Australian Jade Exploration Pty Limited & Ors, Re [2006] QLRT 78

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Australian Jade Exploration Pty Limited & Ors [2006] QLRT 78 PARTIES: Australian Jade Exploration Pty Limited (Applicant) - and – Barada Barna and Kabalbara Yetimarla People, Durambal People #2, Koinjmal People and State of Queensland (Respondents) FILE NO/S: NTML40/03 PROCEEDING: Application for mining lease and native title issues decision DELIVERED ON: 1 August 2006 DELIVERED AT: Brisbane HEARING DATE: Heard on the Papers MEMBER/S: Smith DP ORDER/S: 1. The Tribunal’s native title issues decision is that Mining Lease No. 80098 may be granted for the purpose and term applied for, subject to the contract conditions set out in Attachment “A” to the submission of the State of Queensland dated 1 March 2006. (at [28]) CATCHWORDS: MINING – MINING LEASE APPLICATION – NATIVE TITLE PARTIES – NATIVE TITLE ISSUES DECISION Mineral Resources Act 1989, ss 245, 252, 269, 422, 669, 675, 706-722 Land and Resources Tribunal Act 1999, s. 44(2) Re Fazzari [2005] QLRT 74, applied COUNSEL: N/A SOLICITOR/S: Ms. L. O’Neill (Department of Natural Resources, Mines and Water) for the State of Queensland -- 1 of 5 -- Mr. B.P. Beston, Legal Officer Gurang Land Council (Aboriginal Corporation) for Barada Barna and Kabalbara Yetimarla People, Durambal People #2 AGENTS: Mr. H. Beckers for the Applicant Mrs. D. Moore for the Koinjmal People [1] SMITH DP: On 12 October 2001 Australian Jade Exploration Pty Limited1 (hereafter referred to as “the Applicant”) lodged Mining Lease Application No 80098 with the Mining Registrar, Rockhampton District. The Application was lodged pursuant to s. 245 of the Mineral Resources Act 1989 (hereafter referred to as “the Act”) for the purpose of mining for chrysoprase. No objections were duly lodged to the Mining Lease Application. [2] As this application was made on 12 October 2001 and includes non-exclusive land2 in the underlying tenures, the native title provisions of the Act apply. The Application was referred to the Tribunal on 30 April 2003 pursuant to s. 669 of the Act. Constitution of Tribunal [3] The Tribunal was constituted by a panel of Deputy President Kingham and myself. As a consequence of Deputy President Kingham’s recent appointment as a District Court Judge, the Tribunal is now constituted by myself alone.3 [4] In light of the referral under s. 669 of the Act, the Tribunal is required to make 3 decisions: a recommendation under s. 269(4); a native title issues decision under s. 675(1); and a compensation trust decision.4 Native Title Parties [5] The native title parties are Barada Barna and Kabalbara Yetimarla People, Durambal People #2, and the Koinjmal People. The State of Queensland is also a party. Hearing on the Papers [6] All parties have requested that this matter be heard on the papers. I have considered all the provisions of the Act and all relevant material and consider that it is appropriate that the matter be heard on the papers. Section 269(4) recommendation [7] In taking account of and considering the criteria specified in s. 269(4) of the Act, I have relied on the Additional Information and Statutory Declaration of Heinz Beckers on behalf of the Applicant dated 30 June 2004. I have also relied upon 1 Although Marlborough Nickel Pty Ltd was originally also an Applicant, it transferred its 0.5% interest to Australian Jade Exploration Pty Limited on 17 March 2006. 2 See s. 422 of the Act. 3 See s. 44(2)(a) Land and Resources Tribunal Act 1999. 4 See s. 675(2) and ss 706-722 of the Act. -- 2 of 5 -- the other material lodged by the Applicant with the Department of Natural Resources, Mines and Water and provided by the Mining Registrar to this Tribunal and the Mining Registrar’s Report in relation to this Applicant. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account in making my recommendation. Section 269(4)(a) – Have the provisions of the Act been complied with? [8] On 30 October 2001 the Mining Registrar, Rockhampton District, issued a Certificate of Application. Pursuant to s. 252(1) of the Act, the Mining Registrar can only issue a Certificate of Application 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. In my opinion, there is sufficient evidence of compliance with the provisions of the Act in respect to this Application. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [9] The Applicant’s evidence is that the land applied for is mineralised. Old drilling programmes confirm the existence of chrysoprase. Accordingly, I am satisfied that the land applied for is mineralised. Section 269(4)(c) – If the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for? [10] The material before me reveals the Applicant’s proposed mining operations and program, and shows 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? [11] The material before me appears to indicate a mining lease application of an appropriate size and shape in light of the proposed mining operation. Section 269(4)(e) – Is the term sought appropriate? [12] The term sought is 25 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? [13] Material provided to the Tribunal indicates that the Applicant has access to the financial and technical capabilities required to carry on the mining operations. Accordingly, I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [14] With respect to this criterion, I also rely on the evidence relating to s. 269(4)(f) above. The Applicant’s evidence is that no enforcement action has been taken -- 3 of 5 -- against it. 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? [15] The Applicant held EPM 11195.5 There is nothing in the material 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? [16] 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: [17] A draft environmental authority was publicly advertised and received no objection. There is no evidence to suggest that the environmental impacts will not be adequately dealt with by compliance with the conditions of the environmental authority. Section 269(4)(k) – Will the public right and interest be prejudiced? [18] The material before me does not reveal any area of concern for the public right and interest. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [19] There was no evidence before me that indicated any good reason why this Application should 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? [20] The materials show that the project is for the extraction of a potentially valuable resource in accordance with the environmental processes. The Application is without objection. I am satisfied that the proposed mining operation is an appropriate land use. Recommendation [21] With respect to s. 269(4) considerations I would recommend that Mining Lease No. 80098 be granted over the entire application area for the purpose and term sought by the Applicant. 5 With Marlborough Nickel Pty Ltd. -- 4 of 5 -- Native Title Issues Decision [22] The State of Queensland has submitted than an appropriate native title issues decision is that the mining lease be granted subject to contract conditions annexed to its submissions. In this regard, this matter closely resembles that of Re Fazzari [2005] QLRT 74, except with respect to the response of the native title parties. [23] Unlike Re Fazzari, where the native title parties did not respond to the State’s submissions, this matter is the result of a mediated agreement. The native title parties have formally advised the Tribunal of their consent to the contract conditions, and all native title signatories have signed the agreement, save one. That person, Vivienne Roma, has been provided will all relevant material by the Tribunal6 and asked to respond but has failed to do so. In my view, her failure to respond should not stand in the way of the clear intent of the native title parties in supporting the contract conditions. [24] The Applicant in its submissions agrees with the proposed contract conditions. [25] Consistent with the approach taken by the Tribunal in Re Fazzari and taking into account all the native title provisions of the Act, I consider the contract conditions attached to the State of Queensland’s submissions marked “A”7 appropriate in the present case. Compensation Trust Decision [26] In Fazzari, the Tribunal found that, as the contract conditions included the payment of compensation, the relevant clause of the contract conditions became a condition of the mining lease.8 [27] In the matter under consideration, the contract conditions are titled “negotiation and compensation agreement for mining lease 80098. Agreement under Part 17 and Part 18 of the Mineral Resources Act 1989.” In my view, clauses 12 and 13 are clearly intended to operate as a requirement for compassion, although the word “payment” is used instead of “compensation”. Again, following Re Fazzari, I consider that S. 711 of the Act applies to make it a condition of the mining lease that the leaseholder must comply with those clauses. Orders [28] Taking all relevant evidence and provisions of the Act into account, the Tribunal’s native title issues decision is that Mining Lease No. 80098 may be granted for the purpose and term applied for, subject to the contract conditions set out in Attachment “A” to the submissions of the State of Queensland dated 1 March 2006. 6 See LRT letter dated 12 April 2006 to Vivienne Roma. 7 Attachment to submissions of State of Queensland dated 1 March 2006. 8 See Re Fazzari @ para 5 and s. 711 of the Act. -- 5 of 5 --