Baralaba Coal Pty Ltd, Re [2010] QLC 80

LAND COURT OF QUEENSLAND CITATION: Re Baralaba Coal Pty Ltd [2010] QLC 80 PARTIES: In the matter of Application for Mining Lease No 80157 by Baralaba Coal Pty Ltd FILE NO: MRA015-10 PROCEEDING: Application for mining lease DELIVERED ON: 18 May 2010 DELIVERED AT: Brisbane MEMBER: Mr WA Isdale ORDER/S: 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. 80157 be granted over the whole of the application area for a term of 30 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 Baralaba Coal Pty Ltd for a mining lease over 151.3 ha of land located approximately 4 km north of the township of Baralaba. The mining lease is sought for coal mining and the precise location and boundaries of the land are set out in the application which includes a detailed plan of what is there described as the “Proposed Baralaba Extended Mining Lease”. [2] The application discloses that the proposed lease will allow the expansion of the current mining operations on ML5605. It is stated that the area applied for contains outcropping coal which will be mined by open cut methods and that the remainder of the area will be used for the placing of overburden. -- 1 of 7 -- 2 [3] The application was lodged in the office of the Mining Registrar at Rockhampton on 14 January 2009. [4] Public Notice of the application was given pursuant to s.252B of the Mineral Resources Act 1989 and s.211 of the Environmental Protection Act 1994. The period within which objections were required to be lodged concluded on 21 January 2010. [5] At the conclusion of the objection period the mining registrar had received five valid objections. These were made by the following individuals: 1. Mr Robert David Hoadley 2. Mr Ross MacLean 3. Mr Kim House 4. Mr Geoffrey John Becker 5. Ms Gloria Margaret Becker The mining registrar duly referred the matter to the Land Court on 22 January 2010. [6] Written notices of the withdrawal of objection signed by the objectors have been received as follows: 1. Mr Robert David Hoadley (withdrawn 26 March 2010) 2. Mr Ross MacLean (withdrawn 25 March 2010) 3. Mr Kim House (withdrawn 26 March 2010) 4. Mr Geoffrey John Becker (withdrawn 28 January 2010) 5. Ms Gloria Margaret Becker (withdrawn 28 January 2010) The result is that the application is now free of any objection to it. Request to dispense with hearing – Section 270 [7] A hearing may be dispensed with if the Court is satisfied of the matters set out in s.270(1) of the Act. This section was omitted from the Act by s.51 of Act No. 17 of 2010 which commenced on assent on 21 April 2010 (s.15A Acts Interpretation Act 1954). [8] Although now omitted from the Act, s.270’s operation has been preserved by what is now s.773 of the Act. The presently relevant parts of s.773 provide as follows: (3) Subsection (4) applies to an application for a mining lease if the mining registrar— (a) … (b) had, before the commencement, referred the application to the Land Court, and no recommendation about the application had been made by the Land Court to the Minister before the commencement. (4) This Act as in force immediately before the commencement applies to the Land Court for dealing with, or continuing to deal with, the application. -- 2 of 7 -- 3 [9] The Rockhampton Mining Registrar referred this matter to the Land Court on 22 January 2010 so accordingly the previous s.270 is to be applied in this case. [10] Although not necessary in the present case, Rule 35 of the Land Court Rules 2000 provides an independent mechanism for making a decision in the absence of an oral hearing. [11] Applying s.270(1)(a), I may dispense with a hearing having been satisfied that Part 7, other than the provisions requiring a hearing, have been complied with. The material provided by the applicant and the mining registrar covers each of the criteria that must be considered for the purpose of making the Court’s recommendation to the Honourable the Minister. I am satisfied that there is sufficient information before me for this matter to be properly determined. [12] Section 270(1)(b) permits the exercise of the discretion to dispense with a hearing where “no objection to the grant of the mining lease has been duly lodged”. As already discussed, objections were duly lodged but have all been withdrawn by writing under the signature of the objectors. In view of the fact that at present there are no objections, I apply a purposive interpretation to s.270(1)(b) and find that since there is no objection now, which is the time the matter is being considered by the Court, s.270(1)(b) does not provide any barrier to the exercise of the discretion to dispense with a hearing. [13] Also relevant to the exercise of this discretion is the statutory declaration dated 28 January 2010 and filed on that day. Made by Mr Alexander Brown Armstrong on behalf of Baralaba Coal Pty Ltd. It contains, in clause 8, a request that this application be heard on the papers without an oral hearing. [14] For those reasons I have exercised the discretion contained in s.270(1) in favour of dispensing with a hearing. [15] Section 270(2) requires that the Land Court indicate in those circumstances where the hearing has been dispensed with that it has taken into account and considered all matters in respect thereof set out in s.269(4) of the Act. I so indicate and will refer to those matters in more detail. The criteria in section 269(4) of the Act [16] In taking into account and considering the criteria listed in s.269(4) I have relied on the “Additional Information and Statutory Declaration” filed on behalf of the applicant company as well as all of the other material lodged with the mining registrar and provided by the registrar, along with his report, to this Court. I will -- 3 of 7 -- 4 consider each part of s.269(4) seriatim and refer to prominent aspects of the evidence considered when addressing each point. Section 269(4)(a) – Have the provisions of the Act been complied with? [17] On 3 December 2009, the mining registrar at Rockhampton issued a Certificate of Public Notice for Mining Lease no. 80157. By s.252A of the Act such a certificate may only be issued if a certificate of application for a mining lease has been endorsed under s.252(2). Section 252(1) provides that such a last-mentioned certificate requires the mining registrar to first be satisfied that the applicant for a mining lease is eligible to apply for it and has complied with the requirements of the Act with respect to that application. The mining registrar endorsed a Certificate of Application for Mining Lease no. 80157 on 2 March 2009. This recites that the lease was marked out on 10 January 2009 at 10am and that the application was lodged on 14 January 2009 at 12pm. In view of the evidence of regularity of process, the presumption of regularity and the absence of any evidence to the contrary, I consider that the provisions of the Act have been complied with. Section 269(4)(b) – Is the area of land applied for mineralised or are the other purposes for which the lease is sought appropriate? [18] The Application for Mining Lease (the application) states in item 3.6 that the application area contains outcropping coal which will be mined using open cut methods and the remainder of the area will be used for overburden placement. I am satisfied that there is mineralisation namely coal and that the placement of overburden on the remainder of the area is appropriate. Item 11.2 states that the whole of the surface area will be used for mining coal or for associated mining activities and infrastructure. I am satisfied that this is appropriate. 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? [19] The applicant, in clauses 3.4 and 3.6 of the application, states that the proposed mining lease will allow expansion of an existing operation and that the area will be mined by open cut methods and the area not so mined will be used for placing overburden. I find that there will be an acceptable level of development and utilisation of the mineral resources within the area applied for. -- 4 of 7 -- 5 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? [20] The plan included in the application shows that the proposed lease will integrate into existing leased areas to form a regularly shaped total area the shape of which ought to favour working of the applicant’s operations in a co-ordinated manner. I am satisfied that the size and shape is appropriate in relation to the matters mentioned in paragraphs (b) and (c) and the type and location of the activities proposed and their likely impact on the surface of the land. The open cut mining and placing of overburden on the leased area as proposed is an expansion of current mining operations and the proposed configuration of the lease, its area and location as well as the proposed uses and impact on the surface area of the land are appropriate. Clause 11.2 of the application states that the whole of the surface area will be used for mining coal or associated mining activities (placing overburden would be one such activity) and infrastructure. These are all activities that are appropriate to this land. Section 269(4)(e) – Is the term sought appropriate? [21] The term applied for, see clause 3.3 of the application, is 30 years. This is a substantial period, the length of which needs to be viewed in relation to the substantial investment of treasure and time required to bring a coal mining area into production and to maintain that production. There is no evidence to indicate that the term sought is not appropriate and there are no objections to the application. Should circumstances dictate it, the applicant could avail itself of the option of surrendering any balance of the lease term if mining and rehabilitation is able to be carried out early. I am satisfied that the term sought is appropriate. Section 269(4)(f) – Does the Applicant have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [22] As this proposed lease is for the purpose of expanding current mining operations, see clause 3.4 of the application, I am satisfied that the applicant has the necessary financial and technical capabilities. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [23] There is no evidence to the contrary and there are now no objections. In view of that I am satisfied that the applicant’s past performance has been satisfactory. -- 5 of 7 -- 6 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? [24] There are no other holders of or applicants for such tenure who could be affected by the grant. This is indicated by the absence of objections. Section 269(4)(i) – Do the operations to be carried on under the authority of the proposed mining lease conform with sound land use management? [25] The current land use is cattle grazing with limited cultivation; see clause 6.4 of the application. The proposed uses are consistent with the stated aim of expanding current mining operations to the subject area. I am satisfied that the proposed operations conform with sound land use management when environmental obligations and rehabilitation requirements are taken into account. Section 269(4) (j) – Will there be any adverse environmental impacts, and if so, the extent thereof? [26] There exists a comprehensive environmental protection regime under Queensland law such that environmental impacts, for some there surely must be, are assessed and steps taken to control them at an acceptable level for the benefit of everyone and the protection of the environment. I am satisfied that the operation of environmental protection laws as implemented under the watchful eyes of the lawful regulators will maintain any environmental impacts at the minimum level. The Department of Environment and Resource Management has, on 1 December 2009, issued a draft Environmental Authority MIM80330805 in respect of this lease application, demonstrating that environmental considerations are properly in hand with the relevant regulatory authority. Section 269(4)(k) – Will the public right and interest be prejudiced? [27] There is public infrastructure on the area applied for. It is a portion of Hoadley’s Road. Clause 5.3 of the application discloses that the Central Highlands Regional Council and the relevant Queensland authority will be requested to temporarily close Hoadley’s Road, which is an unused road reserve. As the proposed closure is of an unused road reserve and is of a temporary nature I am satisfied that the public right and interest will not be prejudiced in any real way. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [28] There is no objection before the Court and there is nothing in the evidence which shows any good reason for a refusal to grant the mining lease applied for. -- 6 of 7 -- 7 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 current land use is cattle grazing and limited cultivation. There is no evidence of any proposed future use of a different nature after the completion of mining and rehabilitation of the proposed lease area. As rehabilitation would make the land once again fit for its present uses I am satisfied that the proposed activity is an appropriate land use. The same applies in relation to Hoadley’s Road; after mining and rehabilitation, the temporary closure of the road may be reversed and it could once again be available for road use if required at the time. Recommendation [30] 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 term sought by the applicant. WA ISDALE MEMBER OF THE LAND COURT -- 7 of 7 --