Donovan v Struber & Ors (No. 3) [2012] QLC 28

LAND COURT OF QUEENSLAND CITATION: Donovan v Struber & Ors (No. 3) [2012] QLC 28 PARTIES: Gary Awarua Donovan (applicant) v. Stephen Roy Struber and Dianne Rose Wilson-Struber (respondents) Chief Executive, Department of Environment and Heritage Protection (formerly known as the Department of Environment and Resource Management) (Statutory Party) FILE NO: MRA137-10, EPA209-10, MRA352-09, EPA351-09, MRA354- 09, EPA353-09, MRA356-09, EPA355-09, MRA342-11, EPA352-11, MRA341-11, EPA353-11. DIVISION: General Division PROCEEDING: Applications for Mining Leases Environmental Authorities and Objections thereto. DELIVERED ON: 15 June 2012 DELIVERED AT: Brisbane HEARD AT: Mareeba/Atherton/Brisbane. MEMBER: Mr PA Smith ORDERS: 1. Taking into consideration all of the evidence before me and, in particular that evidence referred to above, and noting in particular the terms of settlement agreed to as between the miner and the landholders, I recommend to the Honourable Minister for Natural Resources and Mines that mining lease applications 20605, 20606, 20607, 20608, 20660 and 20670 each be granted over their entire application area, for the terms set out in paragraph 20 hereto, for the purposes sought by the applicant, subject to the inclusion of special conditions in the mining leases and draft environmental authorities consistent with the details as set out in paragraphs 30, 31 and 32 hereof. CATCHWORDS: Mining – applications for mining leases and associated environmental authorities – objections – Mineral Resources Act 1989 – Environmental Protection Act 1994 Jurisdiction of the Land Court – withdrawal of objections made -- 1 of 11 -- 2 under the Mineral Resources Act 1989 and the Environmental Protection Act 1994 following a negotiated settlement – whether the Court has jurisdiction to continue to make recommendations Mining – recommendation under s.269 Mineral Resources Act 1989 – inclusion of special conditions agreed upon by the parties – whether condition requiring the Mining Registrar to provide the objectors with copies of the mining leases and environmental authorities appropriate Mining – compensation for grant of mining leases – agreement reached between the parties – proceedings dismissed with no order as to costs APPEARANCES: Mr J Trevino of Counsel for the applicant; Mr J Korn of Counsel for the respondent; and Mr N Loos of Counsel for the Statutory Party. SOLICITORS: Preston Law for the applicant; Bottoms English for the respondent; and Legal Services, Department of Environment and Heritage Protection for the Statutory Party. Background [1] Gary Awarua Donovan (“the miner”) has lodged nine mining lease applications with the Mining Registrar, Mareeba, seeking authority to undertake mining operations on land in the Palmerville area of Queensland. Each application is either wholly, or partly, over pastoral land owned by Stephen Roy Struber and Dianne Rose Wilson-Struber (“the landholders”). The landholders1 lodged objections to the grant of each mining lease under the provisions of the Mineral Resources Act 1989 (“the MRA”). The landholders have also lodged objections under the Environmental Protection Act 1994 (“the EP Act”) relating to each of the nine mining leases. The landholders` objections with respect to each mining lease relate to the environmental authority application, and for some matters also relate to the draft environmental authority for the application and the conditions included in the draft environmental authority for the application. The Chief Executive, Department of Environment and Heritage Protection (DEHP)2 is a Statutory Party with respect to each EP Act matter. [2] The hearing of four of the mining lease applications (MLA’s) and the objections thereto commenced on 20 November 2009. The hearings relating to objections to another MLA’s were adjourned, pending the outcome of the first four mining lease applications. 1 In some matters, Mr Struber is the only objector, whilst in others both landholders are objectors. 2 DEHP is the entity now responsible for the EP Act, replacing the Department of Environment and Resource Management. -- 2 of 11 -- 3 Subsequently, the miner lodged an additional two mining lease applications which were also subject to objection by the landholders. [3] There were significant issues between the landholders and the miner, as well as issues involving the Statutory Party. In interlocutory proceedings, various declarations and other orders were sought. These issues were resolved in part by the Court’s decision in Donovan v Struber & Ors3. Ultimately, the hearing of all mining lease applications and objections thereto, together with determinations of compensation with respect to each mining lease application4 were listed for hearing commencing in Cairns on Monday, 4 June 2012. The hearing was listed for one full sitting week, although there was some concern that the hearing of all matters may have actually taken perhaps considerably longer. The affidavit evidence filed was substantial and there were a number of expert witnesses to be called. [4] Shortly before the hearings were due to commence, Counsel for the Statutory Party approached the Court at a review and directions hearing requesting that the parties be ordered to attend a Preliminary Conference5 in an attempt to, at least, narrow the issues between the parties. It was conceded that it would be very difficult to resolve all of the issues between the parties. The Court subsequently ordered that a mediation be undertaken for a period of one day, with the costs of an independent mediator being borne equally between the three parties. The parties went on to engage Professor Robert Scott, a retired Member of the Land Court, who commenced the mediation on Thursday, 31 May 2012. [5] The mediation went exceptionally well. It continued for much longer than the anticipated day. When the matters came on for the resumed hearing on Tuesday, 5 June 2012, Counsel for each of the parties informed the Court that settlement had been reached in all respects in relation to all 27 active cases before the Court, save for the question of costs as between the miner, the landholder and the Statutory Party with respect to the objections to the mining leases under both the MRA and the EP Act. [6] In accordance with the terms of settlement, a copy of which was provided to the Court, the miner has agreed to withdraw mining lease applications MLA20594, MLA20564 and MLA20565. For their part, the landholders have agreed to withdraw their objections to mining leases applications MLA20605, MLA20606 and MLA20607, MLA20608, MLA20660 and MLA20670. It has further been agreed as between the miner, the landholders and the Statutory Party that they consider it appropriate for agreed special conditions to be incorporated into both the mining leases and environmental authorities. I will deal with this nature of the matter later. 3 [2011] QLC0045. 4 In total, there were 27 active files as at 1 June 2012. 5 A Preliminary Conference having been conducted by the Judicial Registrar of the Court in December 2011. -- 3 of 11 -- 4 [7] Orders were made with respect to each compensation matter, dismissing each matter with no order as to costs, as agreement had been reached between the miner and the landholders and that agreement is in the process of being lodged with the Mining Registrar with respect to the six remaining MLA’s. [8] In normal circumstances, the remaining six mining lease applications would proceed with the miner as the only party. However, as issues relating to costs with respect to the nine mining lease applications remain outstanding, both the landowners and the Statutory Party remain parties to the proceedings as regards final determination to costs. Terms of Settlement [9] As regards the six mining lease applications remaining for consideration, the following terms of settlement are relevant6: “3. General condition of Mining Leases (ML20605, ML 20606, ML20607, ML20608, ML20660. ML20670): 3.1 The miner agrees to the following "before and after” compliance monitoring regime: The Miner will pay the costs of an annual environmental compliance monitoring regime in relation to: (a) Water quality including turbidity; (b) Arsenic and mercury; (c) Riparian vegetation; (d) Bank stability; (e) Stream stability including preservation of rock bars and deep pools; (f) The nature and extent of rehabilitation activities on mined areas; (g) Compliance with the Standard Environmental Conditions of the Code of Environmental Compliance for Mining Leases dated January 2001. The environmental compliance monitoring regime will be undertaken by an independent expert (‘the expert’). 3.2 The expert shall be tasked to carry out a 'before and after' monitoring regime as follows: 3.3 Prior to the commencement of mining, the expert will undertake a background inspection in relation to the land to be mined in respect of the matters set out above at 3.1(a) to 3.1(g) and prepare a background report; 3.4 Prior to the commencement of the wet season (i.e. not before 1 September and no later than 30 November) the expert will undertake an inspection of land subject to mining in respect of the matters set out above at 3.1(a) to 3.1(g) and prepare a compliance report; 3.5 The expert will provide copies of the background report and compliance report prepared in accordance with this paragraph to: (a) the Miner; (b) the Statutory Party; and (c) the landholders. 6 Terms of Settlement between miner and landholder dated 1 June 2012. -- 4 of 11 -- 5 4. MLA 20605 - Additional conditions 4.1 Subject to Identification of the dams and their catchments: (a) The miner will not access the dams within ML 20605 for water supply purposes. (b) The miner will not build any other dam wall or other obstacle so as to affect by way of reduction the catchment for those dams. 5. MLA 20608 - Additional Conditions Plan of Operations and the Dam Wall 5.1 In respect of the discrete areas described as Dawson’s Hill and the breached dam adjacent to Dawson's Hill, the Miner will submit a proposal, in written form in respect of each area to the expert that deals with: (a) The environmental values (as if the pre-existing mine contaminants did not exist) (b) Potential adverse and beneficial impacts on the environmental values. (c) Any code of environmental compliance and standard conditions that are to apply. (d) The extent of the environmental commitment the applicant proposes for mining activities to protect or enhance the environmental values in the event the code does not apply or address an impact. (e) Contain enough other information to allow the independent expert to decide whether mining should proceed and if so the conditions to apply. (f) A copy of the miner's proposal is to be provided to the land holder who may comment on it. (g) The expert will consider and if appropriate approve the mining in respect of each area. Mining will not take place on either of those areas unless the expert approves the proposal. (h) The approval or otherwise of the expert shall be communicated to the miner, the landholder and the Statutory Party. 5.2 Should the Miner mine the dam area referred to in paragraph 5.1 above, the Miner will rehabilitate the dam wall at the conclusion of mining and will, in accordance with Condition 36 of the Standard Environmental Conditions of the Code of Environmental Compliance for Mining Lease Projects 2001, consult with the Landholder about obtaining written agreement that the Landholder will take responsibility for the dam at the surrender of the lease. 6. Independent Expert Appointment 6.1 The Parties agree to appoint an expert in relation to matters covered by conditions 3 and 5. 6.2 The process for appointing an expert will be as follows:- (a) The Miner will give the Landholder a notice requesting that they nominate a list of experts for the purpose this Agreement; (b) The Miner and the Landholder will exchange a list of experts being a maximum of 4 persons together with copies of each -- 5 of 11 -- 6 proposed experts CV for appointment to a panel within 10 Business Days of the notice in 6.2(a) above. (c) The Miner will provide a consolidated list of experts together with a nomination of one expert from the list to be the independent expert to the Landholder within10 business days. (d) Where the nominated expert is agreed by the Landholder they will give notice to the Miner within 28 days of receipt of the consolidated list in 6.2(c) above. (e) In the absence of agreement of the nominated expert by the Landholder, or such other expert by the Parties within 28 days from 6.2(c) the Miner will provide the consolidated panel of experts, together with any CVs and any written submissions (the submissions need not be exchanged), to Professor Robert Scott who will decide the expert to be engaged for the purposes of this Agreement. (f) In the event that Professor Scott is unable to appoint an expert then within 28 days the Miner will make a request to the President of the Bar Association for a member of the association in Cairns to nominate an expert from the panel. 6.3 An Expert appointed under this clause will continue for such period as the expert is prepared to accept the position or the parties agree in writing to the substitution of a further expert. 6.4 All documents and notices required to be given under this Agreement to each of the Parties will be given by registered post to the Party's solicitors being Mrs Anne English or Mr Andrew Kerr unless otherwise advised. 7. Variation of Access (ML20605, 20606, 20607, 20608, 20660, 20670) 7.1 The Miner agrees to amend the access to the above MLAs in terms of the attached map initialed by the parties. The amendment will be effected by way of an application to vary access made to the Mining Registrar at Mareeba. 8 Property Tracks 8.1 The Miner acknowledges the existence of property tracks within ML20605, ML20606 and ML20607, ML20608. The Miner agrees that if he undertakes mining which affects these property management tracks he will ensure that an equivalent tracks is constructed so as to allow for continuing use of the tracks.” [10] On Wednesday, 6 June 2012, the solicitor for the Statutory Party informed the Court that the Statutory Party had no issue with respect to the proposed special conditions of the relevant environmental authorities with respect to the six remaining mining lease applications. Jurisdiction of the Land Court [11] Following amendments to the MRA in 20107 amendments were made to s.265 of the MRA to the extent that the Land Court no longer has jurisdiction to deal with mining lease applications to which no objection is duly made. However, in the matters currently under consideration, due to the lodgement of objections the Land Court was seized of jurisdiction, 7 See Act No. 17 of 2010. -- 6 of 11 -- 7 both under the MRA and the EP Act. As I said in the matter of Genesis Resources Ltd8 at paragraph 5: “[5] In my view, it is necessary for the Court to make a recommendation to the Minister in this matter under the ‘new’ s.265 even though there are no longer any properly made objections. Having been seized of jurisdiction by the referral from the Mining Registrar, and in the absence of any clear legislative intent for that jurisdiction to end on the withdrawal of the objections, the Court must exercise its jurisdiction in accordance with the Act and make its recommendation to the Minister pursuant to s.269.” [12] General issues relating to MLA20605, MLA20606, MLA20607, MLA20608, MLA20660, and MLA20670 leaving to one side the special conditions agreed between the parties as set out above, I will first consider the relevant criteria as set out in s.269(4) of the MRA. It should be noted that the Court has a considerable amount of filed material before it with respect to each of these mining lease applications, and has already had a number of days of sworn evidence provided with respect to some of these applications. The Court also undertook a detailed inspection of the land in the vicinity of the MLA’s and also inspected mining operations currently undertaken by the miner. [13] Clearly, in light of the detailed evidence filed by the landholders, significant comment could be made with respect to a number of criteria under s.269(4) of the MRA. However, I consider it unnecessary to go into any great detail whatsoever with respect to each criteria in light of the mediated agreement entered into between the parties which has seen the miner abandon three mining lease applications and the landholders withdraw their objections to six mining lease applications and the environmental authorities thereto. [14] In considering the provisions of s.269(4) of the MRA, I have also taken into account the significant material lodged with the Court by the Mining Registrar with respect to each MLA. [15] I now turn to consider each of the provisions of s.269(4) of the MRA. My comments regarding each provision relate to all six mining lease applications. Section 269(4)(a) – Have the provisions of the Act been complied with? [16] The Mining Registrar issued Certificates of Application with respect to all six applications. The Mining Registrar can only issue a Certificate if satisfied that the applicant is eligible to apply for the mining lease and has complied with the requirements of the MRA with respect to the application.9 In my opinion, there is sufficient evidence of compliance with the provisions of the Act in respect to this application. 8 [2011] QLC 0022. 9 See s.252 of the MRA. -- 7 of 11 -- 8 Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [17] I am satisfied from the applicant’s evidence that the land applied for is mineralised. The leases are located within a known mining area. 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? [18] The material before me reveals the applicant’s proposed mining operations and program for each lease, and shows appropriate development and utilisation of the mineral resources within each area applied for. 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? [19] The material before me appears to indicate mining lease applications of an appropriate size and shape in light of the proposed mining operations. Section 269(4)(e) – Is the term sought appropriate? [20] The term sought for each MLA is as follows: (a) MLA 20605 – 25 years (b) MLA 20606 – 25 years (c) MLA20607 – 15 years (d) MLA20608 – 15 years (e) MLA20660 – 15 years (f) MLA20670 – 15 years. [21] I consider the term of each lease application appropriate. Section 269(4)(f) – Has the applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [22] The material indicates that the applicant has the financial and technical capabilities to carry on the mining operations. The applicant has detailed his considerable mining experience. I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the applicant been satisfactory? [23] In light of the terms of settlement, and taking into account the special conditions in particular, I am satisfied that, so long as those special conditions are made, there are no concerns with regards to the applicant’s past performance. 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? [24] There is nothing in the material to indicate any disadvantage to any other person. -- 8 of 11 -- 9 Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [25] There is no evidence before me to suggest that the proposed operations 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: [26] Draft environmental authorities were publicly advertised. Although there were objections lodged, they were withdrawn following negotiations. There is no evidence to suggest that the environmental impacts will not be adequately dealt with by compliance with the conditions of the authorities and the special conditions thereto. Section 269(4)(k) – Will the public right and interest be prejudiced? [27] There is nothing in the material to indicate any prejudice to the public right and interest. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [28] There was no evidence before me that indicated any good reason why these applications should be refused. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [29] The materials show that the projects are for the extraction of potentially valuable resources in accordance with the environmental processes. Significantly, all objections have been withdrawn following negotiations between the parties, for which all are to be congratulated. I am satisfied that the proposed mining operations are an appropriate land use. Special Conditions [30] Mr Korn of Counsel for the landholders submitted that the various special conditions set out in the terms of settlement should be selectively applied to the various MLA’s and environmental authorities relating to the six existing mining lease applications. Mr Korn’s submissions have been accepted by both the miner and the Statutory Party. Accordingly, the special conditions from the terms of settlement should, in my view, be applied to the mining lease applications and environmental authorities as follows: (a) as regards the mining leases under the MRA relating to ML20605, ML20606, ML20607, ML20608, ML20660 and ML20670 special conditions in accordance with conditions 7 and 8 of the terms of settlement; (b) as regards the draft environmental authority pursuant to s.222(b) of the EP Act with respect to: (i) MIC 200837408 for MLA20605, conditions 3, 4 and 6 of the terms of settlement. -- 9 of 11 -- 10 (ii) MIC 200837408 for MLA20606, conditions 3 and 6 of the terms of settlement. (iii) MIC 200837408 for MLA20607, conditions 3 and 6 of the terms of settlement. (iv) MIC 200837408 for MLA20608, conditions 3, 5 and 6 of the terms of settlement. (v) MIC 201211710 for MLA20660, conditions 3 and 6 of the terms of settlement. (vi) MIC 201211710 for MLA20670, conditions 3 and 6 of the terms of settlement. Provision of Granted ML’s and EA’s to the Landholders [31] The landholders have sought to have special conditions inserted into each mining lease granted with respect to the six MLA’s that, upon grant of the mining leases, the Mining Registrar provide a copy of each lease to the landholder. I consider such a special condition given the rather unique circumstances of these matters, appropriate. I consider it sufficient for the Mining Registrar to provide a copy of each mining lease to the landholder’s solicitor, Messrs Bottoms English. [32] Likewise, the landholders have also suggested that the environmental authorities with respect to each of the MLA’s also be provided by the Mining Registrar, as agent/delegate for the Statutory Party, to the landholder upon grant of each environmental authority. I consider this also appropriate given the circumstances of this matter, and again consider it appropriate that copies of the granted environmental authorities be provided to the landholders via their solicitor, Messrs Bottoms English. Environmental Objections [33] It should be noted that I have not made any recommendation to the Minister responsible for the EP Act. This is because of the operation of the EP Act Chapter 5, Part 6, Subdivision 2, and in particular ss. 227 and 228. In my view, the EP Act operates differently to the MRA in circumstances where objections are withdrawn after the land Court is seized of jurisdiction. It is a matter for the Administering Authority to ensure that the terms agreed to by the miner and landholder, to which it has indicated its support, are incorporated into the relevant Environmental authorities. [34] As I accept that there is a possibility for confusion, I have included reference to all special conditions, including those best suited to the Environmental Authorities, in this recommendation which, because of the operation of the relevant statutes, must be only to the Minister responsible for the MRA. -- 10 of 11 -- 11 Recommendations 1. Taking into consideration all of the evidence before me and, in particular that evidence referred to above, and noting in particular the terms of settlement agreed to as between the miner and the landholders, I recommend to the Honourable Minister for Natural Resources and Mines that mining lease applications 20605, 20606, 20607, 20608, 20660 and 20670 each be granted over their entire application area, for the terms set out in paragraph 20 hereto, for the purposes sought by the applicant, subject to the inclusion of special conditions in the mining leases and draft environmental authorities consistent with the details as set out in paragraphs 30, 31 and 32 hereof. PA SMITH MEMBER OF THE LAND COURT -- 11 of 11 --