De Lacey & Anor v Kagara Pty Ltd [2009] QLC 77 (2009) 30 QLCR 57

LAND COURT OF QUEENSLAND CITATION: De Lacey & Anor v Kagara Pty Ltd [2009] QLC 77 PARTIES: Ralph De Lacey and Stuart V Foster (Applicants) - and - Kagara Pty Ltd (respondent) - and - Environmental Protection Agency (statutory party) FILE NOS: AML00195/2007 ENO00229/2007 AML00196/2007 ENO00230/2007 AML00197/2007 ENO00231/2007 AML00199/2007 ENO00233/2007 PARTIES: Ralph De Lacey (applicant) - and - Kagara Pty Ltd (respondent) - and - Environmental Protection Agency (statutory party) FILE NOS: AML00198/2007 ENO00232/2007 AML00200/2007 ENO00234/2007 AML00201/2007 ENO00235/2007 AML00202/2007 ENO00236/2007 DIVISION: Land Court of Queensland – general division -- 1 of 127 -- 2 PROCEEDING: Applications for mining leases and objections thereto DELIVERED ON: 2 June 2009 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER: Mr PA Smith ORDERS: WITH RESPECT TO EACH MLA 1 I allow the Applicant until 4pm 19 June 2009 to file and serve draft special conditions to the Draft Environmental Authority consistent with paragraphs 178 and 179 hereof. 2 Apart from MLA 20488, I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, their suggested special conditions); and 3 Apart from MLA 20488, I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 4 Apart from MLA 20488, should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. RECOMMENDATION – MLA 20488 5 Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to Right to Negotiate 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 20488 be granted to the Applicants, for the purposes and term sought by the Applicants. RECOMMENDATION – MLA 20496 6 Provided that special conditions consistent with paragraphs 178 and 179 are made, together with special conditions that the Applicants do not prohibit the movement of stock through Lot 45 CP 851407 Reserve (R14) , and subject to Right to Negotiate 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 20496 be granted to the Applicants, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, -- 2 of 127 -- 3 workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicants ORDERS – MLA 20496 7 I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; 8 I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and 9 I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 10 Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. ORDERS – MLA 20497 11 I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; 12 I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and 13 I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 14 Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. RECOMMENDATION – MLA 20500 15 Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to the Applicant obtaining -- 3 of 127 -- 4 the consent of the Department of Transport prior to the matter being considered by the Governor in Council and the Governor in Council exercising the discretion pursuant to s 238(1)(a) of the MRA or alternatively, if the Applicant is unable to obtain the consent of the Department of Transport, then I recommend that, prior to the MLA proceeding to grant, that the Applicant be required to lodge a variation of access not involving a railway crossing, and subject to Right to Negotiate 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 MLA 20500 be granted to the Applicant, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicant ORDERS – MLA 20502 16 I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; 17 I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and 18 I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 19 Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. RECOMMENDATION – MLA 20503 20 Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to Right to Negotiate 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 20503 be granted to the Applicant, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment -- 4 of 127 -- 5 plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicant RECOMMENDATION – MLA 20504 21 Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to Right to Negotiate 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 20504 be granted to the Applicant, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicant ORDERS – MLA 20510 22 I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; 23 I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and 24 Allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 25 Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. CATCHWORDS: Mining – mining lease - objections Mineral Resources Act 1989 Environmental Protection Act 1994 Applications for mining leases – objections - Mineral Resources Act (1989) (QLD) ss. 238(1)(a), 260, 265, 268 Whether grounds in objection process are properly particularised - ss. 269, 269 (3), 269 (4) Criterion for Land Court’s recommendation - ss. 6, 6A, 241, 245, 252 Compliance requirements - ss. 18, 32, 35 Whether -- 5 of 127 -- 6 proper notice of entry was given and whether penalty applies – s.31 Whether notification requirement was complied with – s.135 Moratorium period – s.391A Proximity to environmentally sensitive areas – Environmental Protection Act (1994) ss. 164, 220, 222, 223, 3, 4, 6, 8, 9, 14, 15 – Objections under the Act, matters to be considered - 37, 151, 238, 292, 154, 167 – threatened species – level 2 code compliance – s559, 560 suitability report – misleading conduct – s223, sched 3 The Precautionary Principle - Native Title Act 1993 (Cwth) negotiation processes Sinclair v Mining Warden at Maryborough and Anor (1975) 132 CLR 473 - Beattie v McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993 - Jones v Dunkell & Anor (1959) 101 CLR 298 - Armstrong & Anor v Brown and Anor [2004] QCA 80 - Gonzo Holdings No 50 Pty Ltd v McKie [1996] 2QdR 240 - ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2001] QCA 119 - ACI Operations Pty Ltd v Friends of Stradbroke Island Association Inc (2000) QLRT 7 - Kokstad Mining Pty Ltd v Lee (2006) 122 - Lee v Kokstad Mining Pty Ltd (2007) QCA 248 . APPEARANCES: Mr R Lilley SC and Mr P Franco, instructed by Preston Law, for the Applicants Mr P Ambrose SC and Mr M Brady, instructed by Blake Dawson solicitors, for the respondent Mr I Pepper, Legal Officer, for the Environmental Protection Agency Background [1] The Court has before it eight applications for mining leases, all located within the Chillago area of the Mareeba Mining District. The applications are either in the joint names of Ralph De Lacey and Stuart Foster or in the name of Ralph De Lacey only. Hereafter, I will use the generic term of "Applicants" to refer to the Applicants for each mining lease application (“MLA”). In addition to the Applicants, a third person, John Sainsbury, holds certain interests in at least 6 of the MLAs. Mr Sainsbury's interests were not disclosed during the application process. -- 6 of 127 -- 7 [2] Kagara Pty Ltd1 (the "Objector") lodged objections to each MLA. The objections are extensive, and are made under the Mineral Resources Act 1989, (the MRA) and the Environmental Protection Act 1994 (the "EP Act"). [3] By letter dated 11 February 2009 directed to the Mining Registrar, Mareeba, the Objector withdrew its objection with respect to the grant of MLA 20488. The Objector has not withdrawn its objections with respect to any of the other MLAs. [4] The evidence shows that the Objector is a landholder of land over which a number of the MLAs have been lodged. Additionally, the Objector is also a miner which operates mining operations of a relatively large scale. The Applicants are small scale miners who operate, at least in part, in the same geographical region as the Objector. [5] In my view, having considered all of the evidence, the objection process in a number of respects boils down to a commercial contest between the Applicants and the Objector. Should any of the MLAs not be granted to the Applicants, exploration rights to those areas will revert to the Objector which holds EMP 15458 over the relevant areas. The hearing [6] The Applicants were represented throughout the hearing by Mr R Lilley SC and Mr P Franco, instructed by Preston Law. The Applicants relied on their application material, material supplied to the Court by the Mining Registrar, Mareeba, affidavit evidence, expert evidence and oral evidence. I will refer specifically to aspects of this evidence throughout these reasons. [7] Mr P Ambrose SC and Mr M Brady, instructed by Blake Dawson solicitors, represented the Objector. The Objector relied on each of the objections and documents in support lodged with their objections, affidavit evidence, expert evidence and oral evidence. [8] Mr I Pepper, Legal Officer, appeared on behalf of the Statutory Party to the EP Act objections, the Environmental Protection Agency. [9] 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 1 I note that Kagarra has changed its name to Mungana Pty Ltd. -- 7 of 127 -- 8 Mining Registrar, including the Mining Registrar’s Report, in relation to each MLA. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account. [10] In considering this matter, I have also applied, where relevant, Sinclair v Mining Warden at Maryborough and Anor (1975) 132 CLR 473 and Beattie v McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993. 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 [11] 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 the 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”. [12] 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 breakdown of each criterion under s. 269(4), taking account of any objection under each relevant criteria. For the purposes of this matter, due to the hearing of 8 separate MLAs and the extensive number of objections, I have departed to some degree from the usual course. Major issues of credit of certain witnesses arise. 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 -- 8 of 127 -- 9 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. [13] For the purposes of s. 269(4) of the MR Act, 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. [14] 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 MRA Minister 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. [15] 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). [16] 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. [17] 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 proscribed by regulation. -- 9 of 127 -- 10 The Objectors' objections [18] Mr Hetherington on behalf of the Objector lodged formal objections, following the approved form, to each of the MLAs. The objections were all dated 10 October 2007 and were all received by the Mining Registrar on 11 October 2007. Although the objections cover all eight MLAs, the Objector grouped various MLAs together and made one set of objections for each grouped set of MLAs. Accordingly, the Objector lodged a common objection with respect to MLAs 20500, 20503, 20504 and 20510, all in the one objection. Likewise, one objection by the Objectors covers MLAs 20488 and 20496, and a third objection lodged by the Objector relates to MLAs 20497 and 20502. Each objection is both an MRA objection and an EP Act objection. [19] Following separate requests of the Objector made by the Applicants and the Statutory Party for further and better particulars, the Objectors on 11 April 2008 filed the Objectors' reply to the Applicant's request for further and better particulars, and on the same date also filed the Objectors' reply to the Statutory Party's request for further and better particulars. Further, on 2 September 2008, by letter from the solicitors for the Objector addressed to the solicitors for the Applicants and the Statutory Party, the Objectors provided further particulars of its objections. [20] Without doubt, one of the most fundamental documents for the Court to have regard to when hearing objections to the grant of a MLA is the actual objection itself. For ease of reference in this recommendation, what I have done is compiled each of the objections, both responses to requests for further particulars, together with the further particulars of 2 September 2008, into one document. In order to easily track the origins of the various components of the objections in the combined document which follows, I have used different type fonts to represent the different origins of the contents of the objections as follows: ‘Standard type’ represents the words taken from the original objections filed with the Mining Registrar on 11 October 2007. ‘Bold italics’ represents the Objector's reply to the applicant's request for further and better particulars filed 10 April 2008. -- 10 of 127 -- 11 ‘BOLD CAPITALS’ represents the Objector's reply to the statutory party's request for further and better particulars, and ‘CAPITAL BOLD ITALCS’ represents the Objector's further particularisation of 2 September 2008. OBJECTIONS MLA 20497 and MLA 20502 De Lacey (66.6666%) and Foster (33.3334%) MLA 20488 and MLA 20496 De Lacey (50%) and Foster (50%) MLA 20500, MLA 20503, MLA 20504 and MLA 20500 De Lacey “Objection in relation to the grant of the mining tenements identified above, including but not limited to the Applicant’s failure to comply, failure to fully comply or inability to comply with the following provisions of the Mineral Resources Act 1989 (MRA): Grounds for objection The applicant/s has failed to comply with various Sections and the requirements of the MRA, including, but not limited to Sections 6, 6A, 241, 245  No rights have ever been granted to the applicant in accordance with the MRA which would enable access to the area of the MLA to permit the applicant to prospect, explore or conduct any geological, metallurgical, environmental assessment or evaluation of the area of the MLA. -- 11 of 127 -- 12 The respondent states that the rights that are lacking are: (a) the rights already identified in the facts and circumstances states (sic) in the respondent’s objections; (b) the rights to access the area of the MLAs for the purpose of marking out boundaries, carrying out prospecting and exploration or to conduct any geological metallurgical and environmental assessment or evaluations; and (c) the rights to carry out prospecting and exploration or to conduct any geological, metallurgical and environmental assessment or evaluation over the area of the MLAs.  The MLA has not been marked out or applied for in accordance with the MRA. The respondent states that the respects in which the MLAs have not been applied for in accordance with the Mineral Resources Act 1989 (MRA) are those already identified in the facts and circumstances stated in the respondent’s objections. These include, by way of illustration, the Applicants’ failure to properly identify land over which a reserve exists and the divergence in descriptions of proposed mining activities between mining lease applications, environmental authority applications, the certificates of application and public notice and the public advertisements.  The area of the land is not mineralised and the purposes for which the MLA is being sought are inappropriate.  The land, surface area, size and shape of the MLA is inappropriate.  The term of the MLA sought is inappropriate.  The applicant does not have the financial and technical resources to carry on the proposed operations, especially in circumstances where sufficient information is available to determine the substantial capital needs. The respondent says as follows: (a) the word “sufficient” should instead read “insufficient”; (b) the information which is lacking is an outline of the mining program proposed and the Applicants’ method of operations, an indication of when operations are expected to start, and proposals for infrastructure requirements and additional activities to be carried on to work out the infrastructure requirements; -- 12 of 127 -- 13 THE APPLICANTS HAVE FAILED TO COMPLY WITH S.245 MRA IN THAT: (A) THEY FAILED TO SPECIFY THE NAME OF EACH APPLICANT FOR THE MINING LEASE AS JOHN SAINSBURY HAD A ONE THIRD INTEREST IN THE MINING LEASE APPLICATIONS BUT THIS WAS NOT STATED ON ANY OF THE APPLICATIONS BY THE APPLICANTS IN BREACH OF THE REQUIREMENTS OF S.245(B) MRA; (B) AS PART OF THEIR APPLICATIONS THEY FAILED TO MAKE A STATEMENT THAT: (I) OUTLINED THE MINING PROGRAM PROPOSED; (II) PROVIDED AN INDICATION WHEN OPERATIONS WERE EXPECTED TO START (III) SET OUT THE PROPOSALS FOR INFRASTRUCTURE REQUIREMENTS NECESSARY TO ENABLE THE MINING PROGRAM TO PROCEED, OR ADDITIONAL ACTIVITIES TO BE CARRIED ON TO WORK OUT THE INFRASTRUCTURE REQUIREMENTS; (IV) SPECIFIED THE ESTIMATED HUMAN, TECHNICAL AND FINANCIAL RESOURCES PROPOSED TO BE COMMITTED TO AUTHORISED ACTIVITIES FOR THE MINING LEASE DURING EACH YEAR OF THE LEASE, IF GRANTED, IN BREACH OF THE REQUIREMENTS OF S.245(O)(III) MRA; (C) AS PART OF THEIR APPLICATIONS THEY FAILED TO MAKE A STATEMENT THAT DETAILED THE APPLICANTS’ FINANCIAL AND TECHNICAL RESOURCES IN BREACH OF THE REQUIREMENTS OF S.245(O)(IV) MRA. THE APPLICANTS HAVE FAILED TO COMPLY WITH S.32(1) MRA IN THAT THEY FAILED TO GIVE THE OWNER OF THE LAND COVERED BY THE PARCEL PROSPECTING PERMITS HELD BY THEM NOTICE OF ENTRY BEFORE INITIAL ENTRY WAS MADE UNDER THE PERMITS AS: (A) ALTHOUGH A LETTER DATED 17 JANUARY 2006 WAS SENT BY MR DE LACEY TO THE RESPONDENT IN RESPECT OF PROSPECTING PERMIT NO. 21021, THE LETTER: (I) DID NOT GIVE NOTICE OF ENTRY, IN THAT IT DID NOT STATE WHE MR DE LACEY INTENDED TO ENTER UPON THE RESPONDENT’S LAND; -- 13 of 127 -- 14 (II) STATED THAT MR DE LACEY INTENDED TO PEG ONLY “A SMALL MINING LEASE” WHEREAS, IN FACT, MR DE LACEY PURPORTED TO PEG NO FEWER THAN 5 MINING LEASES IN RELIANCE ON PARCEL PROSPECTING PERMIT 21021 WITHOUT GIVING ANY NOTICE OF HIS INTENTION TO ENTER THE RESPONDENT’S LAND TO PEG THOSE MINING LEASES; (B) THE APPLICANTS GAVE NO NOTICE OF ANY NATURE TO THE RESPONDENT IN RESPECT OF ENTRY ONTO THE RESPONDENT’S LAND IN RESPECT OF PROSPECTING PERMIT NO 21023. FURTHER, IN RESPECT OF THE OBJECTION TO MLA 20496, THE APPLICANTS HAVE FAILED TO COMPLY WITH S.238(1) MRA IN THAT THEY FAILED TO: (A) OBTAIN THE WRITTEN CONSENT OF THE OWNER OF THE RESERVE OVER THE LAND, BEING THE MINISTER FOR NATURAL RESOURCES AND WATER, TO THE GRANTING OF THE LEASE; AND (B) LODGE THE WRITTEN CONSENT OF THE MINISTER WITH THE MINING REGISTRAR BEFORE THE LAST OBJECTION DAY ENDED. FURTHER, IN RESPECT OF THE OBJECTION TO MLA 20496, THE APPLICANTS HAVE FAILED TO COMPLY WITH S.252B MRA IN THAT THEY FAILED TO GIVE A COPY OF THE CERTIFICATE AND THE APPLICATION FOR THE MINING LEASE TO EACH OWNER OF THE RELEVANT LAND, IN THAT NO NOTICE WAS GIVEN TO THE MINISTER FOR NATURAL RESOURCES AND WATER, BEING AN OWNER OF THE RELEVANT LAND. Facts and circumstances relied on in support of the grounds The applicant/s for the MLA have never been granted any entitlement under the MRA to access, assess, prospect or explore the area of land subject to the MLA for the purposes of determining whether the land is mineralised and what mineral resources may exist in the MLA. Even if the land could be found to be mineralised, the Applicants have never been granted any entitlement under the MRA that could enable the applicant/s to conduct any investigations to determine the extent of mineralisation, or to determine an acceptable level of development and utilisation of the mineral resources which could exist in the MLA. Until the precise extent and metallurgy of any mineable resource which may exist within this area is determined with certainty, it is impossible -- 14 of 127 -- 15 to determine that the land and surface area of the MLA is an appropriate size and shape, the term sought is appropriate, the applicant has sufficient financial resources and technical capabilities to mine each MLA and whether there is any good reason to refuse the grant of the MLA. There is no evidence of the existence of minerals and/or resource definition as a consequence of exploration to support mine development. The grant of a MLA is for mine development, not for exploration purposes and until mineable resources are sufficiently defined in accordance with any industry standard, including Valmin or JORC guidelines, no MLA should be considered for grant. The MLA has not been marked out or applied for in accordance with the provisions of the MRA. Insufficient information provided in the MLA to demonstrate resource to be mined as a commercially viable mining operation for any of the minerals and proposed mining program is insufficient to determine the effect on the environment, or to show environmentally responsible mining. Information provided is inadequate and inconsistent with provisions of MRA. Insufficient or no evidence has been provided to company with Section 245 (1) sub sections I, L and O. Grounds for objection  The grant of the MLAs will disadvantage rights of the holder of EPM 15458 and any subsequent holder of any exploration or prospecting rights. The respondent states that the grant of the MLAs will disadvantage the rights of the holder of EPM 15458 and any subsequent holder of any prospecting or exploration right by preventing them from conducting exploration and obtaining mining tenements on the relevant land.  The grant of the MLAs is not sound land use management. The respondent states, in addition to the facts and circumstances stated in its objections, that the grant of the MLAs would not be sound land use management because they would be made in circumstances where the Applicants have failed to comply with the requirements of the MRA as stated in the respondent’s objections.  Without proper geological and environmental assessment, there is a real risk of adverse environmental impact. The respondent states that there has been no proper geological and environmental assessment made and that there is a real risk of -- 15 of 127 -- 16 adverse environmental impact if the MLAs are granted, for the reasons that have been provided in its objections.  The public right and interest will be prejudiced. The respondent states that the public right and interest will be prejudiced by the grant of the MLAs in circumstances where the Applicants have failed to comply with the requirements of the MRA as stated in the respondent’s objections.  Mining without proper resource definition is an inappropriate land use. Facts and circumstances relied on in support of the grounds The grant of the MLA over land where insufficient exploration and prospecting has been undertaken will sterilise land along strike from the mine development. To this end, the grant of the MLA will disadvantage the holder of EPM 15458. Kagara Pty Ltd, being the holder of EPM 15458, is currently conducting a major mine development within the bounds of EPM 15458 and the company’s operations here and elsewhere in the state are a major contributor to the benefit of the people of Queensland. No access to the land subject to the MLA has been granted to conduct activities authorised by the MRA and unless the precise extent and metallurgy of any mineable resource of mineralisation which may exist within this area is determined with certainty, any development for mining or infrastructure must have an adverse effect on the environment. Further it is impossible to determine the extent of the adverse effect on the environment. The grant of any MLA will prejudice the public right and interest insofar that it would be inconsistent with Government policy, the value of any production cannot be determined (including time value), there is no evidence of any contribution to employment, there is no evidence of resources to determine the direct and indirect return to the state (including royalty and rent), there is no evidence of the social impact (in relation to Native Title and otherwise) and there is no evidence of any overall economic benefit to the state or part of the state, in the short or long term. The land within EPM 15458 is considered prospective and the best use of this land (for other than grazing purposes) is to be subjected to a detailed comprehensive exploration program conducted by a party which has an in depth knowledge of the geology in the area. -- 16 of 127 -- 17 Objection in relation to the environmental authority application, including but not limited to the Applicants failure or inability to comply with the following provisions of the Environmental Protection Act 1994. Grounds for objection Sections 3, 5, 148, 150, 154, 155, 156, 161, 162, 179, 186 and 189  The application documentation is inadequate. The respondent states that the respects in which the application documentation is inadequate are as follows: (a) those already identified in the facts and circumstances stated in the respondent’s objections; (b) the subject applications were each expressed as an application for a code compliant authority when they should each have been expressed as an application for a non-code compliant authority; (c) in the alternative to (b), the subject applications were each expressed as an application for an environmental authority for a level 2 mining project when they should each have been expressed as an application for an environmental authority for a level 1 mining project; and (d) in the alternative to (b) and (c), the subject applications were each expressed as an application for a code compliant authority for a level 2 mining project when the Applicants should have made a single application for 1 non-code compliant authority for a level 1 mining project. THE RESPONDENT STATES THAT THE APPLICATION DOCUMENTATION IN RELATION TO EACH OF THE SUBJECT APPLICATIONS FOR ENVIRONMENTAL AUTHORITIES (MINING ACTIVITIES) IS INADEQUATE IN THE FOLLOWING RESPECTS: -- 17 of 127 -- 18 (A) THE MATTERS ALREADY IDENTIFIED IN THE FACTS AND CIRCUMSTANCES STATED IN THE RESPONDENT’S OBJECTIONS; (B) THE SUBJECT APPLICATIONS WERE EACH EXPRESSED AS AN APPLICATION FOR A CODE COMPLIANT AUTHORITY WHEN THEY SHOULD EACH HAVE BEEN EXPRESSED AS AN APPLICATION FOR A NON-CODE COMPLIANT AUTHORITY; (C) IN THE ALTERNATIVE TO (B), THE SUBJECT APPLICATIONS WERE EACH EXPRESSED AS AN APPLICATION FOR AN ENVIRONMENTAL AUTHORITY FOR A LEVEL 2 MINING PROJECT WHEN THEY SHOULD EACH HAVE BEEN EXPRESSED AS AN APPLICATION FOR AN ENVIRONMENTAL AUTHORITY FOR A LEVEL 1 MINING PROJECT; AND (D) IN THE ALTERNATIVE TO (B) AND (C), THE SUBJECT APPLICATIONS WERE EACH EXPRESSED AS AN APPLICATION FOR A CODE COMPLIANT AUTHORITY FOR A LEVEL 2 MINING PROJECT WHEN THE APPLICANTS SHOULD HAVE MADE A SINGLE APPLICATION FOR 1 NON-CODE COMPLIANT AUTHORITY FOR A LEVEL 1 MINING PROJECT.  The application and the proposed development fails to take account of relevant environmental protection policies. The respondent withdraws its objection to each of the subject applications in relation to the applications and proposed development failing to take account of relevant environmental protection policies. THE RESPONDENT WITHDRAWS ITS OBJECTION TO EACH OF THE SUBJECT APPLICATIONS IN RELATION TO THE APPLICATIONS AND PROPOSED DEVELOPMENT FAILING TO TAKE ACCOUNT OF RELEVANT ENVIRONMENTAL PROTECTION POLICIES.  The standard EA is inadequate for the proposed development on each MLA. The respondent states that the respects in which the standard EA is inadequate for the proposed development are: (a) those already identified in the facts and circumstances stated in the respondent’s objections; and -- 18 of 127 -- 19 (b) that the Applicants, in carrying out the mining activities, will not comply with the relevant standard environmental conditions for a code compliant authority.  Standard conditions are inadequate for the proposed development on each MLA and the applicant has not had any right of access to the area of the MLA to permit the applicant to prospect, explore or conduct any geological, metallurgical, environmental assessment or evaluation of the area of the MLA for the purpose of determining the significant impact of the proposed operations on the environment. The respondent states that: (a) the respects in which it is said that the standard conditions are inadequate are those already identified in the facts and circumstances stated in the respondent’s objections and, further, that the Applicants, in carrying out the mining activities, will not comply with the relevant standard environmental conditions for a code compliant authority; (b) the facts relied on to contend that the Applicants have not had any right of access to the area of the MLA are those set out at paragraphs 1 (a) and (b) above. THE RESPONDENT STATES THAT THE MATERIAL FACTS IT RELIES ON IN SUPPORT OF ITS GROUND OF OBJECTION IN EACH OF THE SUBJECT APPLICATIONS THAT THE STANDARD CONDITIONS ARE INADEQUATE FOR THE PROPOSED DEVELOPMENT ON EACH MLA, ARE AS FOLLOWS: (A) THOSE ALREADY IDENTIFIED IN THE RESPONDENT’S OBJECTIONS; AND (B) THAT THE APPLICANTS, IN CARRYING OUT THE MINING ACTIVITIES, WILL NOT COMPLY WITH THE RELEVANT STANDARD ENVIRONMENTAL CONDITIONS FOR A CODE COMPLIANT AUTHORITY.  The MLA does not provide for the assessment, development and utilisation of mineral resources to the maximum extent practicable consistent with sound economic and land use management. The respondent states that the grant of the MLAs in circumstances where the Applicants have failed to comply with the requirements of the MRA, as stated in the respondent’s objections, would not result in the best assessment, development and utilisation of mineral resources. -- 19 of 127 -- 20 Facts and circumstances relied on in support of the grounds Failure of the Applicant to adequately demonstrate that the proposed mining operations are ecologically sustainable developments. Incomplete, inaccurate, imprecise and insufficient information to determine extent or otherwise of environmental harm caused by mining activity. Unless the Application can determine with certainty the resources to be mined and proposed methods of mining (and effects of extraction) it is impossible to determine the effect of such activities on the environment. Applicant has failed to provide or take into account the effect of the activities in relation to introduction, locality, description of the activity, justification of the activity, evaluation of alternatives, planning context, licences and approvals required, zoning, stakeholder consultation, existing environment, landforms and geology, climate, environmental impacts and management, air, water, soils, noise and vibration, flora and fauna, chemical and hazardous substance management, contaminated land, waste minimisation and management, natural resource use, impact on the community, visual assessment, heritage, aboriginal heritage, other cultural heritage, land use, cumulative environmental impacts, summary of mitigation measures, rehabilitation works and summary of impacts and conclusions. Objection in relation to the draft environmental authority for the application, including but not limited to the Applicants failure or inability to comply with the following provisions of the Environmental Protection Act 1994: Grounds for objection Standard EA is inappropriate. THE RESPONDENT STATES THAT THE MATERIAL FACTS IT RELIES ON IN SUPPORT OF ITS GROUND OF OBJECTION IN EACH OF THE SUBJECT APPLICATIONS THAT A STANDARD EA IS INAPPROPRIATE, ARE AS FOLLOWS: -- 20 of 127 -- 21 (A) THOSE ALREADY IDENTIFIED IN THE RESPONDENT’S OBJECTIONS; AND (B) THAT THE APPLICANTS, IN CARRYING OUT THE MINING ACTIVITIES, WILL NOT COMPLY WITH THE RELEVANT STANDARD ENVIRONMENTAL CONDITIONS FOR A CODE COMPLIANT AUTHORITY. Facts and circumstances relied on in support of the grounds On the basis of the information provided in the Applications it is impossible to determine the most appropriate form of Environmental Authority and appropriate conditions. The applicant has applied for several MLAs and EA’s in close proximity. All of which include similar minerals and mining activities. As a rule, the EPA would require the holder to apply for a single EA covering several MLAs in this situation. It is possible that the impacts of the individual MLAs may be able to comply with the threshold triggers in the standard environmental code, however, the total disturbances of the combined MLAs will require a Level 1 EA. The applicant is circumventing the intention of the EPA in this case as Level 2 code compliant EA’s are not appropriate. The information provided in the EA application forms was insufficient for the EPA to issue standard EA’s for the MLAs. Objection in relation to conditions included in the draft environmental authority for the application, including but not limited to the Applicant’s failure or inability to comply with the following provisions of the Environmental Protection Act 1994: Grounds for objection Section 154 Facts and circumstances relied on in support of the grounds On the basis of the information provided in the Applications it is impossible to determine the most appropriate form of Environmental Authority and appropriate conditions. -- 21 of 127 -- 22 The applicant has applied for several MLAs and EA’s in close proximity. All of which include similar minerals and mining activities. As a rule, the EPA would require the holder to apply for a single EA covering several MLAs in this situation. It is possible that the impacts of the individual MLAs may be able to comply with the threshold triggers in the standard environmental code, however, the total disturbances of the combined MLAs will require a Level 1 EA. The applicant is circumventing the intention of the EPA in this case as Level 2 code compliant EA’s are not appropriate. The information provided in the EA application forms was insufficient for the EPA to issue standard EA’s for the MLAs.” Applicants Objections to Evidence [21] At the commencement of the hearing, Counsel for the Applicants submitted that the Objector should be precluded from leading evidence relating to issues which fall outside of that contained within a duly lodged objection. The Applicants’ complaint centres on the “further particulars” provided by the Objector to the Applicants by letter dated 2 September 2008. [22] My compilation of the objections set out above contain in full the particulars contained in the letter of 2 September 2008. For present purposes, it is not necessary to repeat them here. [23] The Applicants contend that the Objector cannot rely on most of the further particulars of 2 September, 2008, or call any evidence with respect to so much of those particulars which are not already detailed in the duly lodged objections. [24] The Applicants rely for their submissions on the provisions of s.268(3) of the MRA which provides as follows: "268 Hearing of application for grant of mining lease (3) The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application." [25] The Applicants say that the prohibition in s.268(3) of the MRA is absolute rather than discretionary. The Applicants then go on to refer to s.260 of the MRA which is the provision by which objections may be lodged. Subsection (1) provides that objections are to be lodged with the Mining Registrar, in writing, in the approved form, on or before the last objection day for the application. Subsection (3) provides -- 22 of 127 -- 23 that an objection "shall state the grounds of objection and the facts and circumstances relied on by the Objector in support of those grounds". [26] There is clear authority for the proposition that a duly lodged objection must be filed with the Mining Registrar on or before the last objection date. There is no scope for an extension of time for the objection period, or discretion to otherwise allow an objection lodged out of time.2 [27] The question then to be asked is, do the particulars as set out in the Objector's letter of 2 September 2008, to the extent to which the applicant's take issue with them amount to proper particularisation of objections duly lodged, or should they be properly construed as new grounds for objections which are made out of time, and therefore cannot be entertained by the Court. [28] In my experience as a Member of the Land Court, and previously as a Deputy President of the Land and Resources Tribunal, I have never before seen duly lodged objections which cover every possible aspect of the MLA and environmental authority application process. Clearly, in my view, the Objector has made it known to the Applicants from the outset that they object in every possible way to the applicant's MLAs. They have put the Applicants on notice, by duly lodged objections made within time, that it is their contention that the Applicants have failed to comply with the provisions of the MRA in making their MLAs. Further, the Objector has also clearly put the Applicants on notice by its objections that it is concerned regarding what it sees as a lack of environmental rigour relating to the Applicants' application process. [29] The Objector's further particularisation of provisions of the MRA which the Objector claims the Applicants have not complied with, together with details of threatened bat and plant species which may be impacted by the Applicants' MLAs are, in my view, sufficiently proximate to the objections originally lodged and subsequently particularised to warrant their inclusion as proper further particulars, and not their exclusion as new grounds of objection. 2 See, for example, ACI Operations Pty Ltd v Friends of Stradbroke Island Association Inc (2000) QLRT 7 and Kokstad Mining Pty Ltd v Lee (2006) 122, which was affirmed by the Court of Appeal in the decision of Lee v Kokstad Mining Pty Ltd (2007) QCA 248. -- 23 of 127 -- 24 [30] It follows that, in my view, the Objector may rely upon the further particulars set out in the letter of 2 September 2008 and may properly call evidence with respect to such further particulars. Credit of Witnesses Ralph De Lacey [31] Mr De Lacey is a key applicant in each of the mining leases. Mr De Lacey provided four affidavits3 and was subject to extensive cross-examination. [32] I have undertaken a careful, detailed analysis of each of Mr De Lacey's Affidavits. Mr De Lacey's evidence is wide ranging and, in some respects, uncontroversial. I accept his evidence of his long mining association with the region. I also accept his evidence as to his observations made of surface mineralisation relevant to the MLAs. As far as issues arise as to Mr De Lacey's knowledge and experience in mining and, in particular, small scale mining, I accept his evidence. I also accept his evidence that he has a significant depth of knowledge and experience in the MLA areas in general. However, with respect to some specific matters his testimony is, in my view, deceptive, deliberately misleading and lacking credit. An analysis of these specific aspects of Mr De Lacey’s evidence follows under separate headings. Notice to landholders of intention to peg “a small mining lease” [33] There is no doubt that the Applicants held numerous prospecting permits which were used as the basis of pegging out the various MLAs referred to in this recommendation. There are questions as to whether or not proper notice of entry was given to landholders as required by s.32 of the MRA; that aspect of Mr De Lacey’s evidence is dealt with in a following sub-heading. However, what is beyond doubt is that, whether the Objector only received one notice of entry4 with respect to PP no. 21021, or two notices of entry, including a notice with respect to PP no. 21023,5 it is clear that both notices of entry included the same key sentence which is as follows: "I am required to give you seven days notice that I will be entering your land to peg a small mining lease." 3 See exhibits 27, 38, 40 and 45. 4 That being the notice of entry as set out in exhibit 18, RH1. 5 See exhibit 40, RD1. -- 24 of 127 -- 25 [34] Mr De Lacey’s stated intentions in using the words “a small mining lease” are set out in the following transcript exert while he was under cross-examination by Mr Ambrose SC:6 “With regard to this letter here RH-1 you’re giving a notice of entry that you’ll be entering the land to peg a small mining lease. Which small mining lease was this giving notice of entry to Kagara?-- That’s the generalisation as a person coming to peg a mining lease in a competitive field. I’m not going to say, ‘I’m coming in to peg six mining leases in precisely this spot and I’ll be there on 24th January to do so.’ I’m not going to do that. This is a generalisation, it’s a general notice of entry as required, specifically as required under the Mineral Resources Act, no more information but no less, just enough to satisfy the notice of entry has been served, that’s all. We’re not saying how many mining leases I’m going to peg and I don’t have to. But you do, you say ‘a small mining lease’. You say you’re going to peg one?-- Where does it say one? ‘a small mining lease’?-- ‘a’ means I’m going to peg them one at a time. I didn’t say I’m going to peg one mining lease. You’re not trying to nail me on I said I’m going to peg one mining lease, I did not say that. I said I’m going to peg a small mining lease. Which was it?-- I’m going to peg a small mining lease. I decided to peg a few while I was there, that’s how it went. Do you agree that you were deliberately misleading the landholder?-- I wasn’t deliberately misleading. I do not agree with that. I was not deliberately misleading the landholder. I was providing the required information as required by the Mineral Resources Act and no more. I was serving him notice and no more." [35] Clearly, Mr De Lacey is seeking the support of the MRA for his wording of the notice to enter. In this regard, s.32(1) and (2) of the MRA are relevant. They provide as follows: "32 Notice of entry under parcel prospecting permit (1) A parcel prospecting permit holder must give the owner of the land covered by the permit notice of entry before initial entry is made under the permit. (2) The notice must be given at least 5 business days before the intended entry (or a shorter time acceptable to the owner and endorsed on the notice). [36] In addition, s.18(1) of the MRA details the entitlements that a prospecting permit gives a holder with respect to entry into land: "18 Entitlements under prospecting permit (1) A holder of a prospecting permit for land may enter the land for― (a) purposes necessary to enable the holder to apply for a mining claim or mining lease over the land; or 6 T p.22. -- 25 of 127 -- 26 (b) prospecting purposes; or (c) hand mining for a mineral other than coal." [37] In my view, were Mr De Lacey's intentions truly as he has claimed, that is "a general notice of entry as required, specifically as required under the Mineral Resources Act, no more information but no less", then all that Mr De Lacey had to do was to refer to the prospecting permit and advise of his intention to enter the land after a period of 5 business days. Had Mr De Lacey chosen to be more helpful to the landholders, he could have referred the landholders specifically to sections 18 and 32 of the MRA. However, I am in no doubt that Mr De Lacey's reference to "a small mining lease" was deliberately deceptive and done with the intention of having the Objector in particular7 gain the impression that Mr De Lacey only intended to peg a single mining lease under the relevant prospecting permit. Mr De Lacey's excuse that "a" means that he intended to peg mining leases one at a time is simply a nonsense. [38] My view of Mr De Lacey's deceptiveness in this regard is strengthened by reference to Mr De Lacey's affidavit, exhibit 27. RD1(a) is an exhibit to Mr De Lacey's affidavit. It is a copy of parcel prospecting permit no. 21003 together with a handwritten notation at the bottom. Parcel prospecting permit no. 21003 is in the name of Ralph De Lacey. The handwritten notation at the bottom of the parcel prospecting permit has been signed by the O'Sheas who are the landholders of the land subject to parcel prospecting permit no. 21003. The handwritten notation states as follows: "We hereby give full permission to peg & mark out mining leases as per these permits nos. 21003 or permit no. 21004 as from & on the 6th day of January 2006." [39] From the evidence, it is clear that Mr De Lacey personally obtained the permission of the landholders to enter pursuant to parcel prospecting no. 21003 on the first day that the permit commenced, being 6 January 2006. Of course, pursuant to the MRA8 a landholder may agree to allow entry earlier than the required five days notice. That is clearly what the O'Sheas have done in this case. The critical aspect though is that they have given permission to Mr De Lacey 'to peg & mark out mining leases'. Clearly, they were under no illusion that Mr De Lacey intended to peg and mark out 7 As a landholder. 8 s. 2(2) MRA. -- 26 of 127 -- 27 more than one mining lease. That intention could only have been gained by the O’Sheas from Mr De Lacey. Delivery/Posting of notices to enter for various parcel prospecting permits [40] Section 32 of the MRA, set out above, makes it clear that the holder of a parcel prospecting permit must give the owner of land covered by the permit notice of entry before the permit holder enters the land. Given the mandatory nature of the wording of s.32(1) it is clearly in a permit holder’s interest to retain proof that the requisite notice has been given to all landholders. Unfortunately for Mr De Lacey, the evidence presented to the Court with respect to a number of the prospecting permits is anything but satisfactory. [41] On first reading Mr De Lacey's affidavit exhibit 27, the position insofar as notice to the Objector with respect to entry to its land under prospecting permits 21021 and 21023 appears straightforward. Paragraphs 29 and 41 of exhibit 27 state clearly that copies of the respective permits were posted to the Objector as landholder on 16 January 2006. However, in his next affidavit, exhibit 38, Mr De Lacey has this to say at paragraph 20: “20 In my earlier affidavit, I depose to providing the respondent with copies of certain prospecting permits. The permits that I posed to the respondent on 16 January 2005 comprised all six permits that related to the respondent’s land. My omission to refer to all six permits in my earlier affidavit was an unintentional oversight.” [42] In his affidavit, exhibit 40, Mr De Lacey provides the following comments with respect to parcel prospecting permit no. 21203: “1. I refer to my previous Affidavits filed in the Land Court on 5 June 2008 and 5 September 2008, and sworn 3 June 2008 and 4 September, respectively. I attach at ‘RD1’ a copy of a letter dated 17 January 2006 together with a copy of Parcel Prospecting Permit No. 21203 which was sent to Kagara Pty Ltd at the address stated therein by ordinary prepaid post on that day.” It is immediately apparent that Mr De Lacey has changed the date of posting to the Objector, at least with respect to parcel prospecting permit no. 21203, from 16 January 2006 to 17 January 2006. The reason for this change is unexplained, but perhaps is apparent when one views a copy of the notice for the prospecting permit which bears the date 17 January 2006. Such document is of course inconsistent with -- 27 of 127 -- 28 the document having been posted, as previously claimed by Mr De Lacey, on 16 January 2006. [43] Mr De Lacey was cross-examined by Mr Ambrose SC regarding the number of notices that he sent to the Objector. Firstly, Mr De Lacey gave the following evidence:9 “Could I take you to your second affidavit which is Volume 4, tab 21? Have you got that?-- I think I’ve got it. At paragraph 20 you refer to posting the permits to the respondent?-- Yes. To Kagara or to Mr Hetherington?-- No. There is a number of parties involved like the council, DNR. I posted two letters to Hetherington, only two. Two of those six were posted to Hetherington, not to Hetherington, to Kagara. Care of Mr Hetherington?-- No, care of Kagara’s postal address.” After further questioning by Mr Ambrose SC, Mr De Lacey stated that what he had sworn to in paragraph 20 of exhibit 38 was a “typographical error” and “an error in the typing, the preparing of the affidavit”. Mr De Lacey’s evidence in this regard is to be found in the following exert from the transcript:10 "Have a look at your affidavit at tab 21 of Volume 4 and in particular at paragraph 20? What you’re searing in paragraph 20 is that you refer to your earlier affidavit and providing the respondent with copies of prospecting permits. You say, ‘The permits that I posted’, you mean ‘posted to the respondent on 16 January 2005’, you mean ‘2007 comprised all six permits that related to the respondent’s land.’ Now you’re saying that you only sent two prospecting permits. Which is correct?-- Two is correct. That’s a typographical error. I didn’t post all six, I had no reason to post all six, I posted two. Why then did you say, ‘My omission to refer to all six permits in my earlier affidavit was an unintentional oversight.’ You’re reinforcing the fact that all six were sent?-- All six weren’t sent. This is an error in the typing, the preparing of the affidavit." [44] In my view, Mr De Lacey cannot distance himself from the plain, unambiguous language used in paragraph 20 of exhibit 38. He clearly gives sworn evidence that he posted six permits relating to the respondent’s land on 16 January 2005 (sic) and that his "omission to refer to all six permits in my earlier affidavit was an unintentional oversight". [45] I find Mr De Lacey's evidence that his evidence as set out in paragraph 20 of exhibit 38 was wrong because of a typographical error or a typing error in preparing the 9 See T. p.18. 10 See T. p.21. -- 28 of 127 -- 29 affidavit quite extraordinary. In my view, for whatever reason, when Mr De Lacey prepared and swore his affidavit, exhibit 38, he was under the belief, albeit mistaken, that he should have forwarded six notices of entry to the Objector and not two as he had deposed to in his affidavit exhibit 27. Mr De Lacey's evidence in paragraph 20 of exhibit 38 is, in my view, a deliberate attempt by Mr De Lacey to correct what he then saw as an error in his earlier affidavit. Subsequently, at the hearing and during cross-examination, Mr De Lacey, in my view, clearly understood that only two notices were required to be sent to the Objector. Only two letters purporting to be notice to the Objector with respect to parcel prospecting permits nos. 21021 and 21023 are in evidence. In my view, there is no credit in Mr De Lacey’s testimony that paragraph 20 of exhibit 38 was produced by, in effect, accidental error. Certainly, in my view, no more than two notices of entry were forwarded by Mr De Lacey to the Objector on or about 16/17 January 2006. Mr De Lacey's evidence in exhibit 38, paragraph 20, was both deliberate and an attempt to deceive the Objector and the Court. Mining approximately 200 metres from limestone caves in a national park containing a threatened species of bat [46] Mining lease 20497, tea tree revived, is located approximately, at one point, 200 metres from limestone caves which contain a threatened bat species.11 The limestone caves are located in the Chillagoe Mungana Cave National Park.12 I note that ML20510, tea tree extended, abuts tea tree revised on the north-eastern side, and is also in relatively close proximity, in part, to the national park. [47] As regards his application for an environmental authority with respect to these mining leases and, in particular, ML 20497 which is in close proximity to the threatened bat species, Mr De Lacey gave the following evidence during cross- examination by Mr Ambrose SC: “Let's just deal with the ones that you can agree with me on, that's the two Tea Trees, 20497 and 20510. At the time you made your application for a mining lease and environmental authority with respect to those two you knew that you intended to undertake mining activities and you knew that they were within two kilometres of the national park?-- That's correct. You also were aware of the standard conditions of the code?-- Yes. 11 See T. p.45 line 12. 12 Shown on map 2 of exhibit 51. -- 29 of 127 -- 30 So you would have been aware that condition 14 of that code says that you must not carry out activities within two kilometres of a national park?-- That's correct, I'm aware of that. I'll answer it that in the past -- That's what I've asked you. You were aware of that?-- I'm aware of that and I'm aware that you can always add conditions and I have previously just been through adding a condition and we can work closer to the national park boundary. It is possible to do, you can't say it's not. ... Having established that you knew and that you couldn't comply with condition 14 as it stood?-- I knew that I would be able to get a condition, I was confident that I could get a condition added to allow me to work closer to the national park because I've had experience in the past and I can do that. I've done it before and I know I can do it. I'll take you to your environmental authority application for 20497, Volume 2 Mr De Lacey. You see the first white tag there deals with 497?-- Yes. I'm taking you to document No. 3, the application form for the environmental authority?-- Yes. If I take you to section 5 you certify in this application that you are able to comply with the standard environmental conditions of the code?-- Yes. One of those environmental conditions is No. 14 which prohibits you from undertaking any activities?-- No, no, when we've got the mining lease granted, the tenure is granted, we develop our work program, we start getting added conditions. The first condition would be to work closer to the national park. I can confidently tick that knowing that when this is granted I will comply with the codes but to go to the next step of mining, the mining operation, I may have to add conditions and that's the standard practice. Mr De Lacey, when you advertise this in the newspaper for the public of Queensland to consider aren't they entitled to say, "Well he says he can comply with the - he certifies no less that he can comply with these conditions."?-- Yep. It's not saying to the people of Queensland, "Well we can't comply unless we get the conditions changed."?-- It's not saying that. That's exactly what you mean, "We can't comply until we get the conditions changed."?-- We can comply at grant. Once we start to carry out the impact or -- You can't carry out any activities in breach of clause 14?-- Until we negotiate with the EPA. The EPA on behalf of the people of Queensland will impose conditions on us. In which case do you accept that your environmental authority ceases to be a code compliant one if there are amendments to the code?-- The EPA will define that. If it comes to a point where they say we can't fit within a level 2 they will inform us that we have got to go up another level. That's also a common mining practice. We are actually going through that in another mining lease at the moment. It's done in stages. We start off at this level but we can progressively go up the scale and the EPA will bring that on to us. That happens all the time. -- 30 of 127 -- 31 What opportunity have the people of Queensland had to object to your application for a code compliant EA in those circumstances?-- They rely on the ability of the EPA to enforce that and the EPA are very good at doing it. I suggest to you where you said in answer to question 5 of your application for the environmental authority, "We are able to comply with the standard environmental conditions of the code." Where you have certified that I suggest to you that's untrue?-- I suggest to you that it's correct. I suggest to you that it's inaccurate?-- It's not inaccurate, it is correct. I suggest to you that it's misleading?-- It's not misleading, it's correct. The truth being that you could not comply with condition 14, you could not comply with the code unless you had those conditions altered?-- The mining lease will be granted under level 2. That's when we'll start to address these other issues. If you're going to say are we going to carry out mining in three or four months after the grant of the mining tenure under this code without conditions added highly unlikely, the EPA will be adding conditions to it before we start mining activities.” [48] I will deal later in this decision with the legal question as to whether or not a mining lease may be recommended for grant and granted within two kilometres of a national park. For present purposes, I am considering issues relating to Mr De Lacey's credit in answering questions in his environmental authority application relating to his ability to comply with various standard conditions in the code, and in particular condition 14. In my view, it is patently clear that Mr De Lacey was being, at best, misleading in his answering of various questions in his environmental applications. I have no doubt that Mr De Lacey knew that he could not undertake any mining activities in areas that were proximate to the national park and, in particular, in close proximity to the limestone caves containing bats, under the standard conditions. Chemical processing on MLA20500, Arthur’s Dome [49] Like the issue discussed above relating to Mr De Lacey's application for his environmental authorities in close proximity to a national park, with respect to MLA 20500 the Objector has raised issues of concern regarding chemical processing on the MLA area. Mr De Lacey gave the following evidence regarding this issue, again during cross-examination from Mr Ambrose SC:13 "With respect to MLA20500 don't you agree that chemical processing is necessarily involved?-- Not necessarily involved no. 13 T. p.52. -- 31 of 127 -- 32 Isn't it the most likely?-- Not in the first stage of the mining operation. It's unlikely we will be using chemicals in the first stage of the operation. When you fill out your application for the EA and it asks what chemicals or processing will be used and you say "not applicable". Why don't you say it's not applicable in the first stage but it will be in a later stage?-- That detail isn't required. We don't ever do that. We don't go into that graphic detail in an application. EA is your authority to conduct mining activities?-- We will operate under the level 2 EA to start with. We will do that, we'll stick within the codes of environmental compliance to start with. As it unveils different things have got to be added the EPA will be on our back, we'll progressively lift the level of EA. That's how it works. That's how it always works." [50] In my view, the same considerations apply with respect to Mr De Lacey’s completion of his environmental authority application with respect to MLA 20500 as applied with respect to MLA 20497 and MLA 20510 set out above regarding the national park issue. I am in no doubt that during the mining program proposed for MLA 20500, after the initial set-up stage, chemical processing will be required as part of Mr De Lacey’s mining operation and, as such, the standard conditions, at least in part, will not be applicable. I am also in no doubt that Mr De Lacey was fully aware of this situation when he completed his application for an environmental authority and that, in answering the question as to “what chemicals or processing will be used” with the words “not applicable”, Mr De Lacey was again being deliberately misleading. Mr De Lacey’s evidence to the effect that “that's how it always works” may indeed be correct. However, he led no supporting evidence to support this contention. Furthermore, if it is truly a practice of many miners that they complete their environmental authority applications, certifying that their mining activities meet the standard criteria when they actually know that, at least in some respects, they cannot comply, such false certification practices cannot be used as justification in these or any other MLAs. [51] Clearly, the making of false certifications in environmental authority applications is a matter of concern. I appreciate that the EPA has scant information to process when making initial decisions that standard environmental authorities are appropriate for a MLA. The EPA, quite correctly, relies upon the honesty of applicants in completing their environmental authority applications. However, one would expect a rigorous approach by the EPA whenever a miner, following grant, seeks amendment of the standard conditions, particularly in circumstances where it becomes obvious that the miners mining operations would always have required the standard conditions to be -- 32 of 127 -- 33 amended, and falsely certified to the contrary in the original environmental authority application. Mining adjoining mining lease application areas as separate mining operations or as joint mining operations [52] The material clearly shows that two of the MLAs currently under consideration, being MLA 20497 and MLA 20510 (tea tree revived and tea tree extended) abut each other. In fact, but for the north-west part of MLA 20497, MLA 20510 surrounds MLA 20497. It is also clear from the material that MLA 20496 abuts MLA 20505, for which a recommendation for grant has already been made by this Court.14 As regards his intentions for mining these MLAs either individually or co-jointly, Mr De Lacey had this to say during cross-examination by Mr Ambrose SC: “Similarly with respect to mining lease applications 20497 and 20510 they also abut do they not?-- If you say they do yes. There is another one that does. We call it Tea Tree. At the time of your applications that you lodged with respect to each of those you said that each of them will be a separate operation?-- That's correct. At no stage did you say "If we get both it will be a combined operation."?-- There was no question asked of that. That doesn't come up until we get both. At this stage we're applying for separate mining leases, stand alone mining leases. The method of mining and the mining program will necessarily be different if you operate them jointly?-- No, no different, there will be no difference. You won't have two central treatment plants?-- You're going to go down that again, of course there won't. I mean it's logical that you would join them together but as far as environmental impact there'll be no - I mean if you were to operate both independently, if I was to sell one off and somebody was to operate a mine on one and I was to operate a mine on the other, the impact would be actually be doubled, so by joining them together I've minimised the impact by having one central point, one tailings dam, one whatever it is. It will have a lesser effect not a larger. When did you submit the Google maps to the Department of Environmental Protection?-- They came with the information after the certificate of application is issued, when we are asked to provide further information for the Land Court to decide it. That's the standard thing, there's nothing wrong with that. Was it at that point that you had decided to operate them together, 510 and 497?-- The court is still out, we haven't made the final decision yet. Our position is they're all independent. If we get both granted we'll make the decision then. It's logical to join them together. I suggest to you that the Google map for 497 shows 510 next door to it and only shows one treatment plant?-- We probably did in that case. That's probably when we started to think about it, that's probably the case. 14 See [2007] QLC 0099 -- 33 of 127 -- 34 You always intended them to be worked together?-- No, not always intended. I answered your question earlier on. We have changed our intentions. We've got two applications abutting. In the case where we've got two applications abutting we are considering to operate them together, that's logical. It's logical to join them together. I suggest to you that the Google map for 496 and 505 also shows an intention that there be one joint operation?-- That's probably the case. That's our current thinking at this stage.” [53] When one looks at the Google maps tendered in evidence with respect to these particular MLAs,15 there can be absolutely no doubt that the proposed layout of various plant, equipment and mineralised areas on the MLA areas, evidence a clear intention that both are to be operated as joint projects; that is, MLA 20496 and MLA 20505 are intended to be operated as one operation, and MLA 20497 and MLA 20510 are intended to be operated as a single operation. [54] Although there is some doubt as to precisely when the Google maps were produced and delivered to the mining registrar and the EPA,16 all relevant Google maps contain a notation at the centre bottom of each page bearing the year 2007 in three separate entries.17 Given the totality of the evidence regarding the Google maps, the most likely timeframe for their production is some time in the latter part of 2007, after the objection period closed. [55] There is no doubt that a miner may change his/her intentions as to mining in the time from when a MLA is lodged to after such application is publicly advertised. On the evidence referred to above with respect to MLAs 20496, 20497 and 20510 under consideration in this recommendation, that is certainly the case. However, such intention, clearly shown by the Applicants own Google maps of 2007, is inconsistent with evidence given by Mr De Lacey in his affidavit, exhibit 27, in which he swore as follows:18 “107. The Mining Leases the subject of this proceeding are not intended to be operated as a single project, and I do not believe that it would have been appropriate to apply for an integrated environmental authority to cover all of the Mining Leases. Each Mining Lease is a separate project, and should have a separate environmental authority. This allows for each project to commence at different times.” [56] Mr De Lacey’s affidavit, exhibit 27, was sworn by Mr De Lacey on 3 June 2008. As shown in the proceeding paragraph, he is categorical in stating that each MLA is to 15 Exhibit 52. 16 See T. p.49 lines 5-17. 17 The Google maps are to be found on the CD Rom, exhibit 52. -- 34 of 127 -- 35 be mined as a separate project. Whilst it is clear that either of the three MLAs referred to, together with MLA 20505 already recommended, could be mined as an individual project, I am in no doubt whatsoever that at the time of swearing his affidavit on 3 June 2008 it was Mr De Lacey’s clear intention to mine the adjoining mining leases together as, effectively, two mining operations instead of four and that, in swearing to the contents of paragraph 107 of his affidavit, exhibit 27, Mr De Lacey was being deceptive and misleading. John Sainsbury [57] John Sainsbury is also a key witness for the Applicants. His evidence is an intriguing amalgam. Part of exhibit 2 contains a report prepared by John Sainsbury Consultants Pty Ltd under the hand of John Sainsbury. When the report of John Sainsbury Consultants Pty Ltd is read in light of Mr Sainsbury’s curriculum vitae,19 I have no doubt that, in usual circumstances, the report prepared by Mr Sainsbury would fall under the category of expert evidence. Mr Sainsbury holds a Bachelor of Science (Hons) Geology from Sydney University in 1976. He is a Member of the Australasian Institute of Mining and Metallurgy AIMN, and a member of the Society of Exploration Geologists. He has a long and extensive career in geology, exploration and mining, and has particular expertise in mining in North Queensland in general and in the area of each MLA in these matters specifically. However, at the end of the report, John Sainsbury states as follows:- “Declared Interest – John Sainsbury has a 1/3rd interest in the above mining leases. [58] I note that the report contained in exhibit 2 relates to only six MLAs, those being MLAs 20497, 20500, 20502, 20503, 20504 and 20510. [59] In addition to the report and his curriculum vitae Mr Sainsbury also provided by way of evidence an affidavit.20 In paragraph 7 of his affidavit, Mr Sainsbury states that “I am not an applicant for any of the mining leases”. [60] Mr Sainsbury was cross-examined specifically on this aspect as follows:-21 18 At para 107. 19 Exh.43. 20 Exh. 41. 21 T.60. -- 35 of 127 -- 36 "Paragraph 7 says that you’re not an applicant for any of the mining leases. Why is that?-- I chose not to be. Why?-- I don’t wish to answer that I just chose not to be" [61] There are numerous authorities relating to the assessment of the credit of a witness and the benefits, or otherwise, that the judicial officer at first instance has of observing the demeanour of a witness in the witness box. It is certainly not uncommon for the typewritten words of a transcript of evidence to convey a very different impression or meaning to that of the spoken word and demeanour. This is certainly the case, in my view, with Mr Sainsbury’s evidence. [62] Mr Sainsbury’s evidence was delivered in a cocky, arrogant, conceited ‘know-it-all’ manner. Exploration or mining [63] Mr Sainsbury’s arrogance in answering questions under cross-examination is also clearly evident from the cross-examination by Mr Ambrose SC relating to whether or not the area of each MLA has been proven up as far as mineralisation is concerned and are ready to mine, or if in fact each MLA area is essentially a rough area which has been a best guess in which further exploration work is required. This aspect is one of the many pillars, but a relatively key one, that the Objector relies upon in seeking a recommendation that the mining leases not be granted. [64] Mr Sainsbury had this to say in response to questioning by Mr Ambrose SC as to the boundaries and shape of each MLA:-22 “I was reading to you the second sentence, ‘The boundaries and shapes allow for the exploration required to establish mineral resources at current metal prices.’?-- Yes. Are you not saying there that what needs to be done when these mining leases are granted is that there be exploration?-- I’m also not saying that you can undertake mining. Why didn’t you say so?-- Where was the need for me to say so. Because --?-- There was no need for me to say so. … the boundaries and shapes allow for mining?-- The boundaries and shapes allow for mining but I had not written that in that paragraph. 22 T.63. -- 36 of 127 -- 37 Have you written it anywhere else?-- It doesn’t negate that I believe mining can start on those mining leases once they are granted. That may be so, I just wondered why you wouldn’t have said so?-- There’s no requirement for me to say so in that note.” [65] Taking Mr Sainsbury’s evidence as a whole, with respect to this particular aspect in my view Mr Sainsbury’s statement in his report that “the boundaries and shapes allow for the exploration required to establish mineral resources at current metal prices” was his professional, expert opinion. In my view, he provided that opinion in light of his areas of major expertise, being geology and exploration, and did not take into account the prospect of mining starting within the areas of each MLA without additional exploration. It is unfortunate that he chose not to say as much, plainly and simply. MLAs mined as single or joint operations [66] Another key aspect of this matter, particularly with respect to the relevant environmental authority required for each MLA, is the manner of operation of the mining program for each MLA. I have already dealt with Mr De Lacey’s evidence regarding his current insistence that the mining on each MLA will be done as a separate, distinct project. However, this was clearly not the view of Mr Sainsbury when he completed his report of 3 December 2007. The following cross examination by Mr Ambrose SC is insightful and must be read in light of my earlier comments above regarding the cocky, arrogant, conceited ‘know-it-all’manner in which Mr Sainsbury gave his evidence:-23 “Paragraph 10 you say you’ve read a copy of the affidavits of Mr De Lacey sworn 3rd June and 2nd September? ---Yes. And you say, “I now understand that the Applicants intend to develop each of these leases independently.”?---Yes, that’s their comment. That’s what the Applicants have said. You understand that now, originally you understood their intention to mine 497,510,503, 504 and 502 as a combined operation?--- No, I’ve never known that to be their intention. I see that their intention is because they make comment now that they wish to mine them as separate projects. That’s their intention. I’m just trying to understand what you’re saying. “I now understand that the Applicants intend to develop each of the leases independently.” What did you 23 T.60-62. -- 37 of 127 -- 38 understand their position to be before this?--- My understanding would be and my comment too when the tenements were taken up that that project could be looked at as one project by way of mining from several areas and taken to one site for the treatment. Indeed. You originally understood---?--- No, that was my comment to them that whether the application was ever completed and that’s my comments to them is the way the application has been prepared by Ralph…. The first paragraph in bold commencing, “Tea Tree, Hobsons and Boomerang are copper and gold deposits. Dimensions are similar and expectations of each containing 1 million tonne of ore to 100 metre depth could be expected. The three prospects are 4 kilometres apart and a common processing would be undertaken at a common site.”?--- That’s my comment to Ralph, yes. They would be undertaken?--- That’s my comment to Ralph in a report that he doesn’t have to take any notice of. If I make a comment like that that’s up to Ralph to use or not to use. I see. Processing would be undertaken at a common site. Why didn’t you say processing could be undertaken at a common site?--- I didn’t say that and there’s “would” in there. It is a comment to Ralph. He can make use of it or not. The second group there is Christmas Gift and the second part of bold says, “The processing option for the Tea Tree/Hobsons/Bommerang mineralisation would be used”, would be used, “for the Christmas Gift group”?--- Again a comment to Ralph. He can use it or not use it as he wishes. It certainly made a lot of sense to you and a man of your experience that you’d have a central processing plant for the operations of these MLs that are mining the same mineral?--- It’s an option that would make sense to me. Others with an equally valid sense of how to make a mine work may not come to that same view. I suggest to your by saying what you said would be and would be used, you’re expressing view that was the view of someone who had a one third interest in those ML’s?--- The inference being what? That you had an equal interest to Mr Foster and Mr--?--That’s correct. I made that quite open. Why would you defer it, why weren’t you expressing the view of the group?— Because this is a report done by me to the group, It’s one option available to the group to consider as a mining option for the projects we’re looking at. You now understand that Mr De Lacey says, “Well no, we’re not going to do that.” You now understand that they’re going to develop each of them separately?--- It’s a consideration yes, it can be considered. There’s nothing set in concrete yes at the moment. I suppose it’s also possible for 496 and 505 to be developed as a joint operation?--- A consideration could be given that way, yes. And it’s possible also that 497 and 510 could be dealt with as a single unit?--- It’s possible, yes. But it’s not your understanding that that be done. Your understanding is that they be all separate--?--- It’s not my understanding of anything. I’ve offered a view, others may not run with that view. -- 38 of 127 -- 39 You don’t have an understanding of anything in terms of what might happen on these applications do you?--- I have offered a view as to how they could be developed, others may have other views. [67] Mr Lilley SC tried to clarify Mr Sainsbury’s evidence in this regard in re- examination, which was the only topic covered by Mr Lilley in re-examination. The relevant re-examination is as follows:-24 “Mr Sainsbury, whose decision was it as to the way in which to conduct mining on these mining leases?--- It will be a joint decision as to how we believe we can best make an area economic for us. At the time of the application whose decision was it?--- I made the decision as to where we should be taking the shapes of the mining leases to make sure that we had what I considered the viable expressions of the mineralisation within the mining lease application.” [68] It would have been a very simple matter indeed for Mr Sainsbury to have simply answered Mr Lilley's SC question as to whose decision it was as to the way in which mining would be conducted on the mining leases at the time of the application. Quite clearly, Mr Sainsbury’s answer to that question is of no assistance whatsoever. There is no doubt that Mr Sainsbury was the person responsible for marking out the shapes of the relevant MLAs. [69] In my view, the contents of Mr Sainsbury’s report, exhibit 2, contain the truth of the situation. It was clearly the original intention of the Applicants, and Mr Sainsbury as a interest holder in various applications, to combine some or all of the MLAs into joint operations. It is also clearly my view that it remains Mr Sainsbury’s professional view that the most appropriate way of undertaking mining on at least most of the MLAs in question is by way of joint operations, particularly relating to the use of a single mill or plant for a number of MLAs closely grouped together. [70] On the one hand, Mr Sainsbury’s evidence appears to indicate that the mode of mining operations on each MLA is a matter for Mr De Lacey, whilst on the other hand stating that the plan of operations for each mine will be a joint decision. I find Mr Sainsbury’s evidence as to the likelihood of mining each MLA as a separate mining operation most unreliable. 24 T64-65 -- 39 of 127 -- 40 Evidence of mineralisation [71] Mr Sainsbury’s report, exhibit 2, contains extensive evidence as to the geological history of the area of the MLAs and of mining operations both general to the area and specific to many of the MLAs. His evidence in this regard is quiet persuasive. I have little doubt that Mr Sainsbury has high expertise in his field of geology and exploration and has significant expertise in reading the local geology, observing outcrops of mineralisation, analysing historic data, both of a previous mining nature and of a general geological nature, and putting all of those pieces together. He has the expertise to properly and efficiently mark out MLA areas which in his considered view are appropriate for mining operations to be undertaken for the various minerals as set out in his report. Dr Michael Andrew Gilbert [72] Dr Gilbert was called on behalf of the Applicants as an expert witness. He provided a formal affidavit and annexed curriculum vitae25 in addition to his oral evidence. [73] I was impressed by Dr Gilbert's evidence. He gave his evidence in a confident, relaxed manner. [74] Major aspects of his evidence relate to the existence of bat colonies in the vicinity of the MLAs, in particular the Large-Eared Horseshoe Bat. His evidence goes into some detail in particular with respect to MLA 20497 (Ti tree revived), which is located at its closest point approximately 200 metres from limestone caves. [75] Dr Gilbert clearly identifies the risk to the environment that the proposed mining operations create and suggests that special conditions be put in place including base line environmental studies. [76] The only criticism I would make of Dr Gilbert's evidence relates to paragraph (18) of his affidavit, which he states as follows: "18. In my experience particularly with small scale miners it is desirable for baseline environmental studies to be conducted subsequent to the grant of a mining tenure to provide security for the expenditure of monies associated with the environmental baseline study." 25 Exhibit 39. -- 40 of 127 -- 41 [77] Mr Ambrose SC during cross-examination asked specific questions of Dr Gilbert regarding paragraph (18) of his affidavit. The relevant evidence is as follows26: "paragraph 18 you say it's your experience particularly with small scale miners it is desirable for baseline environmental studies after the grant of a mining tenure and do I understand you to be saying then that that's desirable from the point of view of the miners?—Yes, I mean – " [78] In my view, it would have been preferable for Dr Gilbert to have stated in his affidavit that a baseline study be undertaken prior to the commencement of mining, and that from his expert environmental experience it did not matter, on environmental grounds, whether or not such baseline activities were undertaken pre- or post-grant. That said, however, Dr Gilbert has not in any way set out to deceive or mislead the Court. He has clearly stated in his affidavit, and maintained under cross- examination, that from his experience small miners require the grant of tenure prior to undertaking baseline studies and the like so that they have security of tenure and can raise the necessary finance. [79] Insofar as Dr Gilbert's evidence refers to what is or is not beneficial for small miners, in my view such evidence falls outside of his direct expertise as an expert witness. However, taking into account the provisions of s.7 of the Land Court Act 2000, I am prepared to receive and take into account Dr Gilbert's evidence relating to the timing of a baseline study, although not giving such evidence the same weight as would be the case were it expert evidence in the strict sense. [80] I will consider other aspects of Dr Gilbert's evidence specifically with respect to the later parts of this decision that relate to the environmental objections. Russell Hetherington [81] Mr Hetherington is a director of Hetherington Exploration and Mining Title Services Pty Ltd. He has acted as the agent for the administration of the Objectors' various mining tenements in Queensland for at least 10 years. Mr Hetherington has filed two affidavits that have been relied on by the Objector in these proceedings; the first being an affidavit of 17 December 2007 (Exhibit 5) used initially for the strike-out proceedings, and the second an affidavit of 3 September 2008 (Exhibit 35). 26 T 66 – 67. -- 41 of 127 -- 42 [82] Read in isolation from the rest of the evidence in these proceedings, Mr Hetherington's two affidavits could be easily accepted as being predominantly 'machinery type' in that they convey technical information such as maps of various mining leases, copies of prospecting permits, details of tenure, and the like. As such, on their face, it would not ordinarily be thought that there would be any controversy regarding Mr Hetherington's evidence. However, a very different picture arose when Mr Hetherington was subject to cross-examination by Mr Lilley SC Non-Renewal of Objectors EPM 10387 [83] During cross-examination, Mr Lilley SC asked Mr Hetherington various questions regarding his part in the Objectors' EPM 10387 expiring on 31 December 2005. Mr Hetherington's evidence is that his responsibility is to inform his client of their responsibilities to renew a EPM and then await instructions. With respect to the Objectors' EPM 10387, Mr Hetherington explained the reason for its termination this way: "It failed to lodge an application for renewal."27 Mr Hetherington's evidence also is that he is not in any dispute with the Objector about the loss of its EPM.28 [84] What Mr Hetherington did not reveal was that, on behalf of the Objector, he had lodged an application for renewal of EPM 10387 with the mining registrar on 5 January 2006. By letter dated 19 January 2006, the EPM renewal application was returned to Mr Hetherington by the mining registrar as it was lodged after the expiry date of the EPM.29 [85] I accept Mr Hetherington's evidence with respect to renewal of the Objectors' EPM that he only acted on instructions. Clearly, Mr Hetherington did at some time received instructions to renew the EPM but I am unable on the evidence to make any findings as to whether or not those instructions were received before or after 31 December 2005. I do accept that Mr Hetherington lodged an application on behalf of 27 T 71. 28 T 71. 29 T 75. -- 42 of 127 -- 43 the Objector on 5 January 2006 and that that application was not successful because it was lodged after the EPM had expired. A careful and precise person [86] Mr Hetherington's evidence is that, given the nature of his company's business, he is always "very careful".30 Mr Hetherington is the agent of the Objector for purpose of conducting the proceedings and was in fact the only representative of the Objector in its capacity as an Objector.31 [87] As detailed earlier in this decision, the objections made by the Objector to each mining lease are extremely comprehensive, covering essentially every possible element that could be raised in objection to a mining lease. With respect to the preparation of the objections, the following is Mr Hetherington's evidence during cross-examination by Mr Lilley SC.32 "So it is essentially you that is the driving force behind the opposition to these mining leases, is that correct?-- No. Let me put it another way: you're the architect of the basis for the objections to the mining leases?-- No. You're the only person who prepared the objections in the first place aren't you?—I received instructions from my client to prepare and lodge objections which I did indeed do. You're the architect of the nature of the objections taken in the form of objection?-- I'm unclear what you mean by "architect". The ideas expounded in the objection are your ideas, is that correct?-- No, not my ideas at all, they're fact. I'm not making things up. Mr Hetherington, I think you're being a little difficult?-- I don't think so. You prepared the objection?-- That is correct. The ideas behind the objections are your ideas?-- No. Whose ideas were they then?-- My client instructs me to lodge objections. I review the legislation, I determine where there have been failings in the applications, I address those points, I draft the objection and I lodged it. So you are the architect of the form of objection that was lodged in relation to all of these leases aren't you?-- If that's what you mean by "architect" yes. 30 T 76. 31 T 66. 32 T 77. -- 43 of 127 -- 44 You've brought to these opposition proceedings the same care and attention to detail that you demonstrated yesterday when I wrongly referred to claims haven't you?-- I'm not sure what you're getting at, sorry. You've been very particular about every possible small item that could be raised as an objection, the same as you were particular yesterday?-- I endeavour to be, yes. We're in proceedings so I try and be precise." [88] In the third dot point of the first ground of objection prepared and lodged by Mr Hetherington with respect to each of the MLAs, the statement is made that "the area of the land is not mineralised".33 Mr Hetherington, in the objections, provided facts and circumstances which he relied upon in support of that ground of appeal. The relevant facts and circumstances state as follows: Facts and circumstances relied on in support of the grounds The applicant/s for the MLA have never been granted any entitlement under the MRA to access, assess, prospect or explore the area of land subject to the MLA for the purposes of determining whether the land is mineralised and what mineral resources may exist in the MLA. Even if the land could be found to be mineralised, the Applicants have never been granted any entitlement under the MRA that could enable the applicant/s to conduct any investigations to determine the extent of mineralisation, or to determine an acceptable level of development and utilisation of the mineral resources which could exist in the MLA. [89] Mr Hetherington's evidence was somewhat different again during cross- examination34. "Do you agree with Mr De Lacey's evidence that there probably is mineralisation on the land the subject of these applications?—I'm no geologist but from what I understand the mineralisation is not minable. Is not minable?-- That's correct." [90] In my view, the fact that Mr Hetherington can flow almost seamlessly from a position that "the land is not mineralised" then to "even if the land could be found to be mineralised" and ultimately to "the mineralisation is not minable" raise serious questions regarding his credibility. This is not the evidence of a careful and precise person. Doubts about Mr Hetherington's reliability do not end with his views on mineralisation. 33 See the Objections detailed in full earlier in these reasons. 34 T 78. -- 44 of 127 -- 45 Notice of entry to Objectors land [91] On the evidence, there is certainly dispute as to what notice of entry the Applicants gave Objector as landholder pursuant to the applicant's various prospecting permits. Mr Hetherington was subject to significant cross-examination on this point. Although lengthy, this aspect of the cross-examination also has an impact on my analysis of the credit of Mr Hetherington's evidence. [92] Set out below are various extracts of Mr Hetherington's evidence during cross- examination relating to the question of the Objector receiving a notice of entry.35 "You swore in your first affidavit at paragraph 10 that you were not aware of any notification from the applicant of entry to Kagara's land didn't you?-- Yes that's correct. … The purpose of the affidavit was to come to this court and make a submission that my clients' applications for mining leases should be summarily dismissed; isn't that the case?-- It wasn't the sole purpose. There was evidence in support of that argument, correct. And you intended that that statement in that affidavit would be used on that application didn't you?-- I expected it would be as part of the submission, yes. … So you intended the information in it would be used and relied on by this court?— As part of the submission, yes. You also knew that the same information would be used to induce the Minister to dismiss these mining lease applications?-- No. The recommendation of the court goes to the Minister. Did you not give instructions that a letter be written to the Minister asking that these mining lease applications be dismissed?-- No. I drafted a letter, I didn't get instructions, I did a letter. You drafted the letter?-- Yes. And in that letter you said to the Minister that no notice of entry had been given to Kagara didn't you?-- I cannot recall but at the time the information from my office was that we hadn't received it. Forget about this information from your office, you told the Minister that Kagara had not been given notice of intention to enter didn't you?-- Could I have a look at the letter again to see if I did say that? What paragraph? On the second page I think. It's in the paragraph numbered 2(a) first bullet point on the second page and you say to the Minister, "and the Applicants have not given notice of such activities or sought consent from Kagara to enter land for these or any other purposes."?-- That comment is not in relation to the prospecting permit that we're talking about. What I'm saying there is and what I stated yesterday that 35 T 81 – 86. -- 45 of 127 -- 46 there's never been any entitlement for the Applicants to come onto the land because they've never applied for any prospecting permit to do any work during the currency of Kagara's EPM. That's rubbish. I put it to you that that is rubbish?-- … BY MR LILLEY: I'll read the whole passage. Let's put the whole thing in context first all. At the beginning of the letter you say, "in making the MLA’s", the first bullet point in the letter on p.1, "in making the MLA’s, the Applicants for those mining leases have not complied with statutory requirements." Do you see that?-- Yes. And then item 1, "Fatal flaws in each of the mining lease applications." Item 2, Public interest reasons why they should not be granted and item (a), "There were at a minimum, the following serious defects in the way the MRA processes were commenced." Bullet point 1, "The Applicants have not conducted and - and have not even had the benefit of legal access to land to conduct - prospecting or any resource or environmental assessment. (Kagara owns all the relevant land on all the MLA’s", well that's false isn't it?-- I corrected that. It was false to tell the Minister and you haven't since written to the Minister saying, "I'm terribly sorry I made an error.", have you?-- Not that I'm aware of, no. Then you say, "and the Applicants have not given notice of such activities or sought consent from Kagara to enter land for these or any other purposes.", when in fact you had been given notice that the Applicants were going to enter the land?—For pegging. Oh I see, you want to make that distinction. So you're happy to tell the Minister generally speaking you've had no notice for those purposes but you're not prepared to tell him in the same breath that you've had notice for other purposes?-- The Minister is aware that we've had notice for pegging. In the context of what I'm saying there I think the introduction in that paragraph is quite clear. It says we've had no legal access for prospecting or to conduct any minerals assessment. The wording you used, the precise wording you used, is to enter land for these or any other purposes?-- I made an error there. It should be all other related purposes. These are very serious errors for a very careful person to make aren't they?-- I think that's being a little bit pedantic in the context of that paragraph. I'm being pedantic now am I?-- I think so. I think it's very clear what's being said there. What I'm saying is that, as I've said to yourself and to the court before, that the applicant had an entitlement to come onto the land at any time to conduct prospecting and environmental assessment. That was never done. Mr Hetherington, what you're saying is that you had no notice of any permit to enter the land and you were telling the Minister that and you were telling him that for no purpose whatsoever had your company received notice and you are hoping that he would act upon that to summarily terminate my clients' mining lease applications?-- No I don't think so. If you look at the third dot point I'm stating that in fact they've had access to come in there with a prospecting permit for pegging purposes. I've stated that. How are you able to state that, you didn't know it at the time?-- What I said was we hadn't been served notice of the prospecting permit. I've since seen copies of the mining lease applications which say that he's been issued with a prospecting permit. We hadn't received notice of it. I'm not saying he hadn't been issued with it. -- 46 of 127 -- 47 You've now sought to explain the falseness of your first affidavit by simply calling it a failure to recollect that you had received the notice?-- No, I didn't explain that. You didn't ask me to explain how I made the error. I'm happy to-- No I didn't, you did it in an affidavit all of your own?-- No I didn't explain how I did it. Mr Hetherington, go to Volume 4 please and your affidavit which is under tab 18 there and in the first paragraph at the top of p.2, the last sentence, "My failure to recollect having received that letter at the time of swearing my affidavit was due to an oversight on my part.", so you do explain that it was a failure to recollect that you had received it?-- Yes. I suggest to you that you chose to swear an affidavit in order to try and have my clients' applications summarily struck out without bothering to check the accuracy?- - No, as soon as I realised there'd been an error I corrected it straightaway. As soon as you realised?-- Yes. This affidavit is dated 3rd September 2008 and the previous false affidavit is dated I think December 2007?-- Mmm. You're quite content for this court to act upon that affidavit to have my clients' applications struck out, no apology, no nothing?-- I'm happy to apologise to the court. I mean it's a regrettable error. That's not the particularly careful person that you painted when we started this cross-examination is it?-- It's the same particular careful person. Unfortunately the matter wasn't brought to my attention at Brisbane office. I suggest to you that until someone brought that letter to your attention not so long ago you had no knowledge of it whatsoever and you'd never seen it?-- That's correct. So it's quite wrong then to swear now that you failed to recollect having received it because you never knew you received it?-- If I had received it I can't recall receiving it. When I realised the error I immediately sought to correct it and I do apologise. It's the sort of thing I never intentionally try and overlook or avoid. At the relevant time you simply were not interested whether you had received a letter or not. You swore an affidavit without checking your company records?-- No, that's not right. You now agree of course that you received a letter as Mr De Lacey swears concerning permit 21021 didn't you?-- I never said that I didn't receive 21021. Yes you did, you told this court on the strike out application that you didn't receive any letters. You now agree you received one in respect of 21021 don't you?-- You'll have to bear with me. I wasn't meaning to revisit the whole thing about --?-- I'd have to look at the strike out to be honest with you. Go to your first affidavit in volume 1?-- There's receipt of Mr De Lacey's notice, there's a date stamp on it. Yes we received that. Yes, you acknowledge that you received 21021 now?-- That's correct. -- 47 of 127 -- 48 Previously you said you hadn't received it?-- I don't know about that. …" BY MR LILLEY: In paragraph 10 of your original affidavit you said, "I am not aware of any notification from the applicant of entry to Kagara's land which underlies portions of the eight mine lease applications." That's what you swore?-- It's the notice of entry, there's nothing about a PP. … MR LILLEY: All I want this witness to agree is that now he agrees that they received the notice in respect of permit 21021 which wasn't in that previous affidavit. WITNESS: To the extent that it purports to be a notice of entry yes. BY MR LILLEY: You have received a permit for 21021?-- Yes, because you've got a date stamp of that. I'm suggesting to you that it's more likely than not that you also received the permit which is 21023?-- No. We have a fairly precise method of recording documents received in the office because of the nature of our business in the Brisbane office. I suppose that's difficult to submit after the fact that one's gone astray but I've asked them to go through all the files and double check all the records and the mail entry register and there appears to be no evidence of receipt of 21023. It's such a precise system that it didn't disclose to you that you had received 21021 from January 2006 through to and including almost 3rd September 2008 isn't it?-- That's what I just said. [93] There are a number of specific points to be made from the evidence above. Mr Hetherington was careful to explain that he was not saying that the Applicants had not received prospecting permits, just that the Objector hadn't received notice of them. He further explains that he became aware of the existence of the prospecting permits by reference to the MLAs. I totally reject Mr Hetherington's evidence in this regard. Specifically it flies in the face of s.31 of the Mineral Resources Act 1989 which states as follows: "31 Mining registrar to notify owners of occupied land of grant of parcels prospecting permit (1) Upon granting a parcel prospecting permit, a mining registrar must, within 5 business days after the grant, advise the owner of any occupied land specified in the permit including occupied land (other than a reserve for public road) specified as access. (2) Where advice is not in writing, the advice shall be confirmed in writing as soon as practicable." [94] There is absolutely nothing in the evidence to suggest that the mining registrar was derelict in his duty in not complying with s.31 of the MRA with respect to each of -- 48 of 127 -- 49 the prospecting permits issued. Indeed, the evidence in the subpoenaed files clearly points to the mining registrar advising owners of occupied land of the existence of the prospecting permits. [95] I am satisfied beyond any reasonable doubt that the Objector knew within a short period of time of their issue that prospecting permits had been granted by the mining registrar to the Applicants. I also am in no doubt that, if such advice was provided by the mining registrar directly to the Objector and not to Mr Hetherington, then the Objector would have very quickly passed that notice on to Mr Hetherington. My view in this regard is reinforced by the fact that this was occurring during a period where Mr Hetherington was waiting to see what the mining registrar was going to do with the late renewal application for EPM 10387. It was also at or about this time that the Objector itself became extremely active in obtaining its own prospecting permits and pegging its own MLA in various parts of the land previously covered by its expired EPM, and indeed Mr Hetherington’s firm lodge the Objector’s MLAs36 during this period. Why did the Objector lodge its objections [96] Ordinarily, it is a right established under the MRA for any person to lodge an objection to a MLA. Issues relating to the motivation for an objection are not of themselves relevant; what is relevant is the terms of the objection, the facts and circumstances said to be in support of the objection, and the MLA itself. Without doubt, however, this case is one where the motives and actions of all of the parties, be they the Applicants or the Objectors, are brought into play. In my view, this situation arises as a direct result of the land the subject of each MLA falling within the moratorium period as a result of the Objectors original EPM 10387 ceasing on 31 December 2005. [97] Mr Lilley SC questioned Mr Hetherington as to the Objector’s actual motives for being an Objector. The following evidence was given:37 You're only here for Kagara because you're a responsible person and you happened to have noticed that Mr De Lacey failed to comply with some aspects of the mining legislation in his application?-- Say that again? 36 See letter from Hetherington’s to the Mining Registrar dated 23 January 2006. 37 T 80 – 81. -- 49 of 127 -- 50 It was quite clear what I said, why do you want it repeated?-- Because I didn't understand the question, is that clear? MR SMITH: Repeat the question. BY MR LILLEY: I'm putting to you that you're only here because as a responsible citizen Kagara and you have noticed that there are some aspects in respect of which Mr De Lacey has failed to comply with the mining legislation?-- You portrayed me as two roles there, as a responsible citizen, as an Objector. I'm not an Objector, I'm here as Kagara under their instructions as a company that's a responsible developer in the region who wants to ensure that things are done properly. And you're not here for any other reason whatsoever?-- No. Only as a responsible citizen to ensure that the Mineral Act is complied with?-- That's correct. … It's perfectly false for you to sit here and say Kagara is here only as a responsible community member making sure that Mr De Lacey complies with the Mining Act isn't it?-- I don't think it is, no. The company has disclosed its interest otherwise but its primary objection is as a landowner." [98] Sometimes, evidence in a case can be more telling for what is said rather than what is not said. Mr Hetherington, as the sole person on behalf of the Objector at the hearing, offered no reason for the Objector's failure to lodge its renewal application prior to 31 December 2005. The only evidence Mr Hetherington gave in this regard related to why he did not lodge the renewal application prior to 31 December 2005 (he did not receive instructions): he did not say what lay behind the Objector's failure to lodge a renewal application for its EPM. [99] Taking the totality of the evidence into account, I am in no doubt that what I am considering in these matters is effectively a contest between mining competitors over the same mining ground. I am also of no doubt that this competition only arose due to the Objector's failure to lodge its renewal application for EPM 10387 prior to 31 December 2005. Due to the lack of evidence produced by the Objector as to the reasons behind its failure to lodge its renewal application, but in light of its own conduct in obtaining prospecting permits; pegging and applying for mining leases during the moratorium period; and again seeking, and ultimately being granted, EPM 15458 for substantially the same land as contained within the expired EPM 10387 on the first available occasion that the moratorium was lifted, I draw the -- 50 of 127 -- 51 inference, applying the rule in Jones v Dunkell38, that the key reason why Mr Hetherington originally drafted such all encompassing objections; sought a strike- out of the MLAs; sought the proactive intervention of the Minister in dismissing the applications via his letter of 13 December 2007; and prosecuted the objections so thoroughly; is to protect, to the greatest extent possible, the Objectors' own mining interest over the subject land of each of the application areas so that the Objector can pursue its own mining interests, if it chooses to do so, at some time in the future. [100] I am also satisfied that Mr Hetherington is fully aware of the Objector’s primary intention to itself explore and, if it sees fit, undertake its own mining operations on the land subject to the MLAs. Insofar as the objector’s evidence via Mr Hetherington attempts to suggest otherwise, it is without credit. John Edward Nethery [101] Mr Nethery holds a Bachelor of Science (Geology). He is a chartered professional geologist and a Fellow of the Australian Institute of Geoscientists, a Fellow of the Australasian of Mining and Metallurgy, a Fellow of the Society of Exploration Geologists and a Member of the Geological Society of Australia. Mr Nethery has a long, rather distinguished career in geology. He resides in Chillagoe and has a detailed working knowledge of the locations and geology of each MLA. [102] Mr Nethery provided affidavit evidence39 and oral evidence in this matter. His affidavit is clear and precise. His evidence was likewise clear and of high credibility. Mr Nethery readily accepted points put to him in cross-examination which did not necessarily assist the Objector. He agreed, for instance, that the industry standard code JORC that he referred to in his affidavit was appropriate for large mining operations, especially those carried out by listed companies with reporting obligations and prospective requirements, and not the industry standard for one or two person operations.40 He readily acknowledged that Mr Sainsbury is an 38 Jones v Dunkell & Anor (1959) 101 CLR 298. 39 Exhibit 37. 40 T 96. -- 51 of 127 -- 52 experienced geologist.41 He agreed that uncertainty is inherent in the mining industry.42 [103] I was highly impressed by the expert evidence of Mr Nethery. Where there is a conflict between Mr Nethery's expert evidence and other evidence, I prefer the evidence of Mr Nethery. In particular, I was impressed with Mr Nethery's evidence regarding mineralisation of the MLAs,43 his evidence regarding economic viability of large scale viz small scale mining operations,44 and his evidence regarding the proposed terms of each MLA.45 Stephen Thornton Jones [104] Mr Jones holds a Bachelor of Engineering in Mining Engineering and has been working in the mining industry as a mining engineer since 1986. For the last 5 years he has been employed by the Objector. [105] Mr Jones produced an affidavit in these proceedings46 and also gave oral evidence. From reading his affidavit evidence, the main thrust of his evidence was expert opinion as to the mining operations proposed by the Applicants. [106] Issues relating to Mr Jones' credibility and expertise, mirror, to a small degree, those faced by Mr Sainsbury with respect to his expert report. This was highlighted during cross-examination when Mr Lilley SC explored Mr Jones' views as to the opportunistic actions that miners may take in pegging mining leases without doing what he considers appropriate exploration first. [107] It is clear from Mr Jones' evidence that the greater proportion of his experience is in what I will loosely refer to as large scale mining.47 In my view, Mr Jones' experience with larger mining operations results in his evidence being more useful for an examination of large scale mining rather than smaller mining operations. This became clear during cross-examination.48 41 T 95. 42 T 95. 43 See T 93 – 95. 44 See T 95. 45 See T 95. 46 Exhibit 31. 47 See T 1117. 48 T 111 – 2. -- 52 of 127 -- 53 [108] An analysis of the mining lease recommendations made by the Land Court since it received jurisdiction for MRA matters in September 2007, together with an analysis of the recommendation of the Land and Resources Tribunal from 2000 to 2007, as well as the recommendations of the Wardens Court prior to 2000, reveal that the great majority of recommendations made the the Minister relate to small scale mining, often operated by a relatively small number of people, and usually without objection. Indeed, the application by Mr De Lacey for MLA 20505 neatly falls into this category in the manner in which it was dealt with by myself in making a recommendation to the Minister.49 [109] Were the evidence of Mr Jones set out above to be accepted as the proper way of preparing for MLAs in all matters across the State, then the vast majority of those recommendations for small mining operations just referred to could indeed not proceed, as more often than not such applications have as their prerequisite tenure nothing more than a prospecting permit. [110] This is not to say that I discount the evidence of Mr Jones as unreliable. That is not the case. However, it is the case that in my view his evidence is to be restricted to MLAs which are large either by reasons of the simple magnitude of the mining operations to be conducted, or because of the environmental impacts of such mining operations.50 [111] Mr Jones' evidence, both in his affidavit and during cross-examination51 is that it is a fair criticism of the Applicants that they have not carried out exploration prior to pegging and making their MLAs, and that such activity is not, to his knowledge, the type of thing that the Objector, his employer, would do. [112] It is somewhat surprising that Mr Jones' only knowledge of the MLA application work undertaken by the Objector during the moratorium period comes from his reading the affidavits of Mr De Lacey and Mr Sainsbury. He says that he has no knowledge from his employer of his employer's activities in that regard, and explains this as being as a result of his office "not working for exploration".52 [113] I am inclined to believe Mr Jones' evidence in this regard. However, in accepting his evidence that he was not aware of the MLA processes being undertaken by the 49 See 2007 QLC 50 For instant, if cyanide is to be used as part of a treatment process. 51 T 111. 52 T 113. -- 53 of 127 -- 54 Objector at the same time as the Applicants, and given that his normal duties relate to the creation of plans of operations etc for mining leases, and further given his expert knowledge of the processes required for properly working up a mining lease and his added experience in working for the Objector, results in the only logical explanation being that the Objector, in seeking its own mining leases during the moratorium period, was doing so simply to lock out certain areas of land from other miners who may seek mining leases over those same areas, with the Objector having no intention whatsoever of seeing those mining leases through the application process on the assumption, as later proved to be correct, that the Objector would again receive an EPM for the relevant area. Ahmad Faridur Rahman [114] Mr Rahman is the manager, Ecoaccess Customer Service Unit with the Environmental Protection Agency, the statutory party in these proceedings. Mr Rahman's evidence comprises a statement in the proceedings,53 as well as oral testimony. [115] Mr Rahman answered all questions clearly and concisely. His answers to questions posed by both Mr Ambrose and Mr Lilley were short and concise. [116] It is clear to me that Mr Rahman understands his statutory duties pursuant to the EP Act and his evidence is consistent with the actions of a diligent officer of the EPA who properly undertakes those duties. [117] I was impressed by Mr Rahman's directness and clear honesty in answering questions. His evidence is both credible and reliable. Some general observations on the MRA and the EP Act [118] 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.54 53 Exhibit 27. 54 Applicants' submissions para 4. -- 54 of 127 -- 55 "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; (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.)" [119] I concur with the principles as set out in the proceeding paragraph. -- 55 of 127 -- 56 The moratorium period [120] In my view, in order to understand the circumstances which occurred at the time of the Applicants' making each of their MLAs, and to properly put into context the evidence of their actions and those of the Objector at that time, it is essential to take into account in great detail the provisions of the MRA relating to the so called "moratorium period". [121] The moratorium period arises as a consequence of the operation of s.135 of the MRA. Section 135 of the MRA provides as follows: "135 No application for exploration permit within 2 months of land ceasing to be subject to exploration permit (1) Upon land, for whatever reason, ceasing to be the subject of an exploration permit, a person is not competent to apply for an exploration permit in respect of any mineral specified in the first mentioned exploration permit in respect of any of that land until the expiration of 2 calendar months following the end of the month in which that cessation occurs. (2) Subsection (1) does not apply to a person applying for a new exploration permit in respect of land over which the person held an exploration permit which the person had surrendered for the purpose of being granted a further exploration permit in respect of the whole or part of that land." [122] I am satisfied on the basis of all the evidence before me that, prior to 31 December 2005, the Objector had held EPM 10387 over all relevant land subject to the MLAs. I am further satisfied that that exploration permit had been renewed over the years and held by other companies in previous times, the effect being that, without the consent of the exploration holder, other miners could not be granted mining leases over the subject area of the EPM for a considerable number of years. [123] The scheme of the MRA with respect to exploration permits is relatively straightforward. Exploration permits are granted for a period not exceeding 5 years.55 Once an exploration permit has been granted, the holder of the exploration permit may seek the renewal of the exploration permit. An application for a renewal of an exploration permit must be made at least 3 months and not more than 6 months before the current term of the exploration permit expires, unless the Minister in a particular case allows for a shorter period prior to the exploration permit expiring.56 55 See s.146 MRA. 56 See s.147 MRA. -- 56 of 127 -- 57 Once an application for renewal of an EPM is made, the holder retains rights under the existing exploration permit until such time as the application is dealt with.57 [124] The facts in this matter clearly demonstrate that an application for renewal of the earlier EPM held by the Objector was not lodged prior to its expiry. Accordingly, the land the subject of the exploration permit entered into the two month moratorium period provided for in s.135 of the MRA. Put in very simple terms, what this section allows is for miners who are competitors of the former exploration permit holder the opportunity to peg and apply for mining leases over the land previously subject to the exploration permit, but the period of time allowed for this is limited to only two months. In short, what can occur is in effect a "gold rush mentality" between competitive miners seeking access to land which may, as is the case here, have effectively been locked up for a lengthy period of time, and which may once more be locked up should the previous exploration permit holder (which is precisely what happened here) or another competitor make application for a fresh EPM. The Objector applied for a fresh EPM on the first available day after the moratorium period ended, and was subsequently granted EPM 15458. [125] I am satisfied that, whatever the reason for the objector failing to renew EPM 10387 on time, it was not the objector’s intention that EPM 10387 expire, and that the objector was desirous of maintaining its interests in the former EPM area. [126] I am further satisfied on the evidence that not only did the Applicants enter into a form of "gold rush mentality", but that the same is certainly true of the Objector. For instance, by letter dated 23 January 2006, the Objector, through Mr Hetherington’s office, forwarded six applications for mining leases to the Mining Registrar, Cairns District Office. These applications were all within the Objector's previous EPM area. This of course was occurring at the same time as the Applicants in these proceedings also lodged their applications. It is also highly noteworthy that, once the Objector was granted EPM 15458, it abandoned the MLAs that it had lodged during the moratorium period. [127] Mr Ambrose SC contends that it is not the Objector who is on trial here; what is the subject of the proceedings is the question as to whether or not the Applicants should each receive a favourable recommendation as regards each of their MLAs. Of 57 See s.147(C) of the MRA. -- 57 of 127 -- 58 course, Mr Ambrose SC is correct in his submission. However, in my view the actions and activities undertaken by the Objector during the moratorium period bear a striking similarity to those of the Applicants, and could themselves, had the Objector's applications proceeded, been subject to much of the same criticism that the Objector makes of the Applicants. I do not say this in criticism of either the Objectors of the Applicants. Rather, the scheme of the MRA in providing for a two month moratorium period essentially creates the atmosphere which results in the hectic MLA pegging and formal application process that are evident here. [128] Furthermore, in my view the resulting outcome is clearly consistent with the legislative intent. The wording of s.135 of the MRA is abundantly clear and not open to misinterpretation. Parliament clearly intended that a two month moratorium period should occur when an EPM expires without a renewal application being lodged. Quite simply, for a period of two months, no person may apply for an exploration permit in those circumstances. However, most importantly, any person may continue to apply for and receive prospecting permits and to peg and make application for mining leases. [129] Quite clearly, the scheme of the MRA in circumstances where s.135 applies, is to give all persons an opportunity to make application for the grant of mining leases within an area previously covered by an exploration permit. It is also a natural consequence of the short timeframe provided for in s.135, together with the fact that an exploration permit cannot be granted during that moratorium period, that any person seeking to peg a mining lease would, of necessity, have a much more restricted ability to explore for minerals than may otherwise be the case. However, any such person would also have the benefit of any public information lodged with the Mining Registrar showing the results of exploration finds in the exploration area.58 [130] In my view, insofar as any of the objections relate to criticism of the Applicants for the haste in which the MLAs have been made, then such criticisms are without foundation. 58 See s.176 of the MRA. -- 58 of 127 -- 59 Economic mineralisation [131] .This issue is clearly relevant to an examination of criteria 269(4)(b) and (c) of the MRA. As Barwick CJ said in Sinclair v Mining Warden at Maryborough & Anor:59 “It was essential that there be material before him quite apart from any objection, which would warrant an affirmative conclusion on the substance of the applications that the recommendations should be made. This, at the least, required that he be satisfied that the areas applied for held mineral, and that no greater area was recommended than was reasonably necessary for the efficient extraction of the mineral of whose presence there was evidence. By so saying, I am not meaning to imply that the evidence as to the presence of mineral will be enough in all cases to warrant a recommendation of acceptance of an application for a mining lease, but at least so much must be evidenced.” [132] For the purpose of making an application under the Act for a mining lease, and indeed for criteria (b) of section 269(4) of the Act, and taking into account what Chief Justice Barwick said as quoted above, it is my view that the land applied for holds minerals. In my view, reference to “economic mineral” is misconceived. What is relevant is whether or not the land holds mineral and, if it does, will there be an acceptable level of development and utilisation of the mineral, given the size and shape of the application and the term of the application. This view is consistent with the decision of the Court of Appeal in Armstrong & Anor v Brown and Anor.60 [133] In many respects, what is contended by the Objector in these MLAs with respect to this aspect is similar to what the Court of Appeal was faced with in Armstrong. As Justice McMurdo61 put it: “The second question concerns what the submissions made for Mfr and Mrs Armstrong in this court and in the Tribunal have referred to as “economic mineralisation”. If the Tribunal was entitled to conclude that the area applied for contained the relevant minerals, Mr and Mrs Armstrong argue that the Tribunal should not have recommended the grant of a lease without being satisfied that those minerals could be mined profitably. Within the various matters required to be considered by the Tribunal according to s 269(4), there is no reference in terms to “economic mineralisation” or profitable mining. But the submission is that it is implicit within paras (b) and (c) of s 269(4) of the Act that the Tribunal must consider this question. Section 269(4) of the Act provides that the Tribunal is obliged to take into account and consider whether: ‘(c) if the land applied for is mineralised there will be an acceptable level of development and utilisation of the mineral resources within the area applied for;’ The submission strongly relies upon statements in Sinclair v Maryborough Mining Warden (1975) 132 CLR 473. Sinclair was a case dealing with an earlier statutory 59 [1975] 132 CLR 473 at 481. 60 [2004] QCA 80. 61 With whom the other members of the Court relevantly agreed. -- 59 of 127 -- 60 regime, but to some extent the statements relied upon are relevant to the operation of s 269. What Sinclair shows is that the Tribunal should not recommend the grant of a mining lease unless the circumstances warrant that recommendation, having regard to the purposes for which the Crown should give a right to mine its minerals. There would be no proper purpose in recommending the grant of a mining lease which was not going to be used for or in relation to any mining. It is relevant for the Tribunal to enquire whether the mining for which the lease is sought is likely to be profitable, because mining is unlikely to occur if it is unlikely to be profitable. The relevance in this way of the likely profitability of mining is effectively recognised by para (c) of s 269(4), which requires the consideration of whether there will be an acceptable level of development and utilisation of the mineral resources. If there is unlikely to be a profit from the mining of the resources, it is unlikely that there would be an acceptable level of development and utilisation of those resources. What the appellants refer to as “economic mineralisation”, is thus a point which is relevant in the consideration of the matters within s 269(4)(c). Accordingly, I agree with the views of Kingham DP in Salmon v Armstrong [2001] QLRT 72, where she said that whilst there is no specific reference in s 269(4) to the “economic viability” of a project, “it is relevant to interpreting the information about mineralisation” and to at least the matters set out in s 269(4)(c).” [134] I apply the reasoning of Justice McMurdo in Armstrong v Brown to each of the MLAs currently under consideration. Are the Applicants conducting exploration or mining? [135] There have been a number of authorities where the Court of Appeal has had to consider whether or not the activities proposed by an applicant for a mining lease actually amount to mining, or whether for the purposes of the MRA, what is proposed should properly be classified as exploration. [136] This question was comprehensively considered by Davies JA in Armstrong & Anor v Miles & Anor62. In that case, the mining lease applicant made it clear on the face of his application that the primary purpose of his MLA, at least in the first instance, was what he called ‘pilot testing operations’, or, in other words, exploration. Davies JA, with whom the other members of the Court agreed, had this to say: “Mr Zillman, who appeared for the appellants, described the question of law as whether the definition of ‘mine’ in s 6A(1)(a) of the Mineral Resources Act should be limited by excluding from its ambit the winning of mineral from a place where it occurs where that is for the purpose of sampling or testing only. He submitted that it should be so limited and that, as the activities proposed by the first respondent were for those purposes only, they were not for the purpose of mining minerals within the meaning of s 234(1)(a). That question arises in the following way. 62 [2002] QCA 504 -- 60 of 127 -- 61 The term “mine” is defined in s 6A(1) to mean ‘to carry on an operation with a view to, or for the purpose of – winning mineral from a place where it occurs; or (a) extracting mineral from its natural state; or (b) disposing of mineral in connection with, or waste substances resulting from, the winning or extraction.’ The section goes on to describe what extracting includes and excludes and what disposing includes. But the focus here is on subsection (1)(a). The term “explore” is defined in the schedule to the Act to mean “take action to determine the existence, quality and quantity of minerals on, in or under land or in the waters or sea above land by - prospecting; using instruments, equipment and techniques appropriate to determine the existence of any mineral; extracting and removing from land for sampling and testing an amount of material, mineral or other substance in each case reasonably necessary to determine its mineral bearing capacity or its properties as an indication of mineralisation; doing anything else prescribed under a regulation.’ In his MLA the applicant answered the question “Why is surface area required?” in the following way: “Pilot testing operations and carry out mining operations for mineral listed.” The minerals were sapphire, gold, zircon and diamond. The term applied for was two years, the reasons for that term said to be that that was the time envisaged to complete testing. The application was accompanied by a statement outlining the applicant’s mining program. It was in the following terms: ‘On grant of lease it is proposed to commence a testing program, supervised by Mr R McMaster (exploration, geologist). This is anticipated to take 1 – 2 years. On completion, any areas within the lease area that have been proven economic will be targets for further lease applications for mining. Samples taken will be of approx 1 m at each test site using a small excavator and trucked to a test facility.’ Some evidence was given in the hearing before Deputy the President which described in more detail the nature of the mining program. Ms Kingham summarized this in the following way: “[8] It is clear from other material tendered by the Applicant and from the evidence he gave at the hearing, that the activities proposed are intended to ascertain the viability of areas for subsequent production. The Applicant stated that if he finds economic deposits he will peg them out and apply for a mining lease or leases to cover the area or areas identified. Further, he stated that none of the area applied for may be economically viable and that this will not be known until the testing is done. -- 61 of 127 -- 62 [9] The activities proposed are excavation of 100 small test slots, 5m long x 1m wide and up to 7m deep scattered over the surface of the lease area. The purpose of the excavations is to ascertain the extent of mineralisation and to identify the most prospective areas. The Applicant asserts this testing program is a proper facet of mining and necessary preliminary aspect of mining.” Mr Zillman did not contend that an activity which came within the meaning of “explore” as defined could not also come within the definition of “mine” as defined. He could hardly have done so in view of the reasoning of the majority of this Court in Gonzo Holdings No 50 Pty Ltd v McKie. In that case the relevant activity carried on was described in the majority judgment in the following terms: “The appellant excavated three costeans or trenches on the land from which it removed material consisting, according to the report of Mr Siemon, of a mixture of mudstone, sandstone clay and quartz. Samples of the material were transported to a property, which appears to be named ‘Currajong’, some 3km to perhaps 6km north of the leased area. There the appellant established what is described as a pilot plant for treating the material to extract alluvial gold from it.” The emphasis is mine. In the course of their reasoning their Honours, referring to a New South Wales case, said that it: “tends to show that the activities being carried out by the appellant on the Karrara land [those were the excavation and removal activities referred to earlier], even though their purpose may have been exploratory, would, on almost any view of it, be considered to be mining of that land. Indeed, the appellants probably had both purposes in mind, which is no doubt a reason why they obtained a mining lease and not merely an exploration permit.” The relevant facts in that case are not substantially different from those here. What was being done there was excavation and removal from the land of material for the purpose, principally it seems, of testing mineral content. Yet their Honours plainly thought that was mining within the meaning of the Mineral Resources Act. The appellants’ argument appears to be this. Although exploration may sometimes also constitute mining, if extraction and removal from land of an amount of material is only for the purpose of sampling or testing within the meaning of paragraph (c) of the definition of “explore” it cannot also constitute mining within the definition of “mine”. Mr Zillman was unable to advance any basis for limiting the meaning of “mine” in the way for which he contended other than by inference from the definition of “explore”. I do not think that is sufficient basis upon which to so limit the meaning of “mine” and that seems to have been the view of the majority in Gonzo. [137] Whilst the arguments put forward by the Objector are in a slightly different context, in my view the same outcome is reached here. The Objector in effect says that, because of the limited amount of exploratory work undertaken on each MLA area, -- 62 of 127 -- 63 the first activities to be undertaken by the Applicants will of necessity be exploration. Like in Armstrong v Miles, the Applicants have not made any attempt to hide the fact that additional exploratory work will be required, to varying degrees depending on the individual MLA, to scope the extent of the mineralisation on each MLA. It is clear from the totality of the evidence produced by the Applicants that they intend to commence mining/detailed exploration of obvious outcrops, and follow areas of mineralisation, and amend their program of mining accordingly. [138] Applying Gonzo Holdings No 50 Pty Ltd v McKie63 and Armstrong v Miles, I am in no doubt that the activities proposed by the Applicants fall within the definition of ‘mining’ under the MRA. Reviewing Decisions of the Mining Registrar [139] An examination of the objections to each MLA shows that the Objector contends that the Applicants have failed to comply with various sections and requirements of the MRA. Specific reference is made by the Objector to ss.241 and 245 of the MRA, amongst others. Section 241 relates to the manner of marking out land proposed to be subject of a mining lease, and s.245 details the process that an application has to follow for the application for grant of a mining lease. Section 245 of the MRA, in particular, is a very important provision. [140] In making its objection, the Objector is clearly asking the Court to consider the provisions of s.269(4)(a) of the MRA which requires the Land Court, when making a recommendation to the Minister, to consider whether "the provisions of this Act have been complied with". At first glance, it would appear that the Land Court has an unfettered ability to look at all of the provisions of the MLA and consider whether or not the applicant has complied with those provisions. However, in my view, that position does not correctly state the responsibilities of the Land Court pursuant to s.269(4)(a). Section 252(1) of the MRA provides as follows: "252 Certificate of application etc. (1) Upon being satisfied that the applicant for the grant of a mining lease is eligible to apply for the mining lease and that the applicant has complied with the requirements of this Act with respect to that application the mining registrar shall prepare a certificate of application for a mining lease in the approved form." 63 [1996] 2QdR 240. -- 63 of 127 -- 64 [141] The Court of Appeal in the case of ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation64 considered the proper interpretation of s.269(4)(a) of the MRA. In this regard, Justice Mullins had this to say:65 "[70] There are difficulties in interpreting section 269(4)(a) of the MRA. The construction arguments based on section 268(1) of the MRA are circular to the extent that the content of section 269(4)(a) is said to depend on the powers of the Tribunal to hear other matters under section 268(1) which itself incorporates the matters raised by section 269(4)(a) of the MRA. [71] The difference in wording between sections 269(4)(a) and 270(1)(a) of the MRA supports the respondent's contentions. On the other hand, the reference to compliance by the applicant with the requirements of the MRA in sections 252(1), 266 and 267(1)(a) respectively in the context must be a reference to Part 7 of the MRA, as in each case all there is for consideration before the mining registrar or Minister is the application made under Part 7 of the MRA. [72] When Part 17 contains extensive provisions setting out the role of the Tribunal under Part 17 in relation to native title issues, the delineation in section 271(1) of the MRA between the recommendation made between the Tribunal under section 269 and any native title issues decision of the Tribunal or substituted decision under division 4 of Part 17 of the MRA is a strong indicator that the section 269 recommendation is primarily a recommendation relating to matters that arise under Part 7 of the MRA. [73] Despite these indications and that there would presumably be little for the Tribunal to consider in relation to compliance with provisions apart from Part 7 of the MRA, there is no reason not to give effect to the words chosen by the Legislature. I therefore conclude that section 269(4)(a) of the MRA requires the Tribunal to consider whether the provisions of the MRA (including section 727(1)) have been complied with. [74] It does not follow, however, that the Tribunal is entitled to call for evidence from the appellant in relation to compliance with section 727(1) of the MRA. The mining registrar has made a decision under section 727(1) of the MRA and it is that information which the Tribunal must act on in considering whether or not to make its recommendation under section 269 of the MRA. There is no power given to the Tribunal in the MRA to review such a decision of the mining registrar." [142] Although Justice Mullins' comments related to an interaction between s.727(1) of the MRA and s.269(4)(a), I am in no doubt that Justice Mullins' comments are equally applicable to s.252(1) of the MRA. The effect of this is therefore that, whilst the Land Court has a statutory responsibility pursuant to s.269(4)(a), to take into account whether or not the provisions of the MRA have been complied with, where such consideration amounts to a review of provisions of the MRA which the Mining Registrar is statutorily required to make a decision on insofar as compliance is 64 [2001] QCA 119. 65 At paras 70 to 74. -- 64 of 127 -- 65 concerned, the MRA does not authorise the Land Court66 to use the powers set out in s.269(4)(a) to go behind, in effect, any relevant decisions made by the Mining Registrar. There are other avenues available for persons aggrieved regarding decisions of an administrative nature made by a Mining Registrar,67 but relying upon s.269(4)(a) to, in effect, review a decision of a Mining Registrar in an objection process, is not one of them. Failure to give notice to owners of occupied land of entry pursuant to parcel prospecting permits [143] I have already examined in detail the legislative provisions relating to notices of entry to Objectors' land in my examination of Mr Hetherington's evidence. [144] Looking at all of the evidence and not just at Mr Hetherington's, there is certainly some doubt as to whether or not the Objector was provided with the requisite notice of entry as required by s.32 of the MRA. [145] In the circumstances of this matter, in my view it is not necessary for me to determine whether or not the required notice was given by the Applicants to the Objector in each circumstance that such notice was required. This is because of the operation of s.35 of the MRA, which provides as follows: "35 Penalty for breach of conditions If the mining registrar considers on reasonable grounds that there has been a breach of any condition of a prospecting permit or of this Act by the holder of the permit or any person purporting to act under the authority of the prospecting permit, the mining registrar may determine that an amount (not exceeding 5 penalty units) fixed by the mining registrar shall be due and owing to the Crown by the holder by way of penalty for that breach." [146] In my view, s.35 of the MRA clearly applies to circumstance where a holder of a prospecting permit may have failed to give the proper notice of entry to a landholder. If that has occurred in this case, then the appropriate course of action is for the Mining Registrar to consider the matter and, if the Mining Registrar is satisfied that a breach has occurred, the Mining Registrar may determine a penalty for any such breach. I have no evidence before me of any such action being taken by the Mining Registrar. 66 Save for those provisions, not relevant here, which allow for a direct appeal or review by the Land Court of a decision of the Mining Registrar 67 Such as judicial review. -- 65 of 127 -- 66 [147] As I have already indicated, I am in absolutely no doubt that the Objector was aware that the Applicants had obtained prospecting permits and were actively 'in the field' pegging MLAs. Even if the Objector did not receive the notice required by s.32 of the MRA68, the Objector has not been prejudiced in any way by any failure, if there was one, on the part of the Applicants. Identification of the Applicants [148] On the evidence, there is no doubt that Mr Sainsbury holds an interest in MLA 20497, MLA 20500, MLA 20502, MLA 20503, MLA 20504, and MLA 20510. It is also clear that, despite holding an interest in each of those MLAs, Mr Sainsbury is not a named applicant for any of those applications. Counsel for both the Objector and the applicant have provided concise written submissions with respect to this aspect. Counsel for the Objector has this to say:69 "8.3 The failure to make Mr Sainsbury an applicant and to spell out his one third interest demonstrates that with respect to all the MLA’s the nomination of who are the owners of the tenements is false. Mr Delacey gave a declaration under the Oaths Act 1876 as to the truth of the matters contained in the applications, including the respective percentage interests of the Applicants. The making of a false declaration is a serious matter. The Applicants and Mr Sainsbury have refused to reveal the reason for failing to include Mr Sainsbury as an applicant, but it is sufficient that on its face it is false for the Court to be satisfied that the Applicants are not fit and proper persons to hold these tenements." [149] Counsel for the Applicants answer these submissions as follows:70 "72. The respondent complains of an alleged breach of s.245(1)(b) in that Mr Sainsbury was not named as an applicant, despite the stated Applicants agreeing to give him a one-third interest in six of the proposed mining leases. Section 245(1) relevantly provides that: "An application for the grant of a mining lease shall – …. (b) specify the name of each applicant; …" 73. There has been no breach of this provision. Mr Sainsbury was not an applicant, and did not need to be included in the application form. There is no requirement for every person with an interest in the proposed mining lease to be mentioned in the form. There is no suggestion that there was anything underhand in the Applicants' conduct. 68 And I specifically make no finding in this regard given the role of the Mining Registrar pursuant to s.35. 69 Written submission para 8.3. 70 At para 72 – 75 of their written submissions. -- 66 of 127 -- 67 74. The notion that Mr De Lacey and Mr Roster were the correct Applicants is fortified by the fact that it was Mr De Lacey (and, in part, Mr Foster): (a) who pegged out the proposed mining leases (s.241(1) requires that this be done by the applicant or someone authorised on the applicant's behalf); (b) whose initials were inscribed on the marking posts in accordance with s.241(5); (c) who executed the required statutory declarations, assuming responsibility for the contents of the applications, and thereby exposing themselves to potential criminal sanctions for perjury; (d) who personally lodged the applications, as required by s.245(1)(m); and (e) on whom the relevant advertising obligations were imposed by s.252B and 252C. 75. The notion that obligations such as these (and the accompanying penalties for non-compliance) apply to anyone with an interest in a proposed mining lease is unsustainable. It is absurd to suggest that Mr Sainsbury could be liable to imprisonment for 12 months for failing to comply with those provisions of the MRA that require an applicant to take certain steps. (FN: Section 412(1) of the MRA provides that a person who fails to comply with any provisions of the Act is liable to a penalty of 200 penalty units, or 12 months' imprisonment, unless another specified penalty is prescribed.) The clear construction of the MRA is that "applicant" means the person stated as such in the application. [150] For completeness, I should also make reference to the Objector's reply submissions which relate to the nature of the interest held by Mr Sainsbury. Counsel for the Objector had this to say:71 "Mr Lilley SC asserted in oral submissions that Mr Delacey held part of his interest in the mining lease applications on trust for Mr Sainsbury. However, this was not the effect of the evidence. Mr Sainsbury refused point blank to explain the nature of any arrangements that he had with the Applicants. Mr Delacey, in the course of his evidence, described matters in rather Delphic terms as being "an arrangement" between the Applicants and Mr Sainsbury. There was no reference at all to any trust." [151] Of course, the complaint made by the Objector pursuant to s.245 of the MRA falls broadly within those matters of compliance which the Mining Registrar is to take into account prior to the issue of a certificate of application pursuant to s.252 of the MRA. Prima facie, therefore, the Mining Registrar has certified that the Applicants have correctly made their MLAs. In this regard, my comments above regarding the ability of the Land Court to review a decision of the Mining Registrar during an objections hearing process are pertinent. However, given the particular nature of this aspect of the objections, I consider it relevant to make some observations regarding 71 Submissions in reply, para 15. -- 67 of 127 -- 68 the failure of Mr Sainsbury to be included as an applicant for the six MLAs referred to in which he holds an interest. [152] In my view, given the scheme of the MRA and the manner in which interests of various Applicants are recorded as part of the application process, there is a clear expectation that all persons or entities who hold an interest in an MLA will be identified as an applicant. Indeed, it has been my experience that it is not uncommon for a large number of entities to be listed as Applicants to a MLA, with all relevant percentage interests that each applicant holds detailed and appropriately recorded. However, that said, a careful evaluation of the MRA is required in order to see if the provisions of the MRA are plain and clear on their face that all persons who hold an interest in a MLA are required to be named as an applicant. [153] To begin with, one difficulty becomes immediately apparent. There are many ways in which a person or entity may hold an interest in a mining lease. A person or entity may be a financial backer of part or all of the mining lease, but content to have no involvement whatsoever in the actual mining operations under the mining lease. A person's interest may be no more than that of a guarantor to others who hold a financial interest in a MLA, or indeed may be the financier72. The possibilities are almost endless. [154] As unsatisfactory as the evidence in the matter at hand may be, the simple fact is that the Court has before it no evidence to identify what form of interest Mr Sainsbury holds in the six relevant MLAs. On my reading of the MRA, I reluctantly agree with the submissions of counsel for the Applicants that there is no specific statutory requirement for Mr Sainsbury to be named as an applicant. I make this finding reluctantly as there is certainly some support, particularly by way of administrative practices of the mining registrars and of numerous Applicants for mining leases, for all persons and entities who hold a direct, tangible interest in an MLA to have such interest recorded on the application, with that person or entity being named as an applicant. There is of course however a clear distinction between the administrative practices adopted by mining registrars and other mining lease Applicants, and the technical requirements of the MRA. 72 Which is able to have its interests in a mining lease protected under a MRA caveat if necessary. -- 68 of 127 -- 69 [155] I can find nothing in the MRA which supports the Objector's contention that all persons with an interest in a MLA are required to be Applicants for the mining lease. The Applicants for the relevant mining leases are Mr De Lacey and Mr Foster respectively, and accordingly the Objector's objection with respect to the failure of Mr Sainsbury to be included as an applicant in the six relevant MLAs cannot be sustained. Advertising [156] I am in no doubt that it is the responsibility of the Applicants to organise for the proper advertising of their MLAs. Public advertising is an important part of the MLA process. It is the means by which the public becomes aware of the application for a mining lease and of the purposes for which the mining lease is sought. In my view, in circumstances where the advertising significantly departs from the application itself; the certificate of application; and/or the certificate of public notice, then the applications are to be read down to include only those relevant matters which are advertised and are supported by the application process. [157] It is clear on the evidence that there are certain discrepancies between details as set out in the various MLAs; the certificates of applications or the certificates of public notice; and the public advertising of same. [158] Specific findings with respect to the advertising of each MLA are dealt with at the end of this recommendation under the separate analysis of each MRA. Proximity of certain MLAs to environmentally sensitive areas and impact on threatened species [159] As noted from the detailed objections made by the Objector with respect to the EP Act, the Objector objects as to all aspects of the EP Act process. However, in reality, there are two key aspects of the environmental objections which demand specific comment. These aspects are the issues arising as a result of the proximity of certain of the MLAs being proximate to environmentally sensitive areas, as well as the impact on threatened species, in particular a threatened bat species and a threatened plant species. -- 69 of 127 -- 70 [160] The position of the Objector is well put by counsel's written submissions73 "SUMMARY OF OBJECTIONS – EAs 6. The applications for environmental authorities should not the subject of recommendations for approval because. 6.1 The applications for MLs 20496, 20497, 20502 and 20510 were in respect of land within two kilometres of a national park (Mungana Caves National Park Lot 146 NPW 693) and could not comply with condition 14 of the Code. 6.2 The applications were all incomplete because although the applicant certified that mining activities would pose a low risk of causing serious environmental harm he failed to disclose that at that time he had not investigated whether this was so and what environmental values the lands the subject of the applications in fact possessed. 6.3 In respect of the other EAs, the draft EAs should not be recommended because the MLA’s to which they relate should not receive a favourable recommendation for reasons already submitted. 6.4 The applications for the EAs are for activities materially different than those disclosed in the public advertisements – for example, the presence or the absence of stock piles, waste dumps and tailings dams. See Exhibit 44 to these submissions. … 8.6 Either the applicant's knew these MLA’s were within 2 kms of the National Park or they were careless of investigating whether this was so or not. If they were careless, it is another demonstration of why the applications were made prematurely. The Applicants were also prepared to certify an ability to comply with conditions when they could not have so known. Section 151(2) EPA sets out what constitutes a "level 2 mining project" and comprises a mining project authorised under an EA is all mining activities that form the project comply with the criteria prescribed under a regulation for mining activities with that type of authority. The EP Regs deal with this in Schedule 1A. If the Applicants always knew that with respect to MLA 20496, MLA 20497, MLA 20502 and MLS 20510 they would need to have different conditions in the EAs to permit mining, they were nevertheless prepared to certify they could comply with the Code. Additionally they were prepared to certify to the Administering Authority that the applications were complete and not misleading when we submit that they were not. When one appreciates that if an amendment to the conditions of the Code has the effect that the EA ceases to be a Code Compliant EA, the applications sought to undermine the proper public notification process where potential Objectors could be properly informed about the activities intended. In these circumstances the Court could be satisfied that the Applicants were not fit and proper persons to hold these mining leases. … 14. It is submitted that the Court ought not be satisfied of the extent of the environmental impact (s.269(4)(j) MRA) because the environmental values have not been assessed. This Court does not know on the evidence before it what activities are to be conducted, with what machinery will be used and most importantly the sensitivity of the receiving environment. The evidence 73 See submissions of the Objector's para 6, 8.6 and 14. -- 70 of 127 -- 71 of the respondent establishes the presence of threatened species of bat and plant as well as the presence of the Mungana Caves. Mr Delacey stated in cross-examination that there will be blasting, but this is to be contrasted with his statements in the EAAs that there would be none: see for example in respect of MLA 20496," [161] Counsel for the Applicants have also simply put their submissions in response to the EP Act objections as follows:74 "Proximity to environmentally sensitive areas 7. This objection applies to MLA20497, 20502, 20510 and (in part) to 20496. 8. The respondent's objection is that: (a) the draft (FN: Although the authority is identified as a draft in the documentary material, s.164 of the EPA provides that a code compliant level 2 authority is taken to have been issued immediately after the application is made. (b) three applications relate to areas wholly within two kilometres of environmentally sensitive areas (national parks), while a fourth relates to an area partly within two kilometres of a national park. 9. The respondent relies on s.391A of the MRA, which relevantly provides: "(1) This section applied if, apart from this section, a person may – (a) decide to grant, assign, vary or renew a mining tenement; or (b) recommend that a mining tenement be granted, assigned, varied or renewed. (2) However, this section does not apply to a decision or recommendation by the Land Court. (3) The decision or recommendation to grant, vary or renew must not be done or made unless a relevant environmental authority has been issued. … (7) In this section – relevant environmental authority means an environmental authority under the Environmental Protection Act for all activities authorised, or to be authorised, under the mining tenement.". 10. This objection does not warrant the rejection of the affected applications: (a) s.391A expressly provides that the section does not apply to a recommendation or decision of the Land Court; (b) the prohibition on mining within two kilometres of an environmentally sensitive area originally appeared in s.6(1)(c) of schedule 1A to the Environmental Protection Regulation 1998. When the applications were filed, s.6(1) relevantly provided that: "(1) The following criteria apply for mining activities allowed, or to be allowed, under an environmental authority (mining lease) - … 74 Applicants' submissions, para 7, 8, 9, 10, 11, 12, 76 and 77. -- 71 of 127 -- 72 (c) the mining activities are not, or will not be, carried out in, or within 2km of, a category A environmentally sensitive area; (d) the mining activities are not, or will not be, carried out in, or within 1km of, a category B environmentally sensitive area;…"; (c) however, s.6(1) was amended on 22 June 2007. (FN: By s.10(2) – (4) of 2007 SL No. 133, which was made on 21 June 2007 and notified in the gazette on 22 June 2007. The latter is the date of commencement (s.32 Statutory Instruments Act 1992). It now provides that: "(1) The following criteria are prescribed for the Act, section 151(1)(a) and (2)(b)(i) for mining activities allowed, or to be allowed, under an environmental authority (mining lease) – … (c) the mining activities are not, or will not be, carried out in a category A environmentally sensitive area; (d) the mining activities are not, or will not be, carried out in a category B environmentally sensitive area;"; (d) the statutory prohibition on mining activities within two kilometres of a national park has now been removed; (e) this legislative change means that the activities proposed by the applicant are now "standard mining activities" within the meaning of that term in the Code of Environmental Compliance for Mining Lease Projects; (FN: See the definition of this term on p. 37 of the Code, which refers to s.151 of the EPA, which (in s.151(2)(a)(i)) refers to the criteria prescribed under a regulation for mining activities under that type of authority. These criteria appear in s.6 of schedule 1A to the Environment Protection Regulation 1998, being the provision amended. (f) it is open for the applicant to apply to amend the EA to remove the condition that incorporates the relevant prohibition. The mechanism for such an amendment application is fairly straightforward. (FN: Section 292(1) and (2)(o) of the EPA permit the administering authority to amend an environmental authority (mining activities) to give effect to an amendment application. Section 238(1) provides that the holder of an environmental authority (mining activities) may, at any time, apply to the administering authority to amend the authority. 11. In these circumstances, there are good prospects of the Applicants obtaining amended EAs for the affected mining leases. 12. Alternatively, there may be no need to amend the EAs, since it is only "relevant standard environmental conditions" that are conditions of the authority. Given that the conditions in issue simply repeated the conditions in the regulation, and given that these conditions have been omitted from the regulation, it is open to the Applicants to argue that the conditions are no longer relevant. … Threatened species 76. The affidavit of Mr Anderson raises an issue of concern in relation to an endangered bat species which may be present on the proposed leases -- 72 of 127 -- 73 areas, and an endangered plant species which may be present on three of the proposed lease areas. 77. The following points may be made in relation to this issue: (a) Mr Anderson does not state that the proposed mining activities would be likely to cause significant harm to an endangered species, so as to contravene the relevant Commonwealth Act. All he does is raise this as a possibility; (b) the concern raised by Mr Anderson is adequately addressed by the evidence of Mr Gilbert, and the issue can be appropriately dealt with by the imposition of a condition along the lines suggested by Mr Gilbert; and (c) that species, if present, is at least 200 metres away from the relevant mining lease. The respondent's own mitigation plans only require a 100 metre buffer between this species and the mining operations." [162] As previously indicated at the outset of these reasons, the Environmental Protection Agency is a statutory party to these proceedings. In matters such as those at hand where significant issues are raised regarding compliance with the EP Act, the assistance that the EPA provides to the Court through their attendance as a statutory party is invaluable. The statutory party made the following submissions regarding the environmental authorities for each MLA75 "2. The objections are ex facie not about any invalidity in the making and determination of the actual applications as lodged as required by the Environmental Protection Act 1994 ("the Act"). In this respect the objections are essentially that the applications should not or could not be for environmental authorities (mining lease) level 2 code compliant mining activity. 3. Notwithstanding that the objections are not in substance about the form or processing of the applications in that the applications are not objected to because of some invalidity in the making and determination of the applications as required by the Act, the evidence of the Statutory Party ("EPA") is to the effect that the applications as lodged were properly made and determined as required by the Act. (FN: Paragraph 3 of Exhibit 28, and s.154(3) of the Act.) Further in respect of the application requirements, for the purposes of s.154(2) of the Act requiring sufficient supporting information, the applications were not for a non-code compliant authority. Thereby the applications being for a code compliant authority, and the applications having complied with s.154(1) of the Act according to the evidence of Mr Rahman, by operation of ss. 154(3)(a) of the Act the applications satisfied the requirements applicable for such applications under the Act. 4. In respect of the objections to the draft EA's and the conditions of the draft EA's, the applications were only for environmental authorities (mining lease) level 2 code compliant mining activity, whereby the draft EA's for those applications are issued by operation of the Act, and also by operation of the Act the conditions of the draft EA's are taken to 75 See para 2 – 7 of the statutory party's submission. -- 73 of 127 -- 74 be all the standard environmental conditions for mining lease projects (FN: paragraph 3 of Exhibit 28, s. 167(2) of the Act.). The evidence in chief of Mr Rahman is that the draft EA's were subject to all the standard environmental conditions for mining lease projects without any amendment, omission or addition to such conditions. 5. Regardless of what the Applicant or any option holder from the Applicant might intend or desire to do on the subject lands by way of mining activities: (a) the Applicant only applied for environmental authorities (mining lease) level 2 code compliant mining activity (FN: Paragraph 3 of Exhibit 28); and (b) the EPA's evidence in chief is that the draft EA's do not allow for any lawful mining activities other than those being level 2 mining activities and complying with the standard environmental conditions for mining lease projects (FN: Paragraph 4 of Exhibit 28.). 6. In the EPA's submission the following evidence is relevant for consideration as to whether the substance of the objections warrants a recommendation that the applications be refused or granted other than on the basis of the draft EA's. (a) The Applicant's evidence in cross examination by the EPA is that they will not carry out any mining activity at any time where to do so would not comply with such an environmental authority and its standard environmental conditions76. (b) The Respondent's evidence by Mr Jones in cross examination by Mr Lilley and the EPA is that it is possible to design and implement a mining plan in order that mining activities operate as level 2 code compliant mining activities. (c) The EPA's evidence in chief is that the draft EA's do not authorise any environmental harm other than as allowed for by the standard environmental conditions for mining lease projects. (d) The EPA's evidence in chief is that the draft EA's do not authorise any adverse affect on any particular protected flora or fauna. (e) The Respondent's evidence by Tim Anderson in cross examination by the EPA was to the effect that it is possible to avoid adverse impact on a bat colony or protected plant species by an appropriate mining plan which may have to preclude mining at a particular location to avoid such an impact. 7. In respect of the matters to be considered for the objections decision provided for by s. 223 of the Act, the EPA makes the following submissions to the effect that the objections do not warrant any of the applications to be refused or granted other than on the basis of the draft EA's. 76 By SL No. 133 of 2007 commenced 22/6/07, s.6 of Schedule 1A of the Environmental Protection Regulation 1998 prescribing the criteria for a level 2 mining project for s.151(2)(b)(i) of the Act was amended by omission of the criterion that the mining activities are not, or will not be, carried out within 2km of a category A environmentally sensitive area such as a national park. -- 74 of 127 -- 75 (a) The application documents were only for environmental authorities (mining lease) level 2 code compliant mining activity, and the evidence of Mr Rahman is that those application documents complied with s. 154(1) of the Act and thereby were received by the EPA as satisfying the application requirements for that type of environmental authority application (FN: paragraph 3 of Exhibit 28, and s.154(3) of the Act does not specify any application requirements by way of supporting information in addition to the requirements of s. 154(1).). In this respect in re-examination, Mr Rahman confirmed that the application requirements of s.154(1).). (b) In respect of any relevant Environmental Protection Policy ("EPP), there was no evidence adduced for the objections decision hearing to the effect that an EPP requirement warrants any of the applications to be refused or granted other than on the basis of the draft EA's. In this respect the Respondent withdrew this aspect of its objections (FN: Exhibit 25, volume 4 tab 8 paragraphs 2.). (c) In respect of the standard criteria (FN: "Standard criteria" is defined in the Schedule 3 of the Act.), no evidence was adduced for the objections decision hearing to the effect that contrary to the standard environmental conditions, mining on the subject land will necessarily cause unlawful environmental harm to the receiving environment, or that those mining activities will not utilise best practice environmental management as would be required to comply with those conditions. (d) There was no evidence adduced for the objections decision hearing that the applications relate to mining activities in a wild river area. (e) In respect of each current objection, the EPA refers to its submissions in paragraphs 2 to 6 herein. (f) There was no evidence adduced for the objections decision hearing that any adverse suitability report (FN: A "suitability report" is provided for by ss. 559, 560 of the Act.) was obtained for any of the applications which report would warrant an application to be refused or granted other than on the basis of the draft EA for the application. (g) In relation to the status of any application under the Mineral Resources Act for each relevant mining tenement, Mr Rahman's evidence is that the Applicant was eligible to make each of the environmental authority applications given that when those applications were made the Applicant was also an applicant for a mining lease under the Mineral Resources Act 1989 in respect of each of the environmental authority applications." [163] For completeness, I should also refer to the reply submissions of the Objector to the submissions made by the EPA. Counsel for the Objector had this to say:77 77 Reply submissions of Objector paras 1 – 4. -- 75 of 127 -- 76 "1. In respect of sub-paragraphs 6(a) and (b) of the EPA's submissions, the respondent says that the Applicants would not, in any event, be able to comply with the standard environmental conditions in respect of those MLA’s within 2 kilometres of the national parks except by conducting no activities of any nature on those lands. 2. In respect of sub-paragraph 7(a) of the EPA's submissions, it is apparent from the various forms of application for environmental authority (FN: See, for example in respect of MLA 20496, exhibit 10, document 3, page 3.) that the applicant is on the form required to certify that the proposed mining activities have "a low risk of serious environmental harm …". 3. In respect of sub-paragraph 7(c) of the EPA's submissions, it is said that no evidence was adduced for the Objectors to the effect that mining on the subject lands will "necessarily" cause unlawful environmental harm. However, this overlooks the respondent's case on this issue. Given the absence of adequate information from the Applicants concerning the activities to be carried out on these proposed mining lease areas, the respondent submits that it is impossible for the Court to proceed on the basis that unlawful environmental harm to the receiving environment will not be caused. There has been no proper assessment by the Applicants of the receiving environment. 4. Finally, the respondent makes it clear, as it does in paragraph 34 of its principal submissions, that it is not being critical of the EPA in issuing the draft environmental authorities. The Court, however, has a very different task. Whilst it may be sufficient for the EPA to proceed on the basis of the certifications given by the Applicants, it is for this Court to actually assess whether, having regard to the statutory considerations, an environmental authority ought to issue. For the reasons set out in the principal submission, the respondent submits that they ought no." [164] I note that a number of the MLAs are located within two kilometres of an environmentally sensitive area, being a National Park. Despite the submissions made by the Applicants that that issue is now of little relevance due to a change in the EPA's requirements as to mining leases location in the proximity to environmentally sensitive areas, nonetheless, it is appropriate to consider the draft environmental authorities for each MLA in their proposed form, in accordance with the standard conditions. [165] I am satisfied that with respect to each MLA which is wholly located within two kilometres of an environmentally sensitive area that it is not possible for the Applicants, should their mining leases be granted, to undertake any mining activity at all on the subject land of each such mining lease as any such activity would be in breach of condition 14 of the Code. I am not satisfied that the conducting of desktop studies alone is sufficient to meet the requirements of the MRA. -- 76 of 127 -- 77 [166] Furthermore, I am in no doubt that the Applicants were aware at the time of making their applications for mining leases that fall wholly within two kilometres of an environmentally sensitive area that they could never undertake mining activities on the said leases pursuant to a standard environmental authority. In my view, the Applicants have been deliberately misleading in stating on their environmental authority applications that they are able to comply with the standard criteria. It follows that the statutory party has issued the draft environmental authorities for the MLAs contained wholly within two kilometres of a national park on a false premise, having been mislead by the Applicants. [167] In my view, it is not appropriate for a standard environmental authority to be granted with respect to MLA 20497, MLA 20502, and MLA 20510 as each of those applications are wholly contained within two kilometres of a national park. However, as MLA 20496 is only partly contained within two kilometres of a national park, mining activity can proceed on so much of the MLA area as falls outside of the two kilometre limit. [168] As regards threatened species, I have dealt with certain aspects of the expert evidence in this regard earlier in these reasons. I am in no doubt that threatened bat and plant species may exist within areas that will be impacted, either directly or indirectly, by some or all of the MLAs. [169] I am not satisfied that the Applicants were aware of the possibility of threatened plant species being impacted by their MLAs at the time of making their applications for their environmental authorities, although I am satisfied that, as experienced miners, they would have been aware of the possibility that their mining activities may impact upon threatened plant species. However I am in absolutely no doubt that the Applicants were very much aware of the presence of threatened bat species within the general vicinity of the MLAs, and in close proximity to certain of the MLAs in particular. [170] I join with counsel for the Objector in not criticising the officers of the EPA for the manner in which they have gone about their duties as required by the EP Act. However, it does not necessarily follow that I accept all of the submissions of the statutory party. [171] As shown earlier when I considered the overlying principles of the EP Act in attempting to balance sustainable development whilst protecting environmental -- 77 of 127 -- 78 values, the maintenance of ecologically sustainable development is a core requirement of the EP Act. Furthermore, the retention of s.269(4)(j), which requires the Court to take into account whether there will be any adverse environmental impact caused by the mining operations and, if so the extent thereof, must be considered. Section 269(4)(j) was retained in the MRA despite the transferral of core environmental conditioning matters to the EPA. I agree with the submissions made by counsel for the Objector that the Court must be satisfied that inappropriate environmental harm will not be caused by the mining operations, taking into account the principles of ecologically sustainable development. [172] In order to fully understand the requirements embedded into the EP Act to ensure that mining activities are environmentally sustainable and appropriate, in my view reference must be made to the precautionary principle. The precautionary principle [173] 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 environmental 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.” [174] “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 . .. . .” -- 78 of 127 -- 79 [175] 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.”" [176] 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:78 “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.” [177] 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 78 National Strategy for Ecologically Sustainable Development, December 1992, p. 2. -- 79 of 127 -- 80 certainty should not be used as a reason for postponing measures to prevent environmental degradation.”79 Applying the precautionary principle – absence of any scientific reports [178] I am in no doubt that the likely existence of threatened bat and plant species in the general locality of each MLA require a precautionary approach to be adopted by the Court. It is accordingly essential that appropriate baseline studies80 be undertaken by the Applicants prior to the commencement of ANY mining activities on each of the MLAs. [179] I am satisfied that, in the circumstances of these particular MLAs, it is appropriate to recommend that each MLA (provided that all other elements under consideration are satisfactory) be granted prior to the Applicants undertaking the baseline studies, provided that each MLA contain a special condition that no actual mining activity may be undertaken on the land the subject of each MLA until such time as the EPA is satisfied that baseline studies have not only been completed, but that strategies have been put in place to ensure that mining activities will not significantly adversely affect any threatened species identified by the baseline studies. I recommend to the Honourable the Minister for Mines NATURAL RESOURCES, MINES AND ENERGY AND MINISTER FOR TRADE accordingly. [180] I allow the Applicant until 4pm 19 June 2009 to file and serve draft special conditions to the Draft Environmental Authority consistent with paragraphs 178 and 179 hereof. [181] Apart from MLA 20488, I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, their suggested special conditions); and [182] Apart from MLA 20488, I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. [183] Apart from MLA 20488, should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. 79 Definition, “precautionary principle”, Butterworths Environmental Management and Law Dictionary. 80 Of the type referred to in paragraphs 8-11 of Mr Gilbert’s affidavit -- 80 of 127 -- 81 Section 269(4) MRA Criteria for MLA 20488 [184] Taking into account all of the evidence and findings set out above, I now turn to a specific consideration of MLA 20488. Section 269(4)(a) – Have the provisions of the Act been complied with? [185] The applicants for MLA 20488 are Ralph De Lacey and Stuart Valentine Foster. On 6 September 2007, 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.81 I note that the Application is over a non- exclusive tenure82. I also note that the Mareeba Shire Council, by letters dated 21 September and 23 October 2007, offered no objection to the application provided that the Applicants comply with certain undertakings given to Council. [186] As previously discussed, although the MLA was subject to extensive objections by the Objector at the hearing, the Objector subsequently withdrew all objections to the grant of this MLA. Accordingly, I do not take into account for the purposes of this MLA the Objector’s objection or evidence with respect thereto. However, I do take into account the evidence led by the Applicants. Specifically, on the basis of the Applicants evidence alone, in my view the special conditions referred to in paragraphs 178 and 179 above should be made notwithstanding the withdrawal of the Objector’s objections. [187] There are inconsistencies between the MLA and the Certificates of Application and Public Notice, although what was subsequently publicly advertised by the applicants was consistent with the application. The inconsistencies are clearly set out in the following table prepared by the objector: 81 See s. 252 of the Act. 82 I also note that this application is subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth). -- 81 of 127 -- 82 -- 82 of 127 -- 83 [188] In my view it is appropriate that the mining lease be granted for all of the minerals and purposes as set out in the MLA. I am not satisfied that the omission of reference in the Certificates to concentrating plant, stockpiling, or waste dumps has prejudiced the interests of any person. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [189] For all of the reasons already discussed, I am satisfied that the land applied for is mineralised. The Application is in a known 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? [190] 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? [191] The material before me appears to indicate a MLA of an appropriate size and shape in light of the proposed further exploration and mining operations. Section 269(4)(e) – Is the term sought appropriate? [192] 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? [193] The material indicates that the Applicants have the financial and technical capabilities to carry on the mining operations. The Applicants have many years previous mining experience. I am satisfied that the requirements of this criterion are met. -- 83 of 127 -- 84 Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [194] 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. 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? [195] The Applicants held PP21003 and PP21004. I have already discussed the impact on the former Objector and EPM holder. 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? [196] 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: [197] For the reasons already discussed, in my view the MLA should be subject to special conditions consistent with paragraphs 178 and 179 of this recommendation. Section 269(4)(k) – Will the public right and interest be prejudiced? [198] Provided that the special conditions consistent with paragraphs 178 and 179 are made, in my view issues which may otherwise be of concern to the public right and interest will be adequately addressed. -- 84 of 127 -- 85 Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [199] 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? [200] The materials show that the project is for the extraction of a potentially valuable resource. Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, I am satisfied that the proposed mining operation is an appropriate land use. RECOMMENDATION – MLA 20488 [201] Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to Right to Negotiate 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 20488 be granted to the Applicants, for the purposes and term sought by the Applicants. Section 269(4) MRA Criteria for MLA 20496 [202] Taking into account all of the evidence and findings set out above, I now turn to a specific consideration of MLA 20496. Section 269(4)(a) – Have the provisions of the Act been complied with? [203] The applicants for MLA 20496 are Ralph De Lacey and Stuart Valentine Foster. On 6 September 2007, the Mining Registrar Mareeba issued a Certificate of Application. As previously indicated, 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.83 I note 83 See s. 252 of the Act. -- 85 of 127 -- 86 that the Application is over non-exclusive tenure84. I also note that the Mareeba Shire Council, by letters dated 24 March 2006 and 21 September 2007, offered no objection to the application provided that the Applicants do not prohibit the movement of stock through Lot 45 CP 851407 Reserve (R14). [204] For completeness, I am not satisfied on the facts provided to me that Lot 3 on C 153432 falls within the meaning of ‘reserve’ as defined in the MRA85 [205] There are inconsistencies between the MLA and the Certificates of Application and Public Notice, and what was subsequently publicly advertised by the applicants. The inconsistencies are clearly set out in the following table prepared by the objector: 84 I also note that this application is subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth). 85 See Applicants submissions, paragraphs 52 and 53 -- 86 of 127 -- 87 [206] In my view it is appropriate that the MLA only be granted for those minerals and purposes which received public notification in the newspaper, apart from Manganese ore which was not included in the original application. It follows that the mining -- 87 of 127 -- 88 lease should be granted for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [207] For all of the reasons already discussed, I am satisfied that the land applied for is mineralised. The Application is in a known 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? [208] 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. [209] As noted previously in this recommendation, the Applicant’s evidence is most unsatisfactory as to whether or not this MLA is to be mined as a stand alone project or as part of a combined project with MLA 20505. 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? [210] Apart from issues relating to part of the MLA being within two kilometres of an environmentally sensitive area, the material before me otherwise appears to indicate an MLA of an appropriate size and shape in light of the proposed mining operation. Section 269(4)(e) – Is the term sought appropriate? [211] The term sought for this mining lease is 25 years, which I consider appropriate. -- 88 of 127 -- 89 Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [212] The material indicates that the Applicants have the financial and technical capabilities to carry on the mining operations. The Applicants have many years previous 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? [213] 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. 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? [214] The Applicants held PP21004, PP21020, PP21022 and PP21024. I have already discussed the impact on the Objector. 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? [215] 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: [216] For the reasons already discussed, in my view the MLA should be subject to special conditions consistent with paragraphs 178 and 179 of this recommendation. -- 89 of 127 -- 90 [217] Further, as part of the application area lies within two kilometres of an environmentally sensitive area, and the Applicants falsely certified that they could comply with the standard environmental conditions in circumstances where they knew that they could not comply with condition 14 of the Code for that part of the application area within two kilometres of the environmentally sensitive area, the Applicants are not permitted to conduct any mining activities with the affected area of the MLA. Section 269(4)(k) – Will the public right and interest be prejudiced? [218] Provided that the special conditions consistent with paragraphs 178 and 179 are made, and provided that the Applicants do not prohibit the movement of stock through Lot 45 CP 851407 Reserve (R14), 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? [219] Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, and as the Applicants are not permitted to conduct any mining activities within two kilometres of an environmentally sensitive area, I am of the view that, despite the unsatisfactory nature of some of the Applicants evidence, on balance this application should not 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? [220] The materials show that the project is for the extraction of a potentially valuable resource. Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, and as the Applicants are not permitted to conduct any mining activities within two kilometres of an environmentally sensitive area, I am satisfied that the proposed mining operation is an appropriate land use for the balance area of the land. -- 90 of 127 -- 91 RECOMMENDATION – MLA 20496 [221] Provided that special conditions consistent with paragraphs 178 and 179 are made, together with special conditions that the Applicants do not prohibit the movement of stock through Lot 45 CP 851407 Reserve (R14) , and subject to Right to Negotiate 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 20496 be granted to the Applicants, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicants Section 269(4) MRA criteria MLA 20497 [222] Taking into account all of the evidence and findings set out above, I now turn to a specific consideration of MLA 20497. Section 269(4)(a) – Have the provisions of the Act been complied with? [223] The applicants for MLA 20497 are Ralph De Lacey and Stuart Valentine Foster. On 6 September 2007, the Mining Registrar Mareeba issued a Certificate of Application. As previously indicated, 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.86 I note that the Application is over non-exclusive tenure87. [224] There are inconsistencies between the MLA and the Certificates of Application and Public Notice, and what was subsequently publicly advertised by the applicants. The inconsistencies are clearly set out in the following table prepared by the objector: 86 See s. 252 of the Act. 87 I also note that this application is subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth). -- 91 of 127 -- 92 -- 92 of 127 -- 93 [225] In my view it is appropriate that the MLA only be granted for those minerals and purposes which received public notification in the newspaper, apart from Manganese ore which was not included in the original application. It follows that the mining lease should be granted for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [226] For all of the reasons already discussed, I am satisfied that the land applied for is mineralised. The Application is in a known 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? [227] 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. [228] As noted previously in this recommendation, the Applicant’s evidence is most unsatisfactory as to whether or not this MLA is to be mined as a stand alone project or as part of a combined project with MLA 20510. 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? [229] The material before me appears to indicate a MLA of an appropriate size and shape in light of the proposed mining operation. Section 269(4)(e) – Is the term sought appropriate? [230] The term sought for this mining lease is 25 years, which I consider appropriate. -- 93 of 127 -- 94 Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [231] The material indicates that the Applicants have the financial and technical capabilities to carry on the mining operations. The Applicants have many years previous 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? [232] 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. 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? [233] The Applicants held PP21021. I have already discussed the impact on the Objector. 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? [234] 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: [235] For the reasons already discussed, in my view the MLA should be subject to special conditions consistent with paragraphs 178 and 179 of this recommendation. [236] Further, as the application area lies wholly within two kilometres of an environmentally sensitive area, and the Applicants falsely certified that they could comply with the standard environmental conditions in circumstances where they knew that they could not comply with condition 14 of the Code, it would appear that I have little discretion other than to recommend that the MLA not be granted, or to -- 94 of 127 -- 95 recommend a special condition that the Applicants not be permitted to conduct any mining activities on the MLA (which would defeat the purpose of holding a mining lease), unless in these particular circumstances it is appropriate that pursuant to s 222(1)(b) of the EP Act that the draft environmental authority be amended. [237] As I have not had the benefit of submissions from the parties as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions in this regard (incorporating, as appropriate, suggested special conditions); I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. Section 269(4)(k) – Will the public right and interest be prejudiced? [238] Provided that the special conditions consistent with paragraphs 178 and 179 are made, and subject to my comments regarding condition 14, 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? [239] Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, and subject to my comments regarding condition 14, I am of the view that, despite the unsatisfactory nature of some of the Applicants evidence, on balance this application should not 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? [240] The materials show that the project is for the extraction of a potentially valuable resource. Provided that special conditions consistent with paragraphs 178 and 179 -- 95 of 127 -- 96 are applied to this MLA, and subject to my comments regarding condition 14, I am satisfied that the proposed mining operation is an appropriate land use for the balance area of the land. ORDERS – MLA 20497 [241] I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; [242] I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and [243] I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. [244] Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. Section 269(4) MRA criteria MLA 20500 [245] Taking into account all of the evidence and findings set out above, I now turn to a specific consideration of MLA 20500. Section 269(4)(a) – Have the provisions of the Act been complied with? [246] The applicant for MLA 20500 is Ralph De Lacey. On 6 September 2007, the Mining Registrar Mareeba issued a Certificate of Application. As previously indicated, the Mining Registrar can only issue the Certificate if satisfied that the Applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the Application.88 I note that the Application is over non- exclusive tenure89. 88 See s. 252 of the Act. 89 I also note that this application is subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth). -- 96 of 127 -- 97 [247] There are inconsistencies between the MLA, the Certificates of Application and Public Notice, and what was subsequently publicly advertised by the Applicant. The inconsistencies are clearly set out in the following table prepared by the objector: -- 97 of 127 -- 98 -- 98 of 127 -- 99 [248] In my view it is appropriate that the MLA only be granted for those minerals and purposes which received public notification in the newspaper, apart from Manganese ore which was not included in the original application. It follows that the mining lease should be granted for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [249] For all of the reasons already discussed, I am satisfied that the land applied for is mineralised. The Application is in a known 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? [250] The material before me reveals the Applicant’s 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? [251] The material before me appears to indicate an MLA of an appropriate size and shape in light of the proposed mining operation. Section 269(4)(e) – Is the term sought appropriate? [252] 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? [253] The material indicates that the Applicant has the financial and technical capabilities to carry on the mining operations. The Applicant has many years previous mining experience. I am satisfied that the requirements of this criterion are met. -- 99 of 127 -- 100 Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [254] The Applicant’s evidence is that no enforcement action has been taken against him. The Mining Registrar’s Report is consistent with what the Applicant says. 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? [255] The Applicant held PP21023, PP21021 and PP21004. I have already discussed the impact on the Objector. 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? [256] Apart from my environmental comments below and an issue regarding access over a railway line, 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: [257] For the reasons already discussed, in my view the MLA should be subject to special conditions consistent with paragraphs 178 and 179 of this recommendation. Section 269(4)(k) – Will the public right and interest be prejudiced? [258] Provided that the special conditions consistent with paragraphs 178 and 179 are made, in my view issues which may otherwise be of concern to the public right and interest will be adequately addressed, apart from access over a railway line. [259] It is clear from the MLA that the Applicant is seeking access over, in part, a railway line. It appears to be common ground between the parties that the Applicant has not obtained the consent of the Department of Transport regarding access over the railway. -- 100 of 127 -- 101 [260] On the state of the evidence currently before me, I do not know if the railway line crossing is in fact a significant issue, or if the railway is even still in operation. I also do not know if the access, including the railway crossing, is along an existing track, or will be a new construction. [261] Clearly, the interaction of mining access and railways is potentially an important issue, with potentially important public safety issues. [262] In the circumstances, I am prepared to recommend that the MLA proceed to grant, subject to the Applicant obtaining the consent of the Department of Transport prior to the matter being considered by the Governor in Council and the Governor in Council exercising the discretion pursuant to s 238(1)(a) of the MRA. However, if the Applicant is unable to obtain the consent of the Department of Transport, then I recommend that, prior to the MLA proceeding to grant, that the Applicant be required to lodge a variation of access not involving a railway crossing. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [263] Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, and subject to resolution of access isues, I am of the view that, despite the unsatisfactory nature of some of the Applicant’s evidence, on balance this application should not 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? [264] The materials show that the project is for the extraction of a potentially valuable resource. Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, and subject to resolution of access issues, I am satisfied that the proposed mining operation is an appropriate land use for the land. RECOMMENDATION – MLA 20500 [265] Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to the Applicant obtaining the consent of the Department of Transport prior to the matter being considered by the Governor in Council and the Governor in Council exercising the discretion pursuant to s 238(1)(a) of the MRA or alternatively, -- 101 of 127 -- 102 if the Applicant is unable to obtain the consent of the Department of Transport, then I recommend that, prior to the MLA proceeding to grant, that the Applicant be required to lodge a variation of access not involving a railway crossing, and subject to Right to Negotiate 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 20503 be granted to the Applicant, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicant Section 269(4) MRA criteria MLA 20502 [266] Taking into account all of the evidence and findings set out above, I now turn to a specific consideration of MLA 20502. Section 269(4)(a) – Have the provisions of the Act been complied with? [267] The applicant for MLA 20502 is Ralph De Lacey. On 6 September 2007, the Mining Registrar Mareeba issued a Certificate of Application. As previously indicated, the Mining Registrar can only issue the Certificate if satisfied that the Applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the Application.90 I note that the Application is over non- exclusive tenure91. [268] There are inconsistencies between the MLA, the Certificates of Application and Public Notice, and what was subsequently publicly advertised by the Applicant. The inconsistencies are clearly set out in the following table prepared by the objector: 90 See s. 252 of the Act. 91 I also note that this application is subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth). -- 102 of 127 -- 103 -- 103 of 127 -- 104 [269] In my view it is appropriate that the MLA only be granted for those minerals and purposes which received public notification in the newspaper, apart from Manganese ore which was not included in the original application. It follows that the mining lease should be granted for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [270] For all of the reasons already discussed, I am satisfied that the land applied for is mineralised. The Application is in a known 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? [271] The material before me reveals the Applicant’s 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? [272] The material before me appears to indicate a MLA of an appropriate size and shape in light of the proposed mining operation. Section 269(4)(e) – Is the term sought appropriate? [273] The term sought for this mining lease is 21 years, which I consider appropriate. -- 104 of 127 -- 105 Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [274] The material indicates that the Applicant has the financial and technical capabilities to carry on the mining operations. The Applicant has many years previous 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? [275] The Applicant’s evidence is that no enforcement action has been taken against him. The Mining Registrar’s Report is consistent with what the Applicant says. 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? [276] The Applicant held PP21021. I have already discussed the impact on the Objector. 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? [277] 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: [278] For the reasons already discussed, in my view the MLA should be subject to special conditions consistent with paragraphs 178 and 179 of this recommendation. [279] Further, as the application area lies wholly within two kilometres of an environmentally sensitive area, and the Applicant falsely certified that he could comply with the standard environmental conditions in circumstances where he knew that he could not comply with condition 14 of the Code, it would appear that I have little discretion other than to recommend that the MLA not be granted, or to -- 105 of 127 -- 106 recommend a special condition that the Applicant not be permitted to conduct any mining activities on the MLA (which would defeat the purpose of holding a mining lease), unless in these particular circumstances it is appropriate that pursuant to s 222(1)(b) of the EP Act that the draft environmental authority be amended. [280] As I have not had the benefit of submissions from the parties as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions in this regard (incorporating, as appropriate, suggested special conditions); I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. Section 269(4)(k) – Will the public right and interest be prejudiced? [281] Provided that the special conditions consistent with paragraphs 178 and 179 are made, and subject to my comments regarding condition 14, 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? [282] Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, and subject to my comments regarding condition 14, I am of the view that, despite the unsatisfactory nature of some of the Applicants evidence, on balance this application should not be refused. -- 106 of 127 -- 107 Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [283] The materials show that the project is for the extraction of a potentially valuable resource. Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, and subject to my comments regarding condition 14, I am satisfied that the proposed mining operation is an appropriate land use. ORDERS – MLA 20502 [284] I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; [285] I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and [286] I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. [287] Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. Section 269(4) MRA criteria MLA 20503 [288] Taking into account all of the evidence and findings set out above, I now turn to a specific consideration of MLA 20503. -- 107 of 127 -- 108 Section 269(4)(a) – Have the provisions of the Act been complied with? [289] The applicant for MLA 20503 is Ralph De Lacey. On 6 September 2007, the Mining Registrar Mareeba issued a Certificate of Application. As previously indicated, the Mining Registrar can only issue the Certificate if satisfied that the Applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the Application.92 I note that the Application is over non- exclusive tenure93. [290] There are inconsistencies between the MLA, the Certificates of Application and Public Notice, and what was subsequently publicly advertised by the Applicant. The inconsistencies are clearly set out in the following table prepared by the objector: 92 See s. 252 of the Act. 93 I also note that this application is subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth). -- 108 of 127 -- 109 -- 109 of 127 -- 110 [291] In my view it is appropriate that the MLA only be granted for those minerals and purposes which received public notification in the newspaper, apart from Manganese ore which was not included in the original application. It follows that the mining lease should be granted for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [292] For all of the reasons already discussed, I am satisfied that the land applied for is mineralised. The Application is in a known 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? [293] The material before me reveals the Applicant’s 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? [294] The material before me appears to indicate an MLA of an appropriate size and shape in light of the proposed mining operation. Section 269(4)(e) – Is the term sought appropriate? [295] The term sought for this mining lease is 21 years, which I consider appropriate. -- 110 of 127 -- 111 Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [296] The material indicates that the Applicant has the financial and technical capabilities to carry on the mining operations. The Applicant has many years previous 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? [297] The Applicant’s evidence is that no enforcement action has been taken against him. The Mining Registrar’s Report is consistent with what the Applicant says. 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? [298] The Applicant held PP21021 and PP21004. I have already discussed the impact on the Objector. 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? [299] 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: [300] For the reasons already discussed, in my view the MLA should be subject to special conditions consistent with paragraphs 178 and 179 of this recommendation. -- 111 of 127 -- 112 Section 269(4)(k) – Will the public right and interest be prejudiced? [301] Provided that the special conditions consistent with paragraphs 178 and 179 are made, 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? [302] Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, I am of the view that, despite the unsatisfactory nature of some of the Applicant’s evidence, on balance this application should not 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? [303] The materials show that the project is for the extraction of a potentially valuable resource. Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, I am satisfied that the proposed mining operation is an appropriate land use for the land. RECOMMENDATION – MLA 20503 [304] Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to Right to Negotiate 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 20503 be granted to the Applicant, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicant -- 112 of 127 -- 113 Section 269(4) MRA criteria MLA 20504 [305] Taking into account all of the evidence and findings set out above, I now turn to a specific consideration of MLA 20510. Section 269(4)(a) – Have the provisions of the Act been complied with? [306] The applicant for MLA 20510 is Ralph De Lacey. On 6 September 2007, the Mining Registrar Mareeba issued a Certificate of Application. As previously indicated, the Mining Registrar can only issue the Certificate if satisfied that the Applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the Application.94 I note that the Application is over non- exclusive tenure95. [307] There are inconsistencies between the MLA, the Certificates of Application and Public Notice, and what was subsequently publicly advertised by the Applicant. The inconsistencies are clearly set out in the following table prepared by the objector: 94 See s. 252 of the Act. 95 I also note that this application is subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth). -- 113 of 127 -- 114 -- 114 of 127 -- 115 [308] In my view it is appropriate that the MLA only be granted for those minerals and purposes which received public notification in the newspaper, apart from Manganese ore which was not included in the original application. It follows that the mining lease should be granted for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [309] For all of the reasons already discussed, I am satisfied that the land applied for is mineralised. The Application is in a known 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? [310] The material before me reveals the Applicant’s 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? [311] The material before me appears to indicate an MLA of an appropriate size and shape in light of the proposed mining operation. Section 269(4)(e) – Is the term sought appropriate? [312] The term sought for this mining lease is 21 years, which I consider appropriate. -- 115 of 127 -- 116 Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [313] The material indicates that the Applicant has the financial and technical capabilities to carry on the mining operations. The Applicant has many years previous 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? [314] The Applicant’s evidence is that no enforcement action has been taken against him. The Mining Registrar’s Report is consistent with what the Applicant says. 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? [315] The Applicant held PP21021. I have already discussed the impact on the Objector. 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? [316] 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: [317] For the reasons already discussed, in my view the MLA should be subject to special conditions consistent with paragraphs 178 and 179 of this recommendation. -- 116 of 127 -- 117 Section 269(4)(k) – Will the public right and interest be prejudiced? [318] Provided that the special conditions consistent with paragraphs 178 and 179 are made, 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? [319] Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, I am of the view that, despite the unsatisfactory nature of some of the Applicant’s evidence, on balance this application should not 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? [320] The materials show that the project is for the extraction of a potentially valuable resource. Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, I am satisfied that the proposed mining operation is an appropriate land use for the land. RECOMMENDATION – MLA 20504 [321] Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to Right to Negotiate 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 20504 be granted to the Applicant, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicant -- 117 of 127 -- 118 Section 269(4) MRA criteria MLA 20510 [322] Taking into account all of the evidence and findings set out above, I now turn to a specific consideration of MLA 20510. Section 269(4)(a) – Have the provisions of the Act been complied with? [323] The applicant for MLA 20510 is Ralph De Lacey. On 6 September 2007, the Mining Registrar Mareeba issued a Certificate of Application. As previously indicated, the Mining Registrar can only issue the Certificate if satisfied that the Applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the Application.96 I note that the Application is over non- exclusive tenure97. [324] There are inconsistencies between the MLA, the Certificates of Application and Public Notice, and what was subsequently publicly advertised by the Applicant. The inconsistencies are clearly set out in the following table prepared by the objector: 96 See s. 252 of the Act. 97 I also note that this application is subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth). -- 118 of 127 -- 119 -- 119 of 127 -- 120 [325] In my view it is appropriate that the MLA only be granted for those minerals and purposes which received public notification in the newspaper, apart from Manganese ore which was not included in the original application. It follows that the mining lease should be granted for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [326] For all of the reasons already discussed, I am satisfied that the land applied for is mineralised. The Application is in a known 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? [327] The material before me reveals the Applicant’s proposed mining operations and program, and shows the potential for appropriate development and utilisation of the mineral resources within the area applied for. [328] As noted previously in this recommendation, the Applicant’s evidence is most unsatisfactory as to whether or not this MLA is to be mined as a stand alone project or as part of a combined project with MLA 20497. 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? [329] The material before me appears to indicate a MLA of an appropriate size and shape in light of the proposed mining operation. Section 269(4)(e) – Is the term sought appropriate? [330] The term sought for this mining lease is 21 years, which I consider appropriate. -- 120 of 127 -- 121 Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [331] The material indicates that the Applicant has the financial and technical capabilities to carry on the mining operations. The Applicant has many years previous 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? [332] The Applicant’s evidence is that no enforcement action has been taken against him. The Mining Registrar’s Report is consistent with what the Applicant says. 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? [333] The Applicant held PP21021. I have already discussed the impact on the Objector. 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? [334] 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: [335] For the reasons already discussed, in my view the MLA should be subject to special conditions consistent with paragraphs 178 and 179 of this recommendation. [336] Further, as the application area lies wholly within two kilometres of an environmentally sensitive area, and the Applicant falsely certified that he could comply with the standard environmental conditions in circumstances where he knew that he could not comply with condition 14 of the Code, it would appear that I have little discretion other than to recommend that the MLA not be granted, or to recommend a special condition that the Applicant not be permitted to conduct any -- 121 of 127 -- 122 mining activities on the MLA (which would defeat the purpose of holding a mining lease), unless in these particular circumstances it is appropriate that pursuant to s 222(1)(b) of the EP Act that the draft environmental authority be amended. [337] As I have not had the benefit of submissions from the parties as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions in this regard (incorporating, as appropriate, suggested special conditions); I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. Section 269(4)(k) – Will the public right and interest be prejudiced? [338] Provided that the special conditions consistent with paragraphs 178 and 179 are made, and subject to my comments regarding condition 14, 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? [339] Provided that special conditions consistent with paragraphs 178 and 179 are applied to this MLA, and subject to my comments regarding condition 14, I am of the view that, despite the unsatisfactory nature of some of the Applicants evidence, on balance this application should not 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? [340] The materials show that the project is for the extraction of a potentially valuable resource. Provided that special conditions consistent with paragraphs 178 and 179 -- 122 of 127 -- 123 are applied to this MLA, and subject to my comments regarding condition 14, I am satisfied that the proposed mining operation is an appropriate land use. ORDERS – MLA 20510 [341] I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; [342] I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and [343] I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. [344] Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. ORDERS WITH RESPECT TO EACH MLA 1. I allow the Applicant until 4pm 19 June 2009 to file and serve draft special conditions to the Draft Environmental Authority consistent with paragraphs 178 and 179 hereof. 2. Apart from MLA 20488, I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, their suggested special conditions); and 3. Apart from MLA 20488, I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 4. Apart from MLA 20488, should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. RECOMMENDATION – MLA 20488 5. Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth), I recommend to The Honourable the Minister for Natural -- 123 of 127 -- 124 Resources, Mines and Energy and Minister for Trade that ML 20488 be granted to the Applicants, for the purposes and term sought by the Applicants. RECOMMENDATION – MLA 20496 6. Provided that special conditions consistent with paragraphs 178 and 179 are made, together with special conditions that the Applicants do not prohibit the movement of stock through Lot 45 CP 851407 Reserve (R14) , and subject to Right to Negotiate 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 20496 be granted to the Applicants, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicants ORDERS – MLA 20496 7. I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; 8. I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and 9. I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 10. Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. ORDERS – MLA 20497 11. I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; 12. I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and -- 124 of 127 -- 125 13. I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 14. Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. RECOMMENDATION – MLA 20500 15. Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to the Applicant obtaining the consent of the Department of Transport prior to the matter being considered by the Governor in Council and the Governor in Council exercising the discretion pursuant to s 238(1)(a) of the MRA or alternatively, if the Applicant is unable to obtain the consent of the Department of Transport, then I recommend that, prior to the MLA proceeding to grant, that the Applicant be required to lodge a variation of access not involving a railway crossing, and subject to Right to Negotiate 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 20503 be granted to the Applicant, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicant ORDERS – MLA 20502 16. I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; 17. I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and 18. I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 19. Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. -- 125 of 127 -- 126 RECOMMENDATION – MLA 20503 20. Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to Right to Negotiate 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 20503 be granted to the Applicant, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicant RECOMMENDATION – MLA 20504 21. Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to Right to Negotiate 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 20504 be granted to the Applicant, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant/mill site, tungsten/wolfram/scheelite, workshop/machinery/storage, water supply and zinc ore, for the term sought by the Applicant ORDERS – MLA 20510 22. I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted; 23. I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and -- 126 of 127 -- 127 24. I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply. 25. Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009. PA SMITH MEMBER OF THE LAND COURT -- 127 of 127 --