BHP Coal Pty Ltd & Ors, Re [2004] QLRT 98

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Coal Pty Ltd & Ors [2004] QLRT 98 PARTIES: Re Application for Additional Surface Area No. 5 by BHP Coal Pty Ltd and Others FILE NO/S: AML54/04 PROCEEDING: Application for additional surface area of land DELIVERED ON: 6 October 2004 DELIVERED AT: Emerald 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 Additional Surface Area No. 5 applied for by the Applicants for the mining for coal, gaseous hydrocarbons and associated purposes, be included in Mining Lease No. 1762, with the term to be concurrent with ML 1762 to expire on 31 July 2011. (at [20]) CATCHWORDS: MINING – MINING LEASE – ADDITIONAL SURFACE AREA APPLICATION – RECOMMENDATION Land and Resources Tribunal Act 1999, ss 39, 40 Mineral Resources Act 1989, ss 252(1), 269(4), 270, 275 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 6 other companies (the applicants) under s. 275 of the Mineral Resources Act 1989 (the Act) for an additional surface -- 1 of 5 -- area (No. 5) to be included in their mining lease for an existing coal mine (Blackwater Mine) situated within ML 1762. An additional area of 1,412ha was sought for the mining of coal, gaseous hydrocarbons and associated purposes (infrastructure). The land is situated about 20km south of Blackwater. The application was lodged with the mining registrar for the Rockhampton mining district on 11 December 2003. No objections to the application were lodged during the public objection period which ended on 5 April 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 40 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 owners of the affected restricted land have consented, and (d) the owners of the affected reserve land have also consented, I regard this an appropriate case to dispense with a hearing. I order accordingly. Tribunal’s statutory function [4] In cases such as this,1 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 1 Section 275(2) requires a section 275 application to be “dealt with in the same manner as if it were an application for a mining lease made under this part [of the Act]”. That enlivens the Tribunal’s statutory function under section 269. -- 2 of 5 -- (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 (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 11 December 2003, the mining registrar issued a certificate of application. Pursuant to s. 252(1) of the Act, the mining registrar can do so only if satisfied that the applicants are eligible to apply for the additional surface area 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 within the times prescribed. I note that the land the subject of this application comprises various tenures (statutory special leases, etc) which have had the effect of extinguishing any native title. I also note that the owners of the affected restricted land and reserve land have consented to the grant of this application. I am satisfied that the provisions of the Act have been complied with. [8] Section 269(4)(b): The application seeks the grant of an additional surface area of land for the open cut mining of coal and gaseous hydrocarbons, and also for the construction of necessary infrastructure. Exploration drilling programs have developed a geological model of coal seams in this area. A long-term mine plan over the next 30 years has been proposed to extract coal reserves from this area—which is to be part of the existing Blackwater Mine. I am satisfied that the land is mineralised and that the purposes for which the lease is sought are appropriate. [9] Section 269(4)(c): This additional area of land is sought to allow the planned continuation of Blackwater Mine’s Tannyfoil and Wilpeena Pits by open cut strip method. I am satisfied 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 selected taking into account the boundaries of the applicants’ other additional surface areas and to permit existing pits to be expanded to the east. There is no evidence to indicate that the size and shape is not appropriate. -- 3 of 5 -- [11] Section 269(4)(e): The term applied for is sought to be concurrent with ML 1762 which expires on 31 July 2011. I am satisfied that such a term is appropriate. [12] Section 269(4)(f): The applicants comprise the joint venture called Central Queensland Coal Associates Joint Venture (CQCA) which owns the Peak Downs, Saraji, Norwich Park, Goonyella and Blackwater Mines. The mines are operated by BM Alliance Coal Operations Pty Ltd (BMA) on behalf of CQCA. Each applicant is of sound financial standing. BMA is jointly owned by BHP Billiton Ltd and Mitsubishi Development Pty Ltd. Blackwater Mine has available the technical resources of staff on site and the business development and environmental services departments of BMA, consisting of engineers, geologists, surveyors and environmental scientists. I am therefore 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, mining tenure cancelled, penalty or conviction under the Act. [14] Section 269(4)(h): The only relevant underlying tenure is ML 1762 which is held by the applicants. [15] Section 269(4)(i): The subject land is currently used for cattle grazing activities. It is otherwise capable of being used for mining activities only. The mining and related 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 operations to be carried on under the authority of the mining lease over the additional area concerned will conform with sound land use management. [16] Section 269(4)(j): The mining and related activities 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 was no objection to the issue of that authority. I am not satisfied that there will be such an environmental impact caused by the proposed mining activities and related operations on the additional land sought 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. -- 4 of 5 -- 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 Additional Surface Area No. 5 applied for by the applicants for the mining of coal, gaseous hydrocarbons and associated purposes, be included in Mining Lease No. 1762, with the term to be concurrent with ML 1762 to expire on 31 July 2011. -- 5 of 5 --