Denjim Ltd, Re [2010] QLC 89

LAND COURT OF QUEENSLAND CITATION: Re Denjim Ltd [2010] QLC 89 PARTIES: In the matter of Application for Mining Lease No 10344 by Denjim Pty Ltd FILE NO: MRA135-10 PROCEEDING: Application for a mining lease DELIVERED ON: 25 June 2010 DELIVERED AT: Brisbane MEMBER: His Honour, Mr WL Cochrane, Member ORDER/S: 1. Hearing dispensed with. 2. Application for Mining Lease No. 10344 refused. CATCHWORDS: MINING – MINING LEASE – CONSENT OF OWNER - RECOMMENDATIONS Mineral Resources Act 1989 ss 238, 245, 269, 270 APPEARANCES: Not applicable – Heard on the Papers [1] HIS HONOUR COCHRANE: This is an application by Denjim Pty Ltd under s.245 of the Mineral Resources Act 1989 (“the Act”) for a mining lease over land described as Lot 4004 on PH1398, Road Parcel Segments 8/48170 and 10/48009 on PH2224 and PH1398 and Lot 4924 on PH2224. The subject site is located approximately 38 kilometres east of Charters Towers. Lot 4004 is leasehold land held by Marian Jessie and Vince Cerqui, the road segments are public road and Lot 4924 is leasehold land held by Colin Paul and Noeleen Ann Ferguson. The application is made for the purpose of mining gold, silver, copper, lead, zinc, wolfram, tin and indium. The application was lodged at the office of the Mining Registrar at Charters Towers on the 11th of September 2009. No objection was lodged before the closing date for objections which was the 20th May 2010. [2] Section 238 of the Mineral Resources Act 1989 provides as follows: 238 Mining lease over surface of reserve or land near a dwelling house (1) Unless the Governor in Council otherwise approves, a mining lease may be granted over the surface of a reserve only if— -- 1 of 7 -- 2 (a) the owner of the reserve consents in writing to granting the lease; and (b) the applicant lodges the consent with the mining registrar before the last objection day ends. (2) Also, a mining lease may be granted over the surface of land that was restricted land when the application for the lease was lodged only if— (a) the owner of the land where the relevant permanent building, or relevant feature, is situated, consents in writing to the application; and (b) the applicant lodges the consent with the mining (c) registrar before the last objection day ends. (3) A consent given for subsection (2) can not be withdrawn. [3] The application covers in part a road parcel and accordingly relates to the use of a “reserve” as that term is defined in the Schedule to the Mineral Resources Act. [4] It also appears from a letter written to Mr C & Mrs N Ferguson by Denjim Pty Ltd on the 20th May 2010 that the old open cut which constitutes part of the previously operated Robinson Crusoe mine is now used as a water supply by the Ferguson’s and accordingly that constitutes restricted land (category B) as that term is defined within the Schedule. [5] Further, another letter dated 20th May 2010 to V & M Cerqui makes clear that there are two dams impacted by the mining lease application and accordingly the Cerqui land also appears to be restricted land. [6] Section 238 calls up a requirement for the consent of the owner of a reserve to be lodged with the Mining Registrar prior the last day for objections. Similarly the consent of a landowner in respect of restricted land under s.238(2) is required to be lodged before the last objection day ends. It appears clear that no such consents were lodged and, indeed, there is no evidence that any consent has been given. [7] The best that can be said in respect of each of the individual landowners, leaving aside the matter of the consent of the relative local authority to application being made over road reserve, is that there has been some agreement reached between Mr Brett Duck as representative of Denjim Pty Ltd and each of Colin and Noeleen Ferguson and Vince Cerqui that Denjim Pty Ltd will provide additional details including:-  Possible description of abandoned areas and undertake further discussion;  Provide full copy of mining lease application and mining program;  Provide a statement that no tailings/dam/millsite will be required; -- 2 of 7 -- 3  Provide any additional information required for an environmental authority;  Amend the statement to reflect a better description of the stocking rate of the properties (with respect to the Cerqui’s) exclude a bore located within the mining lease application from the mining lease surface area;  Provide an amended description of the mining lease application with GPS coordinates. [8] None of those steps appear to have been taken and accordingly, absent the consent of the owner of the reserve (s.238(1)(a)) and absent the consent of the owner of restricted land (s.238(2)) the Land Court is bound to have regard to the provisions of s.269(2). [9] Before descending to setting out my decision in respect of this application, it is appropriate to have regard to the other matters as set out in s.269 and to identify the basis upon which this determination is being made upon the papers. Request to dispense with a hearing - Section 270 [10] I may dispense with a hearing if satisfied as to all matters specified in s.270(1). For reasons that follow at paragraph [4], I am satisfied that the provisions of part 7 of the Act have been complied with in respect of the application. The material supplied by the applicant and the Mining Registrar addresses each of the criteria that I must consider in making my recommendation on this application. I am satisfied that there is sufficient information before me to properly consider this matter. The applicant has requested that the matter be dealt with on the papers by a member sitting alone. Accordingly, I order that a hearing of this application be dispensed with. Section 269-Tribunal’s Recommendation on Hearing [11] Section 269 of the Mineral Resources Act 1989 sets out the various steps to be followed and the matters to be considered in making a recommendation on the hearing (on the papers) of an application for a mining lease. [12] Section 269(2) relevantly provides: “(2) The recommendation of the Land Court upon an application for the grant of a mining lease shall consist of— (a) a recommendation to the Minister that the application should be granted or rejected in whole or in part; and (b) in the case of an application that relates to land that is the surface of a reserve and the owner of that reserve does not consent to the grant of a mining lease over that surface area, a recommendation to the Minister as to whether the Governor in Council should consent to the grant of the mining lease over that surface area and, if so, recommend the conditions (if any) to which the mining lease should be subject.” -- 3 of 7 -- 4 [13] In the present case the letter of referral from the Acting Mining Registrar in the Charters Towers District Office (dated 26 May 2010) advises: “… Please note that pursuant to section 238(1) of the Mineral Resources Act 1989 (the MRA), the consent of the owner of a reserve located within ML 10344 was not lodged with the mining registrar prior to the last day for objections. It is required that the Land Court consider this in its recommendation in accordance with section 269(2)(b). Also the consent of the land owner in respect of restricted land under section 238(2) was not received prior to the last objection day. The applicant and land owners have come to a preliminary agreement on this matter as a result of conferences held under section 254(1)(a) of the MRA (refer to Attachment 10).” Section 269(4) criteria [14] In taking account of and considering the criteria specified in s.269(4), I have relied upon the Additional Information and Statutory Declaration sworn by the applicant. I have also relied upon the other material lodged by the applicant with the Department of Mines and Energy and provided by the Mining Registrar to this Court and the Mining Registrar’s Report in relation to this application. These reasons refer to the salient points, but not to all the relevant evidence, that I have taken into account in making my recommendation. Section 269(4)(a) – Have the provisions of the Act been complied with? [15] A Certificate of Application was issued by the Registrar on 21 April 2010 which can only be done if the Registrar is satisfied that the applicant is eligible to apply for the mining lease and has complied with the requirements of the Act for an application under s.245 with respect to marking out, notification, service and posting of documents. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [16] The application seeks the grant of a mining lease for the principal purpose of mining for gold, silver, copper, lead, zinc, wolfram, tin and indium. Gold has been produced from this area. The application covers ground previously operated as the Hadleigh Castle Mine, the Captain and the Robinson Crusoe. [17] The applicant held a current Exploration Permit (Minerals) with Tamaya Resources Limited (in Receivership) and has been advised by Mr Andrew Sallway of Ernst and Young, Manager responsible for the liquidation of Tamaya Resources Limited that the liquidators have disclaimed the tenement in respect of which Tamaya Resources -- 4 of 7 -- 5 Limited holds an interest. The Mining Lease sought is within the constraints of EPM10585. The area is generally known for the production of gold and I am satisfied that the area is generally mineralised. 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 applicant proposes to carry out a program of drilling and then to reopen the pre- existing mine and sublevels to complete further drilling from underground. It is proposed to establish infrastructure on site including housing for mining crews, workshops, offices for safety, mine planning, geology, environmental matters and a mess facility and it is intended to obtain water from underground for toilet and wash down bays. Power for the proposed mining activity will come from the state grid. There is no evidence to suggest there will not be an acceptable level of development and utilisation of the mineral resources in the area. 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 boundaries of the lease have been determined by the area of potential mineralisation. The applicant has sought a mining lease over the whole of the surface area. There is no evidence to indicate the size and shape is not appropriate. Section 269(4)(e) Is the term sought appropriate? [20] The applicant seeks a term of 15 years. There is no evidence to suggest that a 15 year term is inappropriate. The applicant has the option of surrender if mining and rehabilitation is completed before the term expires. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [21] The applicant has sufficient assets, including the mining equipment required, to undertake the proposed operation. I am satisfied the applicant has or has access to the necessary financial and technical resources. Native Title Considerations [22] The application in s.13 of the proforma application form affirms that the application area (including any access land) is over land tenures that may be subject to native -- 5 of 7 -- 6 title and also confirms that the land applied for is not subject to an indigenous land use agreement. [23] It seems to me that Part 12 of the Mineral Resources Act 1989 dealing with Native Title provisions is relevant to this application for a mining lease but because of the other matters set out below, it is not necessary for me to form a view about those matters but it is prudent to mention them at this stage. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [24] There is no evidence to suggest that the past performance of the applicant has not 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? [25] There are no other holders or applicants for exploration tenures who would be affected by the grant. The applicant has been granted an Environmental Authority (Mining Lease) code compliant level 2 mining project approval on the 25th of September 2009. The applicant is now the holder of the Exploration Permit for Minerals No. EPM10585. There is no indication that the land lies within a resources reserve pursuant to the Nature Conservation Act 1992. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform to sound land use management? [26] The current land use is for grazing, cattle breeding and fattening with respect to Lot 4004 and Lot 4924 and Public Road with respect to the road segments. In addition the general area in respect of which a mining lease is sought has previously been subject to mining activity. Section 269(4) (j) – Will there be any adverse environmental impacts, and if so, the extent thereof? [27] An environmental authority issued from the then Environmental Protection Agency (now the Department of Environment and Resources Management) on the 17th of September 2009 with standard environmental conditions contained within the Code of Environmental Compliance (CEC) for Mining Lease Projects. -- 6 of 7 -- 7 Section 269(4)(k) – Will the public right and interest be prejudiced? [28] There is no public infrastructure on the area applied for. There was no evidence before me that indicated any public right and interest would be prejudiced. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [29] There was no evidence before me that indicated any grounds which would justify a refusal of the application, if matters required by s.239 of the Mineral Resources Act 1989 have been complied with. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [30] On the basis of the evidence considered in relation to criteria (i), (j), (k) and (l), I consider the proposed activity is an appropriate land use. Recommendation [31] As indicated above the area over which the mining lease is sought appears to be ripe for and appropriate to use for the purpose of a mining lease. [32] It is equally clear however that there are a number of matters which require clarification with the various owners that have simply not been attended to and accordingly my recommendation is that, at this time, the application for the mining lease be refused. [33] Accordingly, I recommend to the Minister that the application should be rejected in whole. [34] Insofar as the application falls within the ambit of s.269(2)(b) I do not recommend to the Minister that the Governor-in-Council should consent to the grant of the mining lease over the surface area either subject to conditions or at all, the basis for such view being found in those considerable number of matters yet to be attended to by the applicant as set out in the correspondence to two of the landowners dated 20 May 2010. HIS HONOUR, WL COCHRANE MEMBER OF THE LAND COURT -- 7 of 7 --