BHP Mitsui Coal Pty Ltd, Re [2004] QLRT 104

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Mitsui Coal Pty Ltd [2004] QLRT 104 PARTIES: Re Application for Mining Lease No. 70194 by BHP Mitsui Coal Pty Ltd FILE NO/S: AML49/04 PROCEEDING: Application for mining lease DELIVERED ON: 12 October 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 Application for Mining Lease No. 70194 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), 270 Environmental Protection Act 1994 COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A Application [1] This is an application by BHP Mitsui Coal Pty Ltd (the applicant) under s. 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 79.7ha area of land situated 27km north-west of Moranbah, for an environmental dam, water management and access road. The application was lodged with the mining registrar for the Emerald mining district on 3 August 1999. No objections to the application were lodged during the public objection period which ended on 15 August 2004. -- 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 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 applicant requested in its Additional Information and Statutory Declaration form (AISD form) 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 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 restricted land (a dam) has consented to the grant of the mining lease, 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 (ii) existing applicants for exploration permits or mineral development licences; and -- 2 of 4 -- (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 4 February 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 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. The land the subject of this application comprises freehold land. Native title is therefore not in issue. 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 an environmental dam, water management and access road, as part of the applicant’s Goonyella/Riverside Mine. I am satisfied that the purposes for which the lease is sought are appropriate. [9] Section 269(4)(c): This factor is not applicable because it is not intended that mining for coal will occur on the application area. [10] Section 269(4)(d): The application said that the area and shape applied for was determined by the need to contain Williams Dam and Eureka Creek, a common boundary with ML 1900 to the north and east and the adjoining railway land. There is no evidence to indicate that the size and shape is not appropriate. [11] Section 269(4)(e): A term of 25 years is sought. The application area is associated with ML 1900, the renewed term of which will expire on 31 December 2024. It is intended that the term of the lease the subject of this application will coincide with that of ML 1900. I am satisfied that the term sought is appropriate. [12] Section 269(4)(f): The application is a large and established company operating in the mining industry. There is no evidence that the applicant does not have the requisite financial and technical capabilities. [13] Section 269(4)(g): The applicant is a successful and respected mining company which has never contravened the Act. [14] Section 269(4)(h): The evidence indicates that there are no such underlying tenures. [15] Section 269(4)(i): The land is currently used for an environmental dam and for grazing. The dam, water management and access road will be constructed and operated in accordance with the draft environmental authority issued under the Environmental Protection Act 1994. After mining operations are completed, the -- 3 of 4 -- subject land will be appropriately rehabilitated. I am satisfied that the proposed 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 EPA. 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 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. A water pipeline (within a registered easement) traverses some of the subject land. I do not understand that it will be affected by the proposed operations. [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 Application for Mining Lease No. 70194, applied for by the applicant, be granted for the purpose, area and term applied for. -- 4 of 4 --