BHP Coal Pty Ltd & Ors, Re [2004] QLRT 151

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Coal Pty Ltd & Ors [2004] QLRT 151 PARTIES: Re Application for Mining Lease No. 70325 by BHP Coal Pty Ltd and Others FILE NO: AML161/04 PROCEEDING: Application for mining lease DELIVERED ON: 10 December 2004 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBERS: Koppenol P ORDER/S: 1. Tribunal constituted by President. (at [2]) 2. Hearing dispensed with. (at [3]) 3. Recommendation made that the Mining Lease 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), 270, 392 Environmental Protection Act 1994 COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A Application [1] This is an application by BHP Coal Pty Ltd and Others (the applicants)1 under s. 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 38ha area of land situated 4km east of Dysart for mining infrastructure purposes. The application 1 The applicants are BHP Coal Pty Ltd (40.75%), QCT Mining Pty Ltd (15.78%), Mitsubishi Development Pty Ltd (15.53%), QCT Investment Pty Ltd (12.00%), BHP Queensland Coal Investments Pty Ltd (8.50%), QCT Resources Pty Ltd (6.69%) and Umal Consolidated Pty Ltd (0.75%). -- 1 of 4 -- was lodged with the mining registrar for the Emerald mining district on 14 January 2004. No objections to the application were lodged during the public objection period which ended on 7 October 2004. Constitution of Tribunal [2] The applicants 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 44 of the Land and Resources Tribunal Act 1999, I direct that the Tribunal be constituted for this matter by me. Dispensing with hearing [3] The applicants also requested that this application be heard by the Tribunal on the papers and without an oral hearing. Under s 270 of the Act, the Tribunal has a discretion to dispense with the hearing if 4 specified criteria have been satisfied. Because (for reasons which will appear) I am satisfied that (a) the provisions of part 7 (Mining Leases) of the Act have been complied with, (b) there were no objections to the grant of the application, (c) the owner of the affected restricted land (a small dam and water pipeline) has consented, and (d) no reserve land is involved, I regard this an appropriate case to dispense with a hearing. I order accordingly. Tribunal’s statutory function [4] In cases such as this, the Tribunal’s statutory function under s. 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 applicants 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; 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 -- 2 of 4 -- (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 (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 14 January 2004, the mining registrar issued a certificate of application. Pursuant to s. 252(1) of the Act, the mining registrar can only do so 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. The applicants have lodged with the mining registrar statutory declarations certifying compliance with the statutory requirements for notifying the application. 2 I note that the land the subject of this application comprises freehold land (an extinguishing tenure). In any event, this application was lodged after 31 March 2003—such that the native title provisions of the Act do not apply. 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 various infrastructure works (water management, haul roads, access roads and spoil piles) to support a new pit to be mined within the applicants’ existing Norwich Park Coal Mine. I am satisfied that the purposes for which the lease is sought are appropriate. [9] Section 269(4)(c): As the land applied for is not mineralised, this factor is not applicable. [10] Section 269(4)(d): The applicants said that the area and shape applied for was to cover the proposed area required for the haul road to link sections of the applicants’ existing ML1782. There is no evidence to indicate that the size and shape is not appropriate. [11] Section 269(4)(e): A term of 21 years is sought. That term is in accordance with the mine’s long-term plan. I am satisfied that the term sought is appropriate. [12] Section 269(4)(f): The applicants are very experienced mining companies with significant existing coal mining operations in Queensland. I am satisfied that the applicants have the requisite financial and technical capabilities. [13] Section 269(4)(g): The applicants have never had a mining show cause notice or any mining tenure cancelled, penalty or conviction under the Act. 2 Due to an error, the applicants did not notify the relevant local government (Broadsound Shire Council) until 20 October 2004. However the council was not prejudiced by the error. See affidavit of Clare Michelle Jones filed 8 December 2004. In the circumstances, I am satisfied that this is an appropriate case for the application of section 392 (Substantial compliance with Act may be accepted as compliance) of the Act and I order accordingly. -- 3 of 4 -- [14] Section 269(4)(h): There are 3 underlying exploration permit tenures which are not held by the applicants. However there is no evidence that any disadvantage to their rights may result from the grant of the subject mining lease. [15] Section 269(4)(i): The current land use is for cattle grazing and farming. It is apparently otherwise capable of being used for mining and related purposes only. The subject activities will be carried out in accordance with the draft environmental authority issued under the Environmental Protection Act 1994. The land will subsequently be appropriately rehabilitated. I am satisfied that the proposed operations conform with sound land use management. [16] Section 269(4)(j): The subject infrastructure works will be carried out in accordance with the draft environmental authority (mining activities) issued by the Environmental Protection Agency. The applicants 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 works concerned 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 the Mining Lease be granted for the purpose, area and term applied for. -- 4 of 4 --