Cindric, Re [2005] QLRT 115

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Cindric [2005] QLRT 115 PARTIES: Re Application for Mining Lease No. 95505 by Mirko Cindric FILE NO/S: AML132/05 PROCEEDING: Application for mining lease DELIVERED ON: 29 August 2005 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers MEMBER: Koppenol P ORDER/S: 1. Tribunal constituted by President. (at [2]) 2. Recommendation made that subject to compliance with the pre-grant conditions of the ILUA, Application for Mining Lease No. 95505 applied for by the Applicant be granted for the purpose, area and term applied for. (at [20]) CATCHWORDS: MINING – MINING LEASE APPLICATION – RECOMMENDATION Land and Resources Tribunal Act 1999, ss 39, 40 Mineral Resources Act 1989, ss 245, 252(1), 269(4) Environmental Protection Act 1994 Native Title Act 1993 (Cth) COUNSEL: N/A SOLICITORS: N/A Application [1] This is an application by Mirko Cindric (the applicant) under section 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 8.4559ha area of land situated at West Canadians, Vergemont for the mining of opal. The application was lodged with the mining registrar for the Winton mining district on 16 June 2005. No objections to the application were lodged during the public objection period which ended on 12 August 2005. -- 1 of 4 -- Constitution of Tribunal [2] The applicant requested that a single presiding member of the Tribunal hear the matter. I am agreeable to that course and in accordance with ss 39 and 40 of the Land and Resources Tribunal Act 1999, I direct that the Tribunal be constituted for this matter by me. Hearing on the papers [3] The applicant requested that this application be heard by the Tribunal on the papers and without an oral hearing. That procedure is appropriate in the present case. Tribunal’s statutory function [4] In cases such as this, the Tribunal’s statutory function under section 269 of the Act is to take into account and consider a number of prescribed factors and then to make a recommendation to the Minister for Natural Resources and Mines about whether the application should be granted or rejected. In doing so, I have considered all of the material that was provided to the Tribunal by the applicant and the mining registrar. However these reasons only refer to such of the evidence as is relevant or necessary for my decision. Section 269(4) recommendation [5] Section 269(4) provides as follows: “269 Tribunal’s recommendation on hearing … (4) The tribunal, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether— (a) the provisions of this Act have been complied with; and (b) the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and (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; and (d) the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to— (i) the matters mentioned in paragraphs (b) and (c); and (ii) the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and (e) the term sought is appropriate; and (f) the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and (g) the past performance of the applicant has been satisfactory; and (h) any disadvantage may result to the rights of— (i) holders of existing exploration permits or mineral development licences; or (ii) existing applicants for exploration permits or mineral development licences; and (i) the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and (j) there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and (k) the public right and interest will be prejudiced; and (l) any good reason has been shown for a refusal to grant the mining lease; and -- 2 of 4 -- (m) taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use. … .” [6] I will deal in turn with the factors set out in section 269(4). [7] Section 269(4)(a): On 16 June 2005, the mining registrar issued a certificate of application. Pursuant to section 252(1) of the Act, the mining registrar can only do so 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. The applicant has lodged with the mining registrar statutory declarations certifying compliance with the statutory requirements for notifying the application. I note the land the subject of this application comprises land (a pastoral holding) where native title may exist. However an indigenous land use agreement (ILUA) under the Native Title Act 1993 (Cth) and a deed of grantee party signed by the applicant enables this application to be granted subject to prescribed native title conditions. No restricted land or reserve land is involved. I am satisfied that the provisions of the Act have been complied with. [8] Section 269(4)(b): The application seeks the grant of a mining lease for the open cut mining of opal. The applicant said that he knew that the proposed mining lease area was mineralised because of old diggings and surface trace. I am satisfied that the area is mineralised. [9] Section 269(4)(c): The proposed mine will be an open cut operation. An excavator and bulldozer will be used for this purpose. The area will be progressively mined, backfilled and rehabilitated. I am satisfied that there will be an acceptable level of development and utilisation of the mineral resources within the area applied for. [10] Section 269(4)(d): The application said that the area and shape applied for was to cover the area showing potential. There is no evidence to indicate that the size and shape is not appropriate. [11] Section 269(4)(e): A term of 10 years is sought. That term is envisaged to fully mine the application area and to comply with the conditions of the ILUA. I am satisfied that the term sought is appropriate. [12] Section 269(4)(f): The applicant has 25 years experience in opal mining and has held other opal mining leases in the area. He has sworn that he and his partner (who presumably will be assisting with mining operations) have the necessary equipment and sufficient financial resources to undertake mining as planned. There is no evidence that the applicant does not have the requisite financial and technical capabilities. [13] Section 269(4)(g): Ten years ago, 2 of the applicant’s mining leases were cancelled due to non-payment of rent. They had previously been assigned but apparently the assignee failed to lodge the transfer papers. That is no obstacle to the applicant’s being granted ML 95505 (which is the subject of the present application). [14] Section 269(4)(h): The evidence indicates that there are no such underlying tenures. -- 3 of 4 -- [15] Section 269(4)(i): The current land use is for low intensity grazing. It is apparently otherwise capable of being used for opal mining purposes only. The mining activities will be carried out in accordance with the draft environmental authority issued under the Environmental Protection Act 1994. After mining, the land will be appropriately rehabilitated. I am satisfied that the proposed mining operations conform with sound land use management. [16] Section 269(4)(j): The mining activities will be carried out in accordance with the draft environmental authority (mining activities) issued by the Environmental Protection Agency. The applicant must comply with the various environmental conditions set out in that document. There were no objections to the issue of that authority. I am not satisfied that there will be such an environmental impact caused by the proposed mining operations as to warrant an unfavourable recommendation in the present application. [17] Section 269(4)(k): There was no evidence before me that indicated that the public right and interest would be prejudiced. [18] Section 269(4)(l): There was no evidence before me that indicated any good reason why this application should be refused. [19] Section 269(4)(m): On the basis of the evidence and other material referred to above, I consider that the proposed activity is an appropriate land use. Recommendation [20] Taking into account all of the evidence and other material before me and in particular that referred to above, I recommend to the Honourable the Minister for Natural Resources and Mines that subject to compliance with the pre-grant conditions of the ILUA, Application for Mining Lease No. 95505, applied for by the applicant, be granted for the purpose, area and term applied for. -- 4 of 4 --