CEC Mt Isa Pty Ltd, Re [2010] QLC 105

LAND COURT OF QUEENSLAND CITATION: Re CEC Mt Isa Pty Ltd [2010] QLC 105 PARTIES: In the matter of Application for Mining Lease No 90189 by CEC Mt Isa Pty Ltd FILE NO: MRA119-10 PROCEEDING: Application for mining lease DELIVERED ON: 8 July 2010 DELIVERED AT: Brisbane MEMBER: Mr WA Isdale ORDERS: 1. Hearing dispensed with. 2. I recommend to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that Mining Lease No. 90189 be granted over the whole of the application area for a term of 21 years. CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION Mineral Resources Act 1989 ss 245, 269(4) APPEARANCES: Not applicable – Heard on the Papers [1] This is an application made under s.245 of the Mineral Resources Act 1989 (the Act) by CEC Mt Isa Pty Ltd for a mining lease over 107 ha of land located in the Stony Creek area, south of Lake Moondarra, Mt Isa. The mining lease is sought for the purpose of quartzite extraction and processing plant, storage, workers accommodation, stockpiles, workshop, transport and associated infrastructure. [2] The application was lodged in the office of the Mining Registrar at Mt Isa on 24 October 2008. [3] Public Notice of the application was given pursuant to s.252B of the Act and s.211 of the Environmental Protection Act 1994. [4] At the conclusion of the objection period on 5 May 2010 the Mining Registrar had not received any objections. Land Court may dispense with hearing [5] Section 270 of the Act provides the procedure to be followed where no objections are lodged. Although s.270 was omitted from the Act by s.51 of Act No. 17 of 2010 -- 1 of 5 -- 2 which commenced on 21 April 2010, s.773 of the Act preserves its operations in respect of this application, which was lodged prior to 21 April 2010. [6] Section 270 allows the Court to exercise a discretion to dispense with a hearing if the provisions of Part 7 of the Act, other than those which require a hearing, have been complied with and where no objection has been lodged. The material provided by the Applicant to the Mining Registrar and sent by the Registrar to the Court is sufficient to allow the Court to take into account and consider all matters set out in s.269(4) of the Act. That material also satisfies the Court that all relevant provisions of Part 7 of the Act have been complied with in respect of the application. Certificate of Application for Mining Lease No. 90189 was issued on 5 March 2010 and Certificate of Public Notice for Mining Lease No. 90189 was issued on 5 March 2010. The statutory declaration of Ben Gready dated 6 May 2010 is un-contradicted evidence that the required service on the landowners and the local authority took place as did publishing of a suitable notice in the North West Star newspaper. The Mining Registrar has accepted that there was substantial compliance with the requirement for advertising in the newspaper, which was one day late. The Additional Information and Statutory Declaration dated 6 May 2010 and filed on behalf of the Applicant contains, at paragraph 8, a request that the Court determine the application without an oral hearing. [7] Being satisfied as required by s.270 of the Act, I exercise the discretion to dispense with a hearing. The criteria in section 269(4) of the Act [8] In considering those criteria I have considered and taken into account all of the material lodged with the Mining Registrar and provided by the Registrar to this Court. Section 269(4)(a) – Have the provisions of the Act been complied with? [9] On 5 March 2010 the Mining Registrar at Mt Isa issued a Certificate of Application for Mining Lease No. 90189 under s.252 of the Act. On 5 March 2010 the Registrar issued a Certificate of Public Notice for Mining Lease No. 90189 under s.252A of the Act. The statutory declaration of Ben Gready dated 6 May 2010 provides evidence of the matters referred to in [6] above. The Registrar’s certificate may only be issued if there has been compliance with the process set out in the Act. There is no evidence to the contrary and I am accordingly satisfied that the provisions of the Act have been complied with. -- 2 of 5 -- 3 There is, however, one matter that must be borne in mind. The mining lease is applied for over the surface of reserve land being Lot 90 on SP 128452. The Department of Environment and Resource Management, the owner of the reserve, has, by letter dated 24 June 2010, consented to the granting of ML 90189 pursuant to s.238 of the Act. Section 238(1)(b) will operate in this case since the consent was not lodged with the Mining Registrar before the end of the last day for objections, 5 May 2010. The approval of the Governor in Council will therefore be required for the granting of this mining lease. The land is also restricted land, see [16] infra. Section 269(4)(b) – Is the area of land applied for mineralised or are the other purposes for which the lease is sought appropriate? [10] The Additional Information and Statutory Declaration for the Land Court dated 6 May 2010 and declared by Ben Gready states, in paragraph 3 that on the basis of the existence of a prospecting permit held by Mt Isa Mines Pty Ltd the proposed mining lease area is mineralised. The Application for Mining Lease specifies the mineral being sought to be quartzite. I am therefore satisfied as required by s.269(4)(b). 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? [11] The Application states that the whole of the surface area is required to properly work the resource. The development will include those things listed in [1] above. With no evidence to the contrary, I am satisfied that this will be an acceptable level of development and utilisation of the mineral resources in the 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 in relation to the matters mentioned in paragraphs (b) and (c) and the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land? [12] The plan provided with the Application shows that the proposed leased area is a regular rectangular shape which does not appear to provide any obvious difficulty to working for the proposed purposes. The size, 107 ha, also appears appropriate for the proposed purposes. I am satisfied in accordance with s.269(4)(d). Section 269(4)(e) – Is the term sought appropriate? [13] The Application is for a term of 21 years; it was originally requested to be for 40 years but was reduced to 21 at the suggestion of the Department. It is stated that this will be required to economically work the resource and amortise capital expenditure. I accept this evidence from the Applicant and am therefore satisfied that the term sought is appropriate. -- 3 of 5 -- 4 Section 269(4)(f) – Does the Applicant have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [14] The Additional Information and Statutory Declaration for the Land Court states that the Applicant claims successful operation of the Warinna quarry and other similar quarries throughout North Queensland. It is also declared that neither the Applicant company nor a director has ever had a show cause notice, conviction, penalty or a tenure cancelled under the Act or the Mining Act 1968. I am therefore satisfied as required by s.269(4)(f). Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [15] In view of the declaration referred to in [14] that there has been no show cause notice, conviction, penalty or cancellation of tenure as there set out, I am satisfied that the past performance of the Applicant has been satisfactory. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or to existing Applicants for exploration permits or mineral development licences? [16] There is an existing mining tenement EPM 13889 within the proposed lease area. It is held by Mount Isa Mines Limited. By letter dated 29 April 2010 that company consents to the present application. The Additional Application and Statutory Declaration for the Land Court declares, in paragraph 5(c), that the proposed lease or operations will not affect the rights of holders of or applicants for any exploration permits or mineral development licences over the proposed mining lease area. I also note that there is no objection to the Application and accordingly am satisfied that there will not be any disadvantage. The land is Restricted Land and has on it quarry, crusher and associated infrastructure owned by the Applicant and operated under the provisions of the Forestry Act 1959; see SPO86699. Section 264(4)(i) – Do the operations to be carried on under the authority of the proposed Mining Lease conform with sound land use management? [17] The current use of the land is low intensity grazing. I am satisfied that the proposed operations conform with sound land use management when environmental obligations and rehabilitation requirements are taken into account. Section 264(4)(j) – Will there be any adverse environmental impacts and, if so, the extent thereof? [18] It would be expected that some adverse environmental impact would not be unlikely. I note that the Department of Environment and Resource Management has, on 8 -- 4 of 5 -- 5 October 2009, provided a draft Environmental Authority number MIN 200841408 relevant to ML 90189. This demonstrates that environmental considerations are in hand with the appropriate body. In view of this I am satisfied that adverse environmental impacts will be able to be maintained at the minimum level. Section 269(4)(k) – Will the public right and interest be prejudiced? [19] The “Additional Information” declaration referred to previously declares that the proposed lease will not affect any public infrastructure over or on the proposed lease area. I am therefore satisfied that the public right and interest will not be prejudiced. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [20] There is no objection before the Court and there is nothing in the evidence which provides any good reason for refusal to grant the mining lease. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [21] The current use is low intensity grazing and there is no evidence of any prospective use of the land other than that after the conclusion of mining. As rehabilitation after mining will make the land once again fit for its present use I find that the proposed mining operation is an appropriate land use. Native Title [22] The application area is over land that may be subject to Native Title. The Applicant must comply with the relevant native title procedure. Recommendation [23] Taking into account all the evidence before the Court and, in particular, the aspects to which specific reference has been made, I recommend to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that the Mining Lease sought by the Applicant company be granted over the whole of the application area for the purposes and 21 year term sought by the Applicant. The Applicant has accepted the Department’s suggestion and reduced its original request for a 40 year term to 21 years. WA ISDALE MEMBER OF THE LAND COURT -- 5 of 5 --