Bradford and Elliot, Re [2004] QLRT 155

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re R.A. Bradford & M.J. Elliot [2004] QLRT 155 PARTIES: In the Matter of Mining Lease No. 70239 – Application by Rueben Alan Bradford and Maurice James Elliot for Mining Lease FILE NO: AML188/2004 PROCEEDING: Application for mining lease DELIVERED ON: 10 December 2004 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Kingham DP ORDER/S: 1. Hearing dispensed with. (at [2]) 2. Recommendation made that the Mining Lease is granted over the entire application area, for the purpose and for the term sought by the Applicants. (at [18]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION – INDIGENOUS LAND USE AGREEMENT Mineral Resources Act 1989, ss 245, 252, 252A, 252C, 269(4), 270(1), 420 Native Title Act 1993 (Cth), ss 24CA to 24CL, 24 EB COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A [1] This is an application by Rueben Alan Bradford and Maurice James Elliot under s.245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 24.06ha area of land approximately 9.8km north of Rubyvale in the Peak Downs Shire for the purpose of mining gold, sapphire and zircon. The Application was lodged with the Mining Registrar for the Emerald mining district on 17 July 2000. No objections to the Application were lodged during the public objection period, which ended on 25 -- 1 of 5 -- November 2004. The underlying tenures are a special lease and a timber reserve. [2] A number of events have affected this Application: • On 24 February 2004, the National Native Title Tribunal registered an Indigenous Land Use Agreement (ILUA) which covers the area applied for.1 That ILUA includes the parties’ consent to the grant of a mining tenure to a person who elects to be bound by the agreement by executing a “Deed by Miner” set out in the ILUA2 and who complies with requirements set out in clause 9.1. They include certain cultural heritage inspection procedures being undertaken before the grant is made. The Mining Registrar has informed the Tribunal that the Applicants have signed the relevant document and paid the required compensation and inspection fees. It is not clear whether all pre-grant conditions have been fulfilled. In certain circumstances, this Tribunal has dispute resolution jurisdiction conferred by the ILUA. There is no dispute currently before the Tribunal. • The ILUA provides for the lease to be granted subject to certain post-grant conditions;3 • As it appears the Applicants have executed a “Deed by Miner” under the ILUA,4 the native title provisions of the Act do not apply to this Application.5 Request to dispense with a hearing - Section 270: [3] I may dispense with a hearing if satisfied as to matters specified in s.270(1). For reasons that follow at paragraph [5], I am satisfied that the provisions of part 7 of the Act have been complied with in respect of the Application. There are no objections to this Application. It appears there is no restricted land in the area applied for. The area applied for includes a timber reserve and the owner has no objection to the lease being granted. I am satisfied that the preconditions to exercising my discretion to dispense with a hearing have been fulfilled. The material supplied by the Applicants and the Mining Registrar addresses each of the criteria that I must consider in making my recommendation on this Application. I am satisfied that there is sufficient information before me to enable me to properly consider this matter. Accordingly, I order that a hearing of this Application be dispensed with. Section 269(4) criteria: [4] In taking account of and considering the criteria specified in s.269(4), I have relied upon the Additional Information and Statutory Declaration of Rueben Bradford sworn on behalf of the Applicants on 29 November 2004. I have also relied upon the other material lodged by the Applicants with the Department of Natural Resources and Mines and provided by the Mining Registrar to this Tribunal and the Mining Registrar’s Report in relation to this Application. These reasons refer to the salient points, but not to all the relevant evidence, that I have taken into account in making my recommendation. 1 The Central Queensland Gemfields ILUA –QI 01/47 s. 24CA to s. 24CL NTA. 2 ILUA clause 9 & Sch 2. 3 Section 24EB NTA and ILUA clauses 14.2, 14.5 & 17.5. 4 ILUA clause 9 & Sch 2. 5 Section 420. -- 2 of 5 -- Section 269(4)(a) - Have the provisions of the Act been complied with? [5] On 13 October 2004, the Mining Registrar issued a Certificate of Public Notice.6 The Applicants lodged a Declaration of Compliance with the requirements for notifying the Application, within the time required.7 The Mining Registrar issued a Certificate of Application on 4 October 2004, which he can only do 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.8 Section 269(4)(b) - Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [6] The Application seeks the grant of a mining lease for the purpose of mining sapphire, zircon and gold. Both Applicants have substantial mining experience. Mr Bradford has been mining sapphire for some 30 years. A large area of that applied for has been previously mined. It is in the vicinity of other leases. I am satisfied that the area is generally 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? [7] Mr Bradford has experience in mining sapphire for some 30 years. The Applicants intend to commence mining activities as soon as the lease is granted. The lease will be divided into half hectare grid lots and one grid will be worked and restored before the next is opened up. There is no evidence to suggest that there will not be an acceptable level of development and utilisation of the mineral resource in the area. 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? [8] The Applicants determined the boundaries of the lease by the area showing potential. The Applicants have sought a mining lease over the entire surface area applied for. There is no evidence to indicate the size and shape is not appropriate. Section 269(4)(e) - Is the term sought appropriate? [9] The Applicants seek a term of 10 years. This is consistent with the terms of the ILUA. The Applicants consider it is sufficient to enable the whole area to be mined. There is no evidence to suggest that the term sought is not appropriate. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [10] The Applicants have stated that they have sufficient resources to undertake the proposed operation. Between them, they have the necessary equipment to undertake the proposed operation. Mr Elliot holds other mining leases in the Emerald mining district. Mr Bradford has recently completed working two leases and restoring two others. There is no evidence to suggest that the Applicants do not have the necessary 6 Section 252A. 7 Section 252C. 8 Section 252(1). -- 3 of 5 -- financial and technical resources. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [11] There is no evidence to suggest Mr Bradford’s past performance has not been satisfactory. Whilst Mr Elliot has previously had two mining claims cancelled for failure to lodge security deposits, that has been the subject of consideration by the Tribunal on other applications by Mr Elliot and found not to warrant a negative recommendation.9 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? [12] There are no other holders of or applicants for exploration tenures that would be affected by the grant. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [13] The land is used for grazing and as a timber reserve. The landholders did not object to the application. I also take into account the terms of the environmental authority referred to below in making this recommendation. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [14] The draft environmental authority was issued on 7 June 2004. It requires the Applicants to comply with the standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects. They include a requirement not to carry out activities in the timber reserve without consulting the EPA. The EPA can, if it considers it necessary, impose additional conditions for such work. The authority was publicly advertised and there was no objection to its grant or to its terms. There is no evidence to suggest that the environmental impacts will not be appropriately dealt with by compliance with the conditions of the Code. Section 269(4)(k) – Will the public right and interest be prejudiced? [15] There appears to be no public infrastructure on the area applied for. There was no evidence before me that indicated the public right and interest would be prejudiced. The provision of the environmental authority dealing with the timber reserve appears to be appropriate to protect the public interest in the area. It is significant that there was no objection to this Application. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [16] There was no evidence before me that indicated any good reason why this 9 Re M.J. Elliot [2004] QLRT 113 117. Re M.J. Elliot [2004] QLRT 114 118. Re M.J. Elliot [2004] QLRT 115 119. Re M.J. Elliot [2004] QLRT 116 120. -- 4 of 5 -- 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? [17] On the basis of the evidence considered in relation to criteria (i), (j), (k) and (l), I consider the proposed Activity is an appropriate land use. Recommendation: [18] Taking into account all the evidence before me and, in particular, that evidence referred to above, I recommend to the Honourable the Minister for Natural Resources and Mines that the Mining Lease is granted over the entire application area, for the purpose and for the term sought by the Applicants. -- 5 of 5 --