood as meaning (and were understood by the CG as meaning) that MLA 70460 was something about which Byerwen had no issue and that Byerwen would co-operate in Glencore’s continued use of the Access Road. This was one of the bases upon which the CG approved the BCP. 46. There was some evidence led by Byerwen to the effect that consultations about practical matters like crossing designs and safety interactions would not occur until close to the time the crossings will be required. That is not the aspect of the commitments that Glencore is concerned about. The aspect it is concerned about is Byerwen now adopting the position that the Access Road cannot lawfully be used to haul coal in the absence of a mining lease and Byerwen will not consent to such a lease. Therefore, Byerwen’s position is 54 At paragraphs 41 – 48. -- 48 of 63 -- 49 that it objects to the JV participants obtaining a mining lease over the Access road and will not co-operate in the JV participants being able to haul coal along the Access road. That position is fundamentally contrary to the commitments it gave to the CG. 47. In this proceeding Byerwen has attempted to distance itself from these commitments. It seeks to characterise them as not involving any explicit or implicit agreement to MLA 70460. However, in the face of knowing of the existence and use of the Access Road, knowing of MLA 70460 and knowing that Glencore described the Access road as a ‘critical piece of infrastructure associated with the current operations of the Newlands Mine’, Byerwen did not say that there was any issue with any of these matters. Byerwen responded with commitments to the effect that its MLAs would not detrimentally affect the continued use of the Access Road and that any interface was entirely manageable. 48. Mr Black attempted to distance Byerwen from its EIS commitments in a different way. He says ‘were made in the context of … commercial negotiations and [Byerwen’s] understanding that it would be permitted to use the road to truck its coal to Glencore’s CHPP for washing and processing at the Newland’s Mine’ and that those commercial negotiations have not come to fruition because of the parties’ differing commercial views about certain matters. Mr Black has no basis for saying this …” [151] It is abundantly clear to me from the evidence that the Coordinator-General has given careful consideration to the EIS commitments in this matter. I consider it an important matter of principle, and public policy, and consistent with the work undertaken by the Coordinator-General, that Byerwen be held accountable for its EIS commitments. To remove any doubt as to the enforceability of the EIS commitments and, in particular commitments 152, 264 and 376, in my opinion it is appropriate that MLA 70434 be conditioned with a special condition stating that the holder of MLA 70434 is to comply with all its EIS commitments, noting however the amendment to commitment 264 as detailed in this decision. MRA section 269(4) considerations [152] When considering Byerwen’s applications for MLAs 710355, 10356, 70436 and 74034 and the MRA objections thereto, the Court must at all times be cognizant of the provisions of s 269 of the MRA. In particular, s 269(4) sets out various considerations that the Court must take into account in making a recommendation to the Honourable the Minister. I will consider each of those elements of s 269(4) separately with respect to each MLA. [153] Before turning to the individual elements of s 269(4) of the MRA for each MLA, it is essential to understand that, to save repetition, I will not repeat the analysis which I have already undertaken with respect to the MRA objections. However, I must stress that, in considering each of the criteria relevant to s 269(4) for each MLA I have taken into account and considered the relevant MRA objections made in this matter. -- 49 of 63 -- 50 [154] Assistance in considering the requirements of s 269(4) of the MRA has been obtained from Exhibit 7, Mr Wallin’s first affidavit, as well as the Mining Registrar’s reports for each MLA. MRA section 269(4) considerations for MLA 10355 Section 269(4)(a) – Have the provisions of the Act been complied with? [155] On 11 January 2012, the Mining Registrar, Charters Towers, issued a Certificate of Application for MLA 10355. The Mining Registrar can only issue the Certificate if satisfied that Byerwen is eligible to apply for the mining lease and has complied with the requirements of the MRA with respect to the Application.55 [156] In my opinion, there is sufficient evidence of compliance with the provisions of the MRA in respect to this Application. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [157] I am in no doubt from the evidence presented on behalf of Byerwen that the land applied for is mineralised in that it contains significant quantities of coal. Section 269(4)(c) – If the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for? [158] Having considered all of the evidence presented in this matter, I am satisfied that Byerwen currently believes that it will be able to operate a profitable mining operation. [159] The material before me shows an appropriate development and utilisation of the mineral resources within the area applied for, taking into account the restrictions imposed by restricted land. Section 269(4)(d) – Is the land and the surface area of that land in respect of which the mining lease is sought of an appropriate size and shape? [160] The material before me appears to indicate a MLA of an appropriate size and shape in light of the proposed mining operation, taking into account other mining tenures. [161] I am satisfied that the requirements for this criterion have been met. Section 269(4)(e) – Is the term sought appropriate? [162] The term sought for this mining lease is 50 years. Byerwen proposes a large scale mining operation consistent with a term of this length. 55 See s. 252 of the MRA. -- 50 of 63 -- 51 Section 269(4)(f) – Has the applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [163] As explained earlier in this decision, Byerwen is an incorporated Joint venture between QCoal and JFE Steel. QCoal has over 20 years mining experience in Queensland and JFE is part of the JFE Group which is the world’s fifth largest steel maker. [164] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the applicant been satisfactory? [165] With respect to this criterion, Mr Wallin said that:56 “55. At no time has any security deposited by the Applicant in relation to mining and prospecting/exploration:- (a) not been refunded when due; (b) been utilised by the Minister to rectify any breach of the MRA, or any other legislation relating to mining or breach of conditions of a mining tenement; (c) been used to pay any penalty; (d) been reviewed by the Minister except in accordance with yearly reviews of mining tenements; or (e) been increased by the Minister due to any actual or potential breach of conditions, codes of conduct, or the like. 56. The Applicant has never been called on to show cause for:- (a) failure to comply with any condition of any mining tenements; (b) failure to comply with any provisions of the MRA or any other act relating to mining; or (c) failure to lodge a security deposit required to be lodged under the MRA or any other Act relating to mining. 57. The applicant has never had a mining lease or mining claim forfeited for non- payment of rent or for any other reason.” [166] I note that what Mr Wallin says is consistent with the applicant’s Land Court Form 9. [167] I am satisfied that the past performance of Byerwen has been satisfactory. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences? [168] At the time of the lodgement of MLA 10355, EPM 18297 and EPM 18336 already existed (initially in application form only). The holder of EPM 18297 and EPM 18336 56 Exhibit 7 para 55, 56 and 57. -- 51 of 63 -- 52 gave conditional consent to MLA 10355. EPM 18297 and EPM 18366 are no longer current.57 [169] Accordingly, there is no disadvantage to any holder or applicant for an exploration permit or a mineral development licence. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [170] As is clear from my analysis of Glencore’s objection, there is a clear potential for conflict between Glencore’s use of a haul road between the Newlands Mine and the Suttor Creek. [171] All issues relating to restricted land use have either been settled as between Byerwen and Colinta, or determined by these reasons. There is therefore nothing remaining that raises any concern that the proposed objections do not conform with sound land use management. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [172] There were no environmental objections to MLA 10355. There were also no objections to the draft EA relating to MLA10355. [173] The evidence of Mr Wallin58 clearly shows that any adverse environmental aspects will be adequately addressed by the conditions proposed by the draft EA. Section 269(4)(k) – Will the public right and interest be prejudiced? [174] There is no evidence to show that the grant of MLA 10355 will prejudice the public right and interest in any way. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [175] No good reason has been shown for a refusal to grant MLA 10355. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [176] The materials show that this significant project is for the extraction of a valuable resource in accordance with the environmental processes. [177] I am satisfied that the proposed mining operation is an appropriate land use of the application land. MRA section 269(4) considerations for MLA 10356 Section 269(4)(a) – Have the provisions of the Act been complied with? [178] On 11 January 2012, the Mining Registrar, Charters Towers, issued a Certificate of Application for MLA 10356. The Mining Registrar can only issue the Certificate if 57 Exhibit 7 para 32 and 33. 58 Exhibit 7. -- 52 of 63 -- 53 satisfied that Byerwen is eligible to apply for the mining lease and has complied with the requirements of the MRA with respect to the Application.59 [179] In my opinion, there is sufficient evidence of compliance with the provisions of the MRA in respect to this Application. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [180] I am in no doubt from the evidence presented on behalf of Byerwen that the land applied for is mineralised in that it contains significant quantities of coal. Section 269(4)(c) – If the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for? [181] Having considered all of the evidence presented in this matter, I am satisfied that Byerwen currently believes that it will be able to operate a profitable mining operation. [182] The material before me shows an appropriate development and utilisation of the mineral resources within the area applied for, taking into account the restrictions imposed by restricted land. Section 269(4)(d) – Is the land and the surface area of that land in respect of which the mining lease is sought of an appropriate size and shape? [183] The material before me appears to indicate a MLA of an appropriate size and shape in light of the proposed mining operation, taking into account other mining tenures. [184] I am satisfied that the requirements for this criterion have been met. Section 269(4)(e) – Is the term sought appropriate? [185] The term sought for this mining lease is 50 years. Byerwen proposes a large scale mining operation consistent with a term of this length. Section 269(4)(f) – Has the applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [186] As explained earlier in this decision, Byerwen is an incorporated Joint venture between QCoal and JFE Steel. QCoal has over 20 years mining experience in Queensland and JFE is part of the JFE Group which is the world’s fifth largest steel maker. [187] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the applicant been satisfactory? [188] With respect to this criterion, Mr Wallin said that:60 “55. At no time has any security deposited by the Applicant in relation to mining and prospecting/exploration:- 59 See s. 252 of the MRA. 60 Exhibit 7 para 55, 56 and 57. -- 53 of 63 -- 54 (f) not been refunded when due; (g) been utilised by the Minister to rectify any breach of the MRA, or any other legislation relating to mining or breach of conditions of a mining tenement; (h) been used to pay any penalty; (i) been reviewed by the Minister except in accordance with yearly reviews of mining tenements; or (j) been increased by the Minister due to any actual or potential breach of conditions, codes of conduct, or the like. 56. The Applicant has never been called on to show cause for:- (d) failure to comply with any condition of any mining tenements; (e) failure to comply with any provisions of the MRA or any other act relating to mining; or (f) failure to lodge a security deposit required to be lodged under the MRA or any other Act relating to mining. 57. The applicant has never had a mining lease or mining claim forfeited for non- payment of rent or for any other reason.” [189] I note that what Mr Wallin says is consistent with the applicant’s Land Court Form 9. [190] I am satisfied that the past performance of Byerwen has been satisfactory. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences? [191] The material indicates no disadvantage to any holder or applicant for an exploration permit or a mineral development licence. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [192] All issues relating to restricted land use have either been settled as between Byerwen and Colinta, or determined by these reasons. There is therefore nothing remaining that raises any concern that the proposed objections do not conform with sound land use management. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [193] There were no environmental objections to MLA 10356. There were also no objections to the draft EA relating to MLA10356. [194] The evidence of Mr Wallin61 clearly shows that any adverse environmental aspects will be adequately addressed by the conditions proposed by the draft EA. 61 Exhibit 7. -- 54 of 63 -- 55 Section 269(4)(k) – Will the public right and interest be prejudiced? [195] There is no evidence to show that the grant of MLA 10356 will prejudice the public right and interest in any way. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [196] No good reason has been shown for a refusal to grant MLA 10356. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [197] The materials show that this significant project is for the extraction of a valuable resource in accordance with the environmental processes. [198] I am satisfied that the proposed mining operation is an appropriate land use of the application land. MRA section 269(4) considerations for MLA 70436 Section 269(4)(a) – Have the provisions of the Act been complied with? [199] On 6 January 2012, the Mining Registrar, Emerald, issued a Certificate of Application for MLA 70436. The Mining Registrar can only issue the Certificate if satisfied that Byerwen is eligible to apply for the mining lease and has complied with the requirements of the MRA with respect to the Application.62 [200] In my opinion, there is sufficient evidence of compliance with the provisions of the MRA in respect to this Application. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [201] I am in no doubt from the evidence presented on behalf of Byerwen that the land applied for is mineralised in that it contains significant quantities of coal. Section 269(4)(c) – If the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for? [202] Having considered all of the evidence presented in this matter, I am satisfied that Byerwen currently believes that it will be able to operate a profitable mining operation. [203] The material before me shows an appropriate development and utilisation of the mineral resources within the area applied for, taking into account the restrictions imposed by restricted land. Section 269(4)(d) – Is the land and the surface area of that land in respect of which the mining lease is sought of an appropriate size and shape? [204] The material before me appears to indicate a MLA of an appropriate size and shape in light of the proposed mining operation, taking into account other mining tenures. 62 See s. 252 of the MRA. -- 55 of 63 -- 56 [205] I am satisfied that the requirements for this criterion have been met. Section 269(4)(e) – Is the term sought appropriate? [206] The term sought for this mining lease is 50 years. Byerwen proposes a large scale mining operation consistent with a term of this length. Section 269(4)(f) – Has the applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [207] As explained earlier in this decision, Byerwen is an incorporated Joint venture between QCoal and JFE Steel. QCoal has over 20 years mining experience in Queensland and JFE is part of the JFE Group which is the world’s fifth largest steel maker. [208] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the applicant been satisfactory? [209] With respect to this criterion, Mr Wallin said that:63 “55. At no time has any security deposited by the Applicant in relation to mining and prospecting/exploration:- (k) not been refunded when due; (l) been utilised by the Minister to rectify any breach of the MRA, or any other legislation relating to mining or breach of conditions of a mining tenement; (m) been used to pay any penalty; (n) been reviewed by the Minister except in accordance with yearly reviews of mining tenements; or (o) been increased by the Minister due to any actual or potential breach of conditions, codes of conduct, or the like. 56. The Applicant has never been called on to show cause for:- (g) failure to comply with any condition of any mining tenements; (h) failure to comply with any provisions of the MRA or any other act relating to mining; or (i) failure to lodge a security deposit required to be lodged under the MRA or any other Act relating to mining. 57. The applicant has never had a mining lease or mining claim forfeited for non- payment of rent or for any other reason.” [210] I note that what Mr Wallin says is consistent with the applicant’s Land Court Form 9. [211] I am satisfied that the past performance of Byerwen has been satisfactory. 63 Exhibit 7 para 55, 56 and 57. -- 56 of 63 -- 57 Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences? [212] The material indicates no disadvantage to any holder or applicant for an exploration permit or a mineral development licence. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [213] All issues relating to restricted land use have either been settled as between Byerwen and Colinta, or determined by these reasons. There is therefore nothing remaining that raises any concern that the proposed objections do not conform with sound land use management. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [214] There were no environmental objections to MLA 70436. There were also no objections to the draft EA relating to MLA70436. [215] The evidence of Mr Wallin64 clearly shows that any adverse environmental aspects will be adequately addressed by the conditions proposed by the draft EA. Section 269(4)(k) – Will the public right and interest be prejudiced? [216] There is no evidence to show that the grant of MLA 70346 will prejudice the public right and interest in any way. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [217] No good reason has been shown for a refusal to grant MLA 70436. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [218] The materials show that this significant project is for the extraction of a valuable resource in accordance with the environmental processes. [219] I am satisfied that the proposed mining operation is an appropriate land use of the application land. MRA section 269(4) considerations for MLA 70434 Section 269(4)(a) – Have the provisions of the Act been complied with? [220] On 6 January 2012, the Mining Registrar, emerald, issued a Certificate of Application for MLA 70434. The Mining Registrar can only issue the Certificate if satisfied that Byerwen is eligible to apply for the mining lease and has complied with the requirements of the MRA with respect to the Application.65 64 Exhibit 7. 65 See s. 252 of the MRA. -- 57 of 63 -- 58 [221] In my opinion, there is sufficient evidence of compliance with the provisions of the MRA in respect to this Application. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [222] I am in no doubt from the evidence presented on behalf of Byerwen that the land applied for is mineralised in that it contains significant quantities of coal. Section 269(4)(c) – If the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for? [223] Having considered all of the evidence presented in this matter, I am satisfied that Byerwen currently believes that it will be able to operate a profitable mining operation. [224] The material before me shows an appropriate development and utilisation of the mineral resources within the area applied for, taking into account the restrictions imposed by restricted land. Section 269(4)(d) – Is the land and the surface area of that land in respect of which the mining lease is sought of an appropriate size and shape? [225] Save for my comments regarding that part of MLA 70434 which lies to the north of Collinsville-Elphinstone Road, the material before me appears to indicate a MLA of an appropriate size and shape in light of the proposed mining operation, taking into account other mining tenures. [226] I am satisfied that the requirements for this criterion have been met. Section 269(4)(e) – Is the term sought appropriate? [227] The term sought for this mining lease is 50 years. Byerwen proposes a large scale mining operation consistent with a term of this length. Section 269(4)(f) – Has the applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [228] As explained earlier in this decision, Byerwen is an incorporated Joint venture between QCoal and JFE Steel. QCoal has over 20 years mining experience in Queensland and JFE is part of the JFE Group which is the world’s fifth largest steel maker. [229] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the applicant been satisfactory? [230] With respect to this criterion, Mr Wallin said that:66 “55. At no time has any security deposited by the Applicant in relation to mining and prospecting/exploration:- (p) not been refunded when due; 66 Exhibit 7 para 55, 56 and 57. -- 58 of 63 -- 59 (q) been utilised by the Minister to rectify any breach of the MRA, or any other legislation relating to mining or breach of conditions of a mining tenement; (r) been used to pay any penalty; (s) been reviewed by the Minister except in accordance with yearly reviews of mining tenements; or (t) been increased by the Minister due to any actual or potential breach of conditions, codes of conduct, or the like. 56. The Applicant has never been called on to show cause for:- (j) failure to comply with any condition of any mining tenements; (k) failure to comply with any provisions of the MRA or any other act relating to mining; or (l) failure to lodge a security deposit required to be lodged under the MRA or any other Act relating to mining. 57. The applicant has never had a mining lease or mining claim forfeited for non- payment of rent or for any other reason.” [231] I note that what Mr Wallin says is consistent with the applicant’s Land Court Form 9. [232] I am satisfied that the past performance of Byerwen has been satisfactory. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences? [233] The material indicates no disadvantage to any holder or applicant for an exploration permit or a mineral development licence. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [234] As is clear from my analysis of Glencore’s objection, there is a clear potential for conflict between Glencore’s use of a haul road between the Newlands mine and the Suttor Creek mine and infrastructure being electricity powerlines and a water pipeline co-located on the haul road. The issues relating to the haul road have in my view been adequately addressed in my reasons. [235] A further issue arises as regards Glencore’s registered access to the Suttor Creek mine. As with issues relating to the haul road, all issues relating to the registered access to the Suttor Creek mine have already been addressed in earlier parts of these recommendations. [236] The conditions that I have proposed attempt to resolve the conflicting interests of Byerwen and Glencore in a way which will allow both of these significant projects to -- 59 of 63 -- 60 proceed and therefore cause the best possible land use to occur with respect to those parts of the MLA area where conflict exists. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [237] There were no environmental objections to MLA 70434. There were also no objections to the draft EA relating to MLA70434. [238] The evidence of Mr Wallin67 clearly shows that any adverse environmental aspects will be adequately addressed by the conditions proposed by the draft EA. Section 269(4)(k) – Will the public right and interest be prejudiced? [239] There is clear public interest in having the Byerwen mining project proceed due to the significant employment opportunities as well as the royalty payments which will flow to the State of Queensland. Likewise, however, there is certainly a clear public interest in ensuring that Glencore’s Suttor Creek mining operations continue so that employment at Suttor Creek and the payment of royalties from that mine to the State can also continue. [240] In my view the public interest is best served by Glencore’s mining operations continuing and Byerwen’s project coming online. The proposed conditions for MLA 70434 help ensure that this occurs. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [241] My comments with respect to the proceeding criterion are relevant to this criterion. [242] The material indicates good reason why MLA 70434 should be granted. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [243] The materials show that this significant project is for the extraction of a valuable resource in accordance with the environmental processes. [244] I am satisfied that the proposed mining operation is an appropriate land use of the application land, provided that the conditions I have recommended are made. Conclusion [245] Taking all of the conclusions that I have reached in the reasons set out above into account, I consider that the orders and recommendations that I make in this matter should be along the following lines. [246] Firstly, I direct the Registrar of the Land Court to write to the Honourable the Minister responsible for the MRA, bringing to the attention of the Honourable the Minister my concerns regarding Byerwen’s allegations of illegal activity being undertaken by Glencore on the haul road between ML 4748 and ML 4761, including issues relating to 67 Exhibit 7. -- 60 of 63 -- 61 the placement of infrastructure being an electricity line and a water pipeline along such haul road, as set out in paragraphs [124], [133] and [134] of these reasons. [247] I recommend that MLA 10355, MLA 10356 and MLA 70436 be granted, noting in particular areas of restricted land (Category B) contained within those MLA’s as agreed between Byerwen and Colinta or as determined by these reasons. [248] I also consider it appropriate that MLA 70434 be granted, subject to the following: (a) The insertion of a special condition that the holder of MLA 70434 is prevented from undertaking any extractive mining operations on the area starting at the western side of the registered access to MLA 4761 and continuing to the eastern boundary of MLA 70434 prior to 1 January 2033 unless the consent of the holder of registered access to ML 4761 is first obtained; (b) A special condition that the holder of MLA 70434, despite the preceding special condition, is permitted to undertake exploration drilling and related activities at all times on that part of MLA 70434 which lies to the east of the registered access to MLA 4761; (c) A special condition that the holder of MLA 70434 only undertake exploration activities on the registered access to MLA 4761 with either the consent of the holder of ML 4761 or by providing alternative access to MLA 4761. (d) So much of the area of MLA 70434 which underlies Collinsville-Elphinstone Road or lies to the north of Collinsville-Elphinstone Road be excluded from the grant of MLA 70434; and (e) That MLA 70434 receive a special condition that the holder of MLA 70434 is to comply with all its EIS requirements, noting however the amendment to commitment 264 as detailed in this decision. [249] The order with respect to MLA 70434 will not be made final until 4pm, 16 December 2015 or until such further Order of the Court so as to allow Byerwen to make further submissions to the Court as to why the area under and to the north of Collinsville- Elphinstone Road as contained within MLA 70434 should not be excluded from MLA 70434, and to allow Glencore to have time to consider whether it has rights because of its objections to comment on this issue. Expressly, I leave open the option of Byerwen to apply to reopen the hearing of the application for MLA 70434, and for Glencore to apply to reopen the hearing of the objections to MLA 70434, should either of them consider this necessary. -- 61 of 63 -- 62 Orders 1. The Registrar of the Land Court directed to write to the Honourable the Minister responsible for the MRA, bringing to the attention of the Honourable the Minister the Court’s concerns regarding Byerwen’s allegations of illegal activity being undertaken by Glencore on the haul road between ML 4748 and ML 4761, including issues relating to the placement of infrastructure being an electricity line and a water pipeline along such haul road, as set out in paragraphs [124], [133] and [134] of these reasons. 2. Recommendation made to the Honourable the Minister responsible for the MRA that MLA 10355 be granted, noting in particular areas of restricted land (Category B) contained within MLA 10355 as agreed between Byerwen and Colinta or as determined by these reasons. 3. Recommendation made to the Honourable the Minister responsible for the MRA that MLA 10356 be granted, noting in particular areas of restricted land (Category B) contained within MLA10356 as agreed between Byerwen and Colinta or as determined by these reasons. 4. Recommendation made to the Honourable the Minister responsible for the MRA that MLA 70436 be granted, noting in particular areas of restricted land (Category B) contained within MLA 70436 as agreed between Byerwen and Colinta or as determined by these reasons. 5. Recommendation made to the Honourable the Minister responsible for the MRA that MLA 70434 be granted, subject to the following: (a) The insertion of a special condition that the holder of MLA 70434 is prevented from undertaking any extractive mining operations on the area starting at the western side of the registered access to ML 4761 and continuing to the eastern boundary of MLA 70434 prior to 1 January 2033 unless the consent of the holder of registered access to ML 4761 is first obtained; (b) A special condition that the holder of MLA 70434, despite the preceding special condition, is permitted to undertake exploration drilling and related activities at all times on that part of MLA 70434 which lies to the east of the registered access to ML 4761; (c) A special condition that the holder of MLA 70434 only undertake exploration activities on the registered access to ML 4761 with either the consent of the holder of ML 4761 or by providing alternative access to ML 4761; -- 62 of 63 -- 63 (d) So much of the area of MLA 70434 which underlies Collinsville-Elphinstone Road or lies to the north of Collinsville-Elphinstone Road be excluded from the grant of MLA 70434; and (e) That MLA 70434 receive a special condition that the holder of MLA 70434 is to comply with all its EIS requirements, noting however the amendment to commitment 264 as detailed in this decision. 6. Order 5 hereof with respect to MLA 70434 will not be made final until 4pm 16 December 2015 or until such further Order of the Court so as to allow Byerwen to make further submissions to the Court as to why the area under and to the north of Collinsville-Elphinstone Road as contained within MLA 70434 should not be excluded from MLA 70434, and to allow Glencore to have time to consider whether it has rights because of its objections to comment on this issue, and leaving open the option of Byerwen to apply to reopen the hearing of the application for MLA 70434, and for Glencore to apply to reopen the hearing of the objections to MLA 70434, should either of them consider this necessary. PA SMITH MEMBER OF THE LAND COURT -- 63 of 63 --