Elliot, Re [2004] QLRT 119

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re M.J. Elliot [2004] QLRT 119 PARTIES: In the Matter of Mining Lease No. 70242 – Application by Maurice James Elliot for Mining Lease FILE NO: AML138/2004 PROCEEDING: Application for mining lease DELIVERED ON: 15 October 2004 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Kingham DP ORDER/S: 1. Hearing dispensed with. (at [3]) 2. Recommendation made that, subject to compliance with the pre-grant conditions of the ILUA, the Mining Lease is granted over the entire application area, for the term sought by the Applicant and for the purposes sought by the Applicant, except for the purpose of mining spinel. (at [6] & [19]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION – INDIGENOUS LAND USE AGREEMENT Mineral Resources Act 1989, ss 6A, 245, 252, 252A, 252C, 269(4), 270(1), 420 Mineral Resources Regulation 1990 Native Title Act 1993 (Cth), ss 24CA to 24CL, 24EB Re M.J. & J.M. Elliot [2004] QLRT 23 at [18] COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A [1] KINGHAM DP: This is an application by Maurice James Elliot under s.245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 19.7944ha area of -- 1 of 5 -- land in the Scrub Lead Dedicated Fossicking Land in the Emerald Shire for the purpose of mining gold, diamond, sapphire, zircon and spinel and for a tailings/settling dam. The Application was lodged with the Mining Registrar for the Emerald mining district on 28 September 2000. No objection to the Application was lodged during the public objection period, which ended on 6 August 2004. The underlying tenure is unallocated state land. [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. There is no evidence before the Tribunal regarding compliance with those conditions, other than in relation to payment of 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 • By 1 April 2004, the Applicant had executed a “Deed by Miner” under the ILUA.4 Accordingly, 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 were no objections to this Application. It appears there is no reserve or restricted land in the area applied for. I am satisfied that the preconditions to exercising my discretion to dispense with a hearing have been fulfilled. The material supplied by the Applicant 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 the Applicant sworn on 9 August 2004. I have also relied upon the other material lodged by the Applicant 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 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 -- 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. Section 269(4)(a) - Have the provisions of the Act been complied with? [5] On 2 July 2004, the Mining Registrar issued a Certificate of Public Notice.6 The Applicant 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 2 July 2004, which he can only do 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.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 gold, diamond, sapphire, zircon and spinel. The ILUA provides that the consent to the grant is subject to the grant being confined to the minerals gold, diamond, sapphire and zircon.9 There is no evidence that the Applicant has the consent of the native title claimants for the area applied for, to a grant of a mining lease for the purpose of mining spinel. The Applicant has had extensive gem mining experience in this district. The area applied for is in a known mineral producing area and is in the vicinity of numerous leases. The area has been previously mined and this operation involves both retreatment of previous workings and mining any residual deposits. As the area applied for falls within Restricted Area 1 under the Mineral Resources Regulation 1990, it cannot be the subject of an exploration tenure. I am satisfied that the area is generally mineralised. However, because of the terms of the ILUA and the lack of any evidence that the native title provisions of the Act have been complied with in relation to the proposal to mine spinel, I recommend that the lease not be granted for the purpose of mining spinel. [7] The other purpose for which the lease is sought is for a tailings/settlement dam. This falls within the definition of “mine” in the Act and is an appropriate purpose for the grant of a mining lease.10 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? [8] The Applicant proposes to operate the proposed lease under project PJ70025. The treatment plant is located on another lease applied for by the Applicant, ML 70303. The Applicant owns all the necessary equipment to mine in the manner proposed. 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. 6 Section 252A. 7 Section 252C. 8 Section 252(1). 9 ILUA clause 9.1(d). 10 Section 6A. -- 3 of 5 -- 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? [9] The boundaries of the lease were determined by existing adjoining leases. The Applicant has 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? [10] The Applicant seeks a term of 10 years. That term is sought to fit with the mining program for the project overall. 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? [11] The Applicant owns the necessary equipment for the mine and has sufficient financial resources to commence operations as soon as the lease is granted. The Applicant has some 20 years mining experience in this region. There is no evidence to suggest that the Applicant does not have access to the necessary financial and technical resources. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [12] The Applicant had two mining claims cancelled more than a decade ago for non- payment of security deposits. The circumstances of the cancellation have been examined by the Tribunal in another case and were satisfactorily explained.11 Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing Applicant for exploration permits or mineral development licences? [13] 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? [14] The lease area is currently used for fossicking and low intensity grazing. It is in the immediate vicinity of a large number of other leases. The area has been extensively disturbed previously. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [15] The draft environmental authority was issued on 9 November 2001. It requires the Applicant to comply with the standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects. The draft authority was publicly advertised and no objections were lodged in relation to it. There is no 11 Re MJ & JM Elliot [2004] QLRT 23 at [18]. -- 4 of 5 -- evidence to suggest that the environmental impacts will not be adequately dealt with by compliance with the conditions of the Code. Section 269(4)(k) – Will the public right and interest be prejudiced? [16] There is no public infrastructure on the area applied for. There was no evidence before me that indicated the public right and interest would be prejudiced. 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? [17] 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? [18] 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: [19] 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, subject to compliance with the pre-grant conditions of the ILUA, the Mining Lease is granted over the entire application area, for the term sought by the Applicant and for the purposes sought by the Applicant except for the purpose of mining spinel. -- 5 of 5 --