Burtenshaw & Ors v Dunn [2010] QLC 70 (2010) 31 QLCR 93

LAND COURT OF QUEENSLAND CITATION: Burtenshaw & Ors v Dunn [2010] QLC 70 PARTIES: Rosemary Anne Burtenshaw, Cameron Grenville Frederick Burtenshaw and Gary Frederick Burtenshaw (applicants) v. Gary Dunn (respondent) and Chief Executive, Department of Environment and Resource Management (statutory party) FILE NOS: MRA113/2009, EPA114/2009, MRA115/2009, and EPA116/2009 DIVISION: Land Court of Queensland - General Division PROCEEDING: Applications for mining leases and objections thereto DELIVERED ON: 13 April 2010 DELIVERED AT: Brisbane HEARD AT: Brisbane with video link to Mareeba MEMBER: Mr PA Smith ORDERS: 1. Provided that a special condition consistent with paragraph 38 is made, and subject to the fulfilment of any processes under the Native Title Act 1993 (Cwth), I recommend to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that ML20541 be granted to the applicants for the purposes and term sought by the applicants. 2. Provided that a special condition consistent with paragraph 38 is made, and subject to the fulfilment of any processes under the Native Title Act 1993 (Cwth), I recommend to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that ML20542 be granted to the applicants for the purposes and term sought by the applicants. 3. The applicants’ strike-out application is dismissed. -- 1 of 19 -- 2 4. The applicants pay the objector's costs of the strike-out application to be agreed between the parties or assessed. 5. The objector pay 50% of the applicants' costs of the hearing, including reserved costs but excluding any costs relating to the strike-out application, to be agreed between the parties or assessed. 6. I direct the Registrar of the Court to forthwith provide a copy of this decision to the Mining Registrar, Mareeba, drawing the Mining Registrar's particular attention to paragraphs 47, 51, 63 and 67 hereof. CATCHWORDS: Mining – mining Lease – objections - strike-out application – precautionary principle – public roads – use of chemicals – conditions – unreasonable conduct during hearing - costs Mineral Resources Act 1989 Environmental Protection Act 1994 APPEARANCES: Mr A Palmer, solicitor, Rees R and Sydney Jones, solicitors, for the applicants Mr Dunn, self-representing, assisted by Ms Ford Mr A Kwan, legal officer, Department of Environment and Resource Management, for the statutory party Background: [1] The Court has before it two applications for mining leases, both located on Coolgarra Station, Mt Garnet within the Mareeba mining district. The mining lease applications are lodged in the names of Rosemary Anne Burtenshaw (33.3334%); Cameron Grenville Frederick Burtenshaw (33.3333%) and Gary Frederick Burtenshaw (33.3333%) (“the applicants”). The applicants are the owners of Coolgarra Station. [2] Mr Gary Dunn (the objector) lodged objections to both mining lease applications. The objections are made under the Mineral Resources Act 1989 (the MRA) and the Environmental Protection Act 1994 (the EP Act). [3] As well as the objections lodged by Mr Dunn, other objections to the grant of both mining leases were also lodged, however all other objections were withdrawn prior to this matter being heard. -- 2 of 19 -- 3 The Hearing [4] The applicants were represented throughout the hearing by Mr Palmer, a solicitor with the firm Rees R & Sydney Jones. The applicants relied on their application material, material supplied to the Court by the mining registrar, Mareeba, affidavit evidence and oral evidence. I will refer specifically to aspects of this evidence throughout these reasons. [5] Mr Dunn self-represented throughout the proceedings, with the assistance of his partner, Ms Frances Ford. The objector relied on each of the objections and documents in support lodged with his objections, affidavit evidence and oral evidence. [6] Mr A Kwan, legal officer, Department of Environment and Resource Management, appeared for the Chief Executive, Department of Environment and Resource Management, the statutory party to these proceedings (“statutory party”). [7] In considering these matters, I have relied upon all the evidence before me, including all exhibits tendered. I have also relied on the material provided to the Court by the mining registrar, including the mining registrar’s reports, in relation to each mining lease application. These reasons refer to the salient points, but not all the evidence, that I have taken into account. [8] In considering this matter, I have also applied, where relevant, Sinclair v Mining Warden at Maryborough & Anor1 and Beattie v McGrady.2 I have also considered all relevant provisions of the MRA and the EP Act. Legislative procedures for hearing and determining objections under the MRA and the EP Act [9] The processes for making an objection to the grant of a mining lease under the MRA are straight forward. Pursuant to s. 260 of the MRA, objections are to be in writing, lodged with the mining registrar in the approved form, and shall state the grounds of objection and facts and circumstances relied on by the objector in support of those grounds. A date is subsequently fixed by the mining registrar for the hearing of the objection by the Court (s. 265) and the hearing proceeds pursuant to s.268 of the MRA. The requirements for the Court’s recommendation to the Honourable Minister are set out in s. 269. Relevantly, s. 269(3) provides that “a recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Court considers appropriate, including a condition that mining not be carried on above a specified depth below specified surface area of the land”. [10] The MRA then sets out, by s. 269(4), certain criteria that the Court shall take into account and consider when making a recommendation. It is this Court’s usual practice when making a recommendation to the Honourable the Minister to include in the recommendation a detailed 1 [1975] 132 CLR 473. 2 Unreported, Supreme Court of Queensland, Cullinane J., 20 July 1993. -- 3 of 19 -- 4 breakdown of each criterion under s.269(4), taking account of any objection under each relevant criteria. For the purposes of this matter, I have departed to some degree from the usual course. Major issues of credit arise in these matters. Accordingly, I have set out an analysis, principally from a credit perspective, of the evidence of each witness. I then give a detailed analysis of various issues that arise out of the objection process which are common to all or a number of the MLAs, followed by a truncated assessment of s. 269(4) of the MRA for each application, not repeating issues already dealt with. However, matters unique to each MLA are dealt with in the s.269(4) analysis of each MLA. [11] For the purposes of s.269(4) of the MRA, I confirm that I have taken into account and considered in detail each of the s.269(4) criterion for the purposes of making my recommendation. It must also be noted that the Environmental Protection Agency is not a party with respect to the hearing of MRA objections. [12] As regards the objections under the EP Act, each objections decision hearing has been conducted in the Court pursuant to s.220 of the EP Act. Detailed evidence has been heard on the part of the applicants, the objector and the agency as a statutory party. The Court’s obligation is now to make objections decisions pursuant to s. 222 of the EP Act, which must in each case be a recommendation to the Minister responsible for the MRA that the application be granted on the basis of the draft Environmental Authority; or that it be granted on changed conditions; or that the application be refused. Matters to be considered for the objections decision include the matters in s.223. [13] It is appropriate to provide an overview of some relevant provisions of the EP Act. Section 3 states that the object of the Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development). [14] Section 4 provides for an integrated management program, which involves implementing environmental strategies and integrating them into efficient resource management. Accountability is an important element. [15] Section 8 defines “environment”. Section 9 defines “environmental value”. Section 14 defines “environmental harm” and how it may be caused by an activity. Section 15 defines “environmental nuisance” as unreasonable interference or likely interference with an environmental value caused by: (a) noise, dust, odour, light; or (b) an unhealthy, offensive or unsightly condition because of contamination; or (c) another way prescribed by regulation. -- 4 of 19 -- 5 The Objectors’ objections [16] The content of the objectors’ objections have been the subject of some dispute before the Court. In particular, the applicants filed an application to have the objections struck out. Whilst that application was not successful at first instance, that application had been left open pending the hearing of the substantive evidence in this matter. Given the nature of the objections and the facts and circumstances relied on in support of the objections, it is appropriate that I set out the objections in full. It should be noted that the objections are expressed in the same way for both mining lease applications. The objections are as follows: “1. Burtenshaws have shown that they do not consider the boundaries of any lease or EA to be binding. (1,2) 2. They claim dust control in theory but in fact it receives small consideration. (1,2) 3. They misrepresent Workplace health and safety rules namely ‘erect(ing) fences and gates to prevent unauthorized access’ but do not necessarily apply these within the confines of the lease. They impose the rules but within their own context wherever they wish to prevent access to all but their own. (1,2) 4. They have presumed ownership of the area when filing their application, including all the area surrounding the access. Thus they have ignored the need to ‘identify ..any other stakeholders and/or interested/affected others.’ (1,2) 5. The Traditional Owners already have other plans for this area in the near future under their Indigenous Work Plan. (1,2)” [17] The facts and circumstances relied upon by the objector in support of the grounds for his objections are expressed in the following way as part of the duly lodged objection: “Burtenshaws took over a small quarry contained within one of the mining leases for which they are now applying but, due to the opportunity to sell fill to Kagarra Zinc, they decided to expand well beyond its boundaries. That was before Roadtech wanted even greater quantities to reconstruct Wyndham Mere. The area of quarry approved then meant noting with money to be made…. and the section of public road they used lay thick with dust choking fellow users and the vegetation surrounding it. (The green buffer zone they propose can only buffer so much.) We know from years of experience that Burtenshaws build gates across public roads as they did on the Irvinebank road well outside their lease. (so does the man with the 14 stitches in his leg and a new touring bike beyond repair.) They have locked the gate to the locals at Innot Hot Springs denying access to their traditional swimming holes. They have taken down the public fossicking signs and burnt them. They have erected Private Property signs near public gazetted roads then harassed the road users for being on private property sending them to other places miles out of their way, with no through roads. If granted the right to put up such signs under the guise of Workplace Safety, where would it end? When asked to identify other stakeholders or interested/affected others in their application, they answered that it was ‘not applicable’ even though their Parcel Prospecting Permit no 21072 states clearly that the grant may be cancelled following the recent Native Title determination in favour of the Bar-barrum people…that nil security was held. Then when they were asked in relation to this present application who owned the land on which the proposed mining lease was situated, they said they did and they do not. This shows a complete disregard for Court rulings. Thomas Congoo who has been recognized as the traditional owner of the land herein applied for, intends to create an eco-tourist venture in this area as part of his Indigenous Work Plan. This project should commence in the near future. The Burtenshaws have shown a complete disregard for the Bar-barrum people in this matter. They have tried to obtain these leases by stealth. This is evidenced by the absence of any consultation with Thomas Congoo thus there can be no agreements or cooperation. The Bar-barrum people and the Burtenshaws are going in two different directions. The Burtenshaws’ actions have already shown the environmental degradation and pollution of the dams and waterways that come just from their -- 5 of 19 -- 6 overstocking let alone their extractive mining processes. For the Bar-barrum people, it is time to stop all this destruction and to rebuild their heritage so that the people and the land will have a future. These two ways are, by their very nature, mutually exclusive. ….and as our list of questions grows…questions for which we need answers from the Dept of Mines and Energy in order to complete this most important form, we realize that we can’t even begin to ask them until after the Christmas-New year break.. just too late to safely mail it for your receipt by closing date. How very clever and in character but ‘clever’ doesn’t mean ‘right’.” Credit of witnesses [18] Evidence at the hearing was provided by 3 persons – the objector; Ms Ford in support of the objector, and Mrs Burtenshaw for the applicants. Each was subject to cross-examination. [19] Affidavit evidence was also supplied by Ms Catherine Birt on behalf of the Statutory Party. Neither the objector nor the applicants required Ms Birt for cross-examination, resulting in her evidence being accepted unchallenged. The Objector, Mr Dunn [20] Without doubt, the objector is passionate about his objections. However, his passion frequently spills over to verbal abuse and attacks on other parties. More often than not, he does not support such attacks by sound, verifiable proof. The objector is very quick to judge others, but rather less willing to have his own conduct brought into question. [21] Almost by chance, some evidence came before the Court indicating that the objector has some years ago suffered a very major accident which caused him severe injury to which he is still recovering. The injuries included brain injuries. Perhaps the objectors evidence needs to be considered a little less harshly given these circumstances [22] The objector’s evidence can perhaps be summed up this way; he hears about something; becomes aware of community rumours; and then accepts those rumours as facts. I have little doubt that the objector firmly believes everything that he said in his evidence and during his handling of his case. On almost countless occasions, the objector referred to having a great deal of community support for his objections. However, despite the Court giving him more than ample enough time to produce those witnesses to Court, he failed (for various reasons) to ever do so. [23] Although in the main I do not find the objector’s evidence overly reliable, after hearing all of the evidence I was left with the distinct impression that a few of his complaints against the applicants are based, at least in part, on a grain of truth. My difficulty is that the objector presented his evidence in such a way as to make ascertaining where the applicants may be less than forthright with their application difficult, if not impossible, to ascertain. In this regard, it is important to bear in mind the role and responsibility of the Court. The Court cannot go out on a frolic of its own in search of evidence. The Court is not an investigatory body. The Court hears evidence placed before it and makes its decisions and -- 6 of 19 -- 7 recommendations based on that evidence. The responsibility lies with the objector to present coherent evidence to support each and every one of his objections. Ms Ford [24] Ms Ford presented rather disjointed evidence in support of the objector’s evidence. She presented herself in a much more reasoned, believable fashion than the objector. Her evidence though was tainted by frequent interruptions by way of ‘assistance’ from the objector. An example of this is to be found at pages 2-38 to 2-39 of the transcript, which followed many warnings already given to the objector regarding his behaviour: “Okay. Is that the parcel of land on which you and Mr Dunn currently squat? MR DUNN: I object to that term. We are there. We have proof----- HIS HONOUR: So, wait on, you're----- MR DUNN: I object to - I'd object to him----- WITNESS: No, [indistinct], stop. HIS HONOUR: Mr Dunn----- MR DUNN: I find that very offensive. HIS HONOUR: The reference to the term "squat" is what's challenged by Mr Dunn, Mr Palmer. MR PALMER: Well, your Honour, it's evident from the document, in fact, that the land is owned by Mrs - by Roslyn Leslie Hayden. That is clear?-- Well, that----- It has been one of the questions that have been----- MR DUNN: I - I also object to that. WITNESS: Shut up, shut up. MR DUNN: No, I also object to that, because that is not the case. It is a legal matter. MR PALMER: Your Honour, I'd ask that Mr Dunn be asked to leave the room. I find this intolerable. HIS HONOUR: Mr Dunn, there is a process we go through. You were given a very, very fair go in putting in all your evidence forward. You are not listening when you - when I tell you only speak at times when it is appropriate for you to speak. You interrupted then while Mr Palmer was speaking and addressing me. You are not showing proper courtesy or respect for the Court. This is your final----- MR DUNN: I was----- HIS HONOUR: This is your final warning in that regard, Mr Dunn. MR DUNN: Yes. HIS HONOUR: I would ask that - I understand that the room that you are in is a little larger than just the desk side by side. I'd ask Ms Ford that Mr Dunn remove himself from sitting close to you to sitting further away while you continue your cross-examination. MR DUNN: I was addressing you for that, and I was objecting to what he was saying. HIS HONOUR: Yes. But, Mr Dunn, you must not speak over Mr Palmer, and you must never speak over myself, and I was hearing from Mr Palmer in his response to your objection, and I had not yet -- 7 of 19 -- 8 made a ruling on that objection. I was going through exactly the same process that I always go through. MR DUNN: That’s fine. I'm not familiar with any of this. That’s all.” [25] Despite the difficulties which flowed from the objector’s behaviour, Ms Ford was successful in having a number of documents tendered as evidence. Moreover, Ms Ford was able to explain, in most instances, both the source and relevance of the evidence. One document which she tendered was exhibit 14. It is a State Land Field Standard Inspection report relating to two Occupation Licences held by G.E. and R.E. Burtenshaw. Despite the inconsistencies in the initials of the Burtenshaws as set out on the Report, it would seem that the two Occupation Licences were held by the applicants Gary Frederick Burtenshaw and Rosemary Anne Burtenshaw.3 [26] The report is old, referring to an inspection carried out on 16 November 1999. Despite its age, the report does indicate some activity by two of the applicants which lends some support to the objections raised by the objector. Specifically, Exhibit 14 refers4 to careless clearing without checking boundaries which resulted in significant clearing on a neighbours property. Further, the report on the same page notes that no record can be found of the holders having a current Tree Clearing Permit, and recommends that a watch be placed on the property for signs of illegal tree clearing. [27] On the following page of Exhibit 145, reference is made to allegations of public roads being fenced off. The issue was of sufficient concern to the local authority as to cause it to seek a condition in the tenure upgrade application, noted on the same page, that "dedicated roads such as the Coolgarra to Irvinebank and Coolgarra to Innot Hot Springs roads to remain open to the public". Mrs Burtenshaw [28] Mrs Burtenshaw gave lengthy affidavit evidence to the Court. Somewhat surprisingly, she did not spend a great amount of time in cross-examination. Mrs Burtenshaw answered most questions in a clear, confident, believable manner. I note that Mrs Burtenshaw has a significant record of community work6. I am satisfied that Mrs Burtenshaw is a truthful witness. However, that does not mean that she will not attempt to answer questions in a manner which at times was vague; even deceptive. One example related to the ownership of a separate company7: 3 See transcript page 2-52. 4 On the page marked 243. 5 Page marked 242. 6 Transcript page 2-105. 7 Transcript, 2-114 to 2-115. -- 8 of 19 -- 9 “Righto. So, all this pushing around, all this recent work, all this, these machines over here on page 2 at the top, and all the machines hide in there so when the EPA go in there, they won't find that you’ve already been interfering with anything will they?-- No, they won't, because----- Oh, okay?-- -----if you have a look at that, you will see that that is contained by a quarry lease which is held by C K Quarries, which is----- And who does C stand for?-- C K Quarries is a registered name, business name. Yes, and who does the C stand for?-- C K Quarries is a registered business name. It's K for what Kevin, is it or-----?-- Does it matter? HIS HONOUR: Well, there's a question as to what the----- MR DUNN: Yes, it does matter?-- C is Cameron, K is Ken. C K are the two names----- Yeah, Cameron Burtenshaw. You told the Court earlier on that the C K Enterprises had nothing what to do with you people and yet the C stands for Cameron Burtenshaw.” [29] The passages above from the transcript are examples of Mrs Burtenshaw attempting to give misleading evidence. Quite clearly, Mrs Burtenshaw wanted to leave the impression that there was no link between the applicants and CK Quarries. Without doubt, CK Quarries Pty Ltd is a different legal entity, but that is quite a different thing to revealing the relationship between the persons responsible for CK Quarries and the applicants. In this instance, the evasive evidence was unnecessary; the questions could have been directly answered without harm being done to the applicants’ case. Her willingness to be evasive does leave a question mark over what would otherwise have been quite impressive evidence. [30] My concerns about Mrs Burtenshaw giving misleading evidence flows over into her affidavit evidence. In her affidavit, Exhibit 6, Mrs Burtenshaw had this to say at paragraphs 21, 22 and 24: “21. I have not constructed, or caused to be constructed, any gates across public roads within the MLA Areas. 22. I have not installed, or caused to be installed, any “private property” or “no entry” signs within the MLA Area, or any other signs prohibiting entry within the MLA Area. I have not harassed, interfered with or otherwise impacted upon any road users within the MLA Area in any way at all. … 24. I have not locked the gate to the locals on Gibson Gully Road at Innot Hot Springs, nor have I denied them access to their traditional swimming holes. …” Mrs Burtenshaw goes on in Exhibit 6 to refer to placing "no entry" signs on a private road for public safety purposes. [31] At first glance, it would appear that Mrs Burtenshaw has given complete, direct evidence that she has not been responsible for any attempt to preclude the public from accessing public roads on her property. However, it must be borne in mind that her affidavit was responsive to material received from the objector alleging that the applicants improperly seek to stop -- 9 of 19 -- 10 members of the public from using public roads on the property8. When Mrs Burtenshaw‘s affidavit evidence is read closely, it becomes apparent that she is not denying that she has attempted to restrict public access to public roads on her property – just that she has not made any such attempts on the MLA application areas, or on Gibson Gully Road at Innot Hot Springs. It would have been very simple indeed for her to have stated, categorically, that all public roads on her property are at all times kept open to the public. That she has not done so, combined with her misleading evidence regrading CK Quarries, gives cause for concern. Some general observations on the MRA and the EP Act [32] In the case of DeLacey & Anor v Kagara Pty Ltd,9 which also related to objections to the grants of a number of mining leases on both mining and environmental grounds, I referred to some useful observations made by Counsel for one of the parties as to the operations of the MRA and the EP Act and statutory interpretation. I consider it useful to repeat those observations here: “Before embarking on a detailed analysis of various aspects of these matters, it is appropriate to make some general observations regarding the MRA and the EP Act and statutory interpretation. In this regard, Counsel for the applicants provided the following in their submissions.10 "4. Before dealing with individual grounds of objection, it is pertinent to note the following: (a) an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid. Whether it is depends on whether it was a purpose of the legislation to invalidate an act done in breach of the condition: Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355; Murgha v State of Queensland [2008] FCA 33; Cape Alumina Pty Ltd v Silverback Properties Pty Ltd [2008] QLC 183; (b) the procedures for mining leases applications are intended to "encourage" (FN: The objectives in s.2 of the MRA rely heavily on the concept of "encourage" and the administrative framework there referred to is not only to "regulate" but to "expedite" inter alia mining.) miners with little or no legal training or formal education. The statutory provisions imposing such procedures ought to be interpreted accordingly, and not in a way to make it virtually impossible to "facilitate" (FN: See again the objectives in s.2 of the MRA) mining; (c) it is not of paramount importance to have regard to the objects of legislation. (FN: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.) "The modern approach to statutory interpretation … as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388 [is that] if the apparently plain words of a provision are read in the light of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the Court in preferring to the literal meaning an alternative construction which … is reasonably open and more closely conforms to the legislative intent."; (d) the procedures encompass a wide range of mining activities, from very large mining projects to small-scale mining activities. The statutory provisions imposing the procedures ought not to be interpreted with a one-size-fits-all mentality; 8 See, for instance, email from Mr Dunn to the Court of 1 November 2009, which was provided to the applicants 9 [2009] QLC 0077. 10 Applicants' submissions para 4. -- 10 of 19 -- 11 (e) s.392 of the Mineral Resources Act 1989 (MRA) gives the Court (and others) power to deem an act taken in substantial compliance with prescribed requirements as having been taken in the prescribed way. (f) s.393 of the MRA gives the Minister similar power where an applicant is prevented, by circumstances beyond its control (including the default of the Mining Registrar), from complying with a provision, but has done all that it could do to comply; (g) the procedures for the grant of the eight mining lease are not complete. Other matters (such as agreeing compensation with the landowner) are yet to be carried out; and (h) s.269(3) of the MRA expressly contemplates that a recommendation by the Court in favour of a grant may be the subject of conditions. The imposition of conditions, rather than a recommendation of a rejection, is the appropriate avenue to deal with matters of concern to the Court. (FN: See the objects of the MRA referred to footnote 1 above.)" I concur with the principles as set out in the proceeding paragraph.” Precautionary principal [33] An often overlooked aspect of objections hearings before the Land Court relate to whether or not the Precautionary Principle is relevant. Of course, the Court is required to consider all relevant legislative provisions when considering an application for a mining lease and objections. The environmental objections are before the Court for an objections decision. The relevant provisions are to be found in division 7, subdivision 1 of the EP Act. Section 223 of the EP Act provides as follows: “223 Matters to be considered for objections decision In making the objections decision for the application, the tribunal must consider the following– (a) the application documents for the application; (b) any relevant EPP requirement; (c) the standard criteria; (d) each current objection; (e) for a standard application–any relevant standard environmental conditions; (f) any suitability report obtained for the application; (g) the status of any application under the Mineral Resources Act for each relevant mining tenement.” [34] “Standard criteria” (see s. 223(c) above) is defined in Schedule 3 of the EP Act in part as follows: “ “standard criteria” means– the principles of ecologically sustainable development as set out in the ‘National Strategy for Ecologically Sustainable Development’; and . .. . .” [35] Further in Schedule 3 of the EP Act, “National Strategy for Ecologically Sustainable Development” is defined as follows: "“National Strategy for Ecologically Sustainable Development” means the ‘National Strategy for Ecologically Sustainable Development’ endorsed by the Council of Australian Governments on 7 December 1992.”" -- 11 of 19 -- 12 [36] The National Strategy for Ecologically Sustainable Development of December 1992 contains the following statement of Australia’s goal, core objectives and guiding principles for the Strategy:11 “The Goal is: Development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends. The Core Objectives are: • to enhance individual and community well-being and welfare by following a path of economic development that safeguards the welfare of future generations • to provide for equity within and between generations • to protect biological diversity and maintain essential ecological processes and life- support systems The Guiding Principles are: • decision making processes should effectively integrate both long and short-term economic, environmental, social and equity considerations • where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation • the global dimension of environmental impacts of actions and policies should be recognised and considered • the need to develop a strong, growing and diversified economy which can enhance the capacity for environmental protection should be recognised • the need to maintain and enhance international competitiveness in an environmentally sound manner should be recognised • cost effective and flexible policy instruments should be adopted, such as improved valuation, pricing and incentive mechanisms • decisions and actions should provide for broad community involvement on issues which affect them These guiding principles and core objectives need to be considered as a package. No objective or principle should predominate over the others. A balanced approach is required that takes into account all these objectives and principles to pursue the goal of ESD.” [37] From the precautionary principle perspective, the key is the second bullet point to the guiding principles in the paragraph above, which sets out in a lengthened form what is currently referred to as the precautionary principle – that is, “where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”12 Applying the precautionary principle [38] The objector is clearly concerned that community drinking water will be poisoned by contaminated water finding its way into the local water system. This however is not one of the objector's grounds of objection. That does not preclude the Court from fully considering environmental issues in making its recommendation. Mrs Burtenshaw has given evidence as to the form of her mining operations. If the applicants' conduct their operations in this way, no contamination is possible. This then is a classic example where the precautionary principle can be applied, particularly given the evidence of Mrs Burtenshaw that the mining 11 National Strategy for Ecologically Sustainable Development, December 1992, p. 2. 12 Definition, “precautionary principle”, Butterworths Environmental Management and Law Dictionary. -- 12 of 19 -- 13 operation will be a simple process of washing and separately drying the mined material, and that absolutely no chemicals at all will be used13. In these circumstances, it is a simple matter to ensure that there can be no possibility of water contamination by making the mining leases each subject to a special condition that no chemicals are to be used in the processing and separation of the mined material which is to be processed by washing and separating drying. I recommend to the Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade accordingly. Section 269(4) MRA Criteria for MLA 20541 [39] Taking into account all of the evidence and findings set out above, I now turn to a specific consideration of MLA 20541. Section 269(4)(a) – Have the provisions of the Act been complied with? [40] On 5 December 2008, the Mining Registrar Mareeba issued a Certificate of Application. The Mining Registrar can only issue the Certificate if satisfied that the applicants are eligible to apply for the mining lease and have complied with the requirements of the Act with respect to the Application.14 I note that the Application is over a non-exclusive tenure15. [41] In my view the provisions of the MRA have been complied with by the applicants. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [42] I am satisfied that the land applied for is mineralised. The application is in a known, historic, mineral producing 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? [43] The material before me reveals the applicants’ proposed mining operations and program, and shows the potential for appropriate development and utilisation of the mineral resources within 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? [44] The material before me appears to indicate an MLA of an appropriate size and shape in light of the proposed mining operations. 13 See transcript, page 2-80, lines 33-52. Note specific reference to no use of cyanide or arsenic 14 See s. 252 of the Act. 15 I also note the applicants are to ‘deed in’ for the Bar Barrum people ILUA. -- 13 of 19 -- 14 Section 269(4)(e) – Is the term sought appropriate? [45] The term sought for this mining lease is 21 years, which I consider appropriate Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [46] The material indicates that the applicants have the financial and technical capabilities to carry on the mining operations. I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [47] The applicants’ evidence is that no enforcement action has been taken against them. The Mining Registrar’s Report is consistent with what the applicants say. I note the previous actions of some of the applicants in clearing timber on a neighbour’s property, and also the likelihood that their tree clearing permit had expired. While it is acknowledged that this activity does not relate to a mining operation, the applicants should be careful to ensure that they steadfastly abide by all the requirements under the MRA and related legislation, and the Mining Registrar should undertake inspections from time to time to ensure that compliance occurs. 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? [48] The applicants held PP21072 and have conditionally surrendered ML20034. There is nothing to indicate any disadvantage to any other person. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [49] Apart from my environmental comments below, 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: [50] For the reasons already discussed, in my view the MLA should be subject to a special condition consistent with paragraph 38 of this recommendation. Section 269(4)(k) – Will the public right and interest be prejudiced? [51] Provided that a special condition consistent with paragraph 38 is made, and further provided that the applicants do not restrict access by the public to public roads contained within their -- 14 of 19 -- 15 property, in my view issues which may otherwise be of concern to the public right and interest will be adequately addressed. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [52] Any good reason which may lead to a recommendation that the MLA be refused is sufficiently addressed in my responses to the various criteria above. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [53] The materials show that the project is for the extraction of a potentially valuable resource. Provided that a special condition consistent with paragraph 38 is applied to this MLA, I am satisfied that the proposed mining operation is an appropriate land use. Recommendation – MLA 20541 [54] Provided that a special condition consistent with paragraph 38 is made, and subject to the fulfilment of any processes under the Native Title Act 1993 (Cwth), I recommend to The Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that ML 20541 be granted to the Applicants, for the purposes and term sought by the applicants. Section 269(4) MRA Criteria for MLA 20542 [55] I now turn to a specific consideration of MLA 20542. Section 269(4)(a) – Have the provisions of the Act been complied with? [56] On 5 December 2008, the Mining Registrar Mareeba issued a Certificate of Application. The Mining Registrar can only issue the Certificate if satisfied that the applicants are eligible to apply for the mining lease and have complied with the requirements of the Act with respect to the Application.16 I note that the Application is over a non-exclusive tenure17. [57] In my view the provisions of the MRA have been complied with by the applicants. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [58] I am satisfied that the land applied for is mineralised. The application is in a known, historic, mineral producing 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? 16 See s. 252 of the Act. 17 I also note the applicants are to ‘deed in’ for the Bar Barrum people ILUA. -- 15 of 19 -- 16 [59] The material before me reveals the applicants’ proposed mining operations and program, and shows the potential for appropriate development and utilisation of the mineral resources within 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? [60] The material before me appears to indicate an MLA of an appropriate size and shape in light of the proposed mining operations. Section 269(4)(e) – Is the term sought appropriate? [61] The term sought for this mining lease is 21 years, which I consider appropriate Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [62] The material indicates that the applicants have the financial and technical capabilities to carry on the mining operations. I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [63] The applicants’ evidence is that no enforcement action has been taken against them. The Mining Registrar’s Report is consistent with what the applicants say. I note the previous actions of some of the applicants in clearing timber on a neighbour’s property, and also the likelihood that their tree clearing permit had expired. While it is acknowledged that this activity does not relate to a mining operation, the applicants should be careful to ensure that they steadfastly abide by all the requirements under the MRA and related legislation, and the Mining Registrar should undertake inspections from time to time to ensure that compliance occurs. 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? [64] The applicants held PP21072 and have conditionally surrendered ML20034. There is nothing to indicate any disadvantage to any other person. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [65] Apart from my environmental comments below, there is no evidence before me to suggest that the proposed operations do not conform with sound land use management. -- 16 of 19 -- 17 Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [66] For the reasons already discussed, in my view the MLA should be subject to a special condition consistent with paragraph 38 of this recommendation. Section 269(4)(k) – Will the public right and interest be prejudiced? [67] Provided that a special condition consistent with paragraph 38 is made, and further provided that the applicants do not restrict access by the public to public roads contained within their property, in my view issues which may otherwise be of concern to the public right and interest will be adequately addressed. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [68] Any good reason which may lead to a recommendation that the MLA be refused is sufficiently addressed in my responses to the various criteria above. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [69] The materials show that the project is for the extraction of a potentially valuable resource. Provided that a special condition consistent with paragraph 38 is applied to this MLA, I am satisfied that the proposed mining operation is an appropriate land use. Recommendation – MLA 20542 [70] Provided that a special condition consistent with paragraph 38 is made, and subject to the fulfilment of any processes under the Native Title Act 1993 (Cwth), I recommend to The Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that ML 20542 be granted to the Applicants, for the purposes and term sought by the applicants. Strike Out application [71] I rely in full of my comments made during the strike out application on 23 December 2009. Having now had the opportunity to consider all of the evidence in this matter, I am of the view that part of the applicants’ application could be successful in striking out grounds of objection 4 and 5. However, I am not satisfied that the other grounds of objection should be struck out. Indeed, the objector has been partially successful with respect to some aspects of those objections. As the applicant has not been wholly successful in having the objections struck out, and the objector has been partially successful in the hearing of his objections, it is appropriate that the applicants strike-out application be dismissed, and that the applicants pay the objectors costs of the strike-out application to be agreed between the parties or assessed. -- 17 of 19 -- 18 Costs of the substantive hearing [72] The applicant seeks orders that the applicants costs of the hearing be paid by the objector on an indemnity basis. [73] I have no doubt that in some mining lease application cases, it is appropriate for the Court to make awards of costs. I am also of the view, that despite the partial success of the objector regarding maintaining public access to public roads and monitoring to ensure that the applicants comply with all MRA and EP Act requirements, this is one of those cases where it is appropriate that the objector pay some of the costs of the applicants of the hearing. I consider it appropriate that the objector pay 50% of the applicants' costs of the hearing, including reserved costs but excluding any costs relating to the strike-out application, to be agreed between the parties or assessed. [74] My reasons for ordering the payment of costs by the objector relate specifically to the manner in which the objector conducted himself during the hearing. I have no doubt that the overall time taken for the hearing was at least doubled by the improper manner in which the objector conducted himself. It is appropriate that the objector should bear the costs of that additional time. Furthermore, such additional time permeates not only the hearing itself, but also all preparations (apart from the strike-out application) in getting this matter ready for hearing from the time when the objector first lodged his objections. Orders Recommendation – MLA 20541 Provided that a special condition consistent with paragraph 38 is made, and subject to the fulfilment of any processes under the Native Title Act 1993 (Cwth), I recommend to The Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that ML 20541 be granted to the Applicants, for the purposes and term sought by the applicants. Recommendation – MLA 20542 Provided that a special condition consistent with paragraph 38 is made, and subject to the fulfilment of any processes under the Native Title Act 1993 (Cwth), I recommend to The Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that ML 20542 be granted to the Applicants, for the purposes and term sought by the applicants. The applicants strike-out application is dismissed -- 18 of 19 -- 19 The applicants pay the objectors costs of the strike-out application to be agreed between the parties or assessed. The objector pay 50% of the applicants costs of the hearing, including reserved costs but excluding any costs relating to the strike-out application, to be agreed between the parties or assessed. I direct the Registrar of the Court to forthwith provide a copy of this decision to the Mining Registrar, Mareeba, drawing the Mining Registrar's particular attention to paragraphs 47, 51, 63 and 67 hereof. P A SMITH MEMBER OF THE LAND COURT -- 19 of 19 --