Australian Diatomaceous Earth Pty Ltd & Ors, Re [2004] QLRT 89

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Australian Diatomaceous Earth Pty Ltd & Ors [2004] QLRT 89 PARTIES: Re Application for Mining Lease No. 10289 by Australian Diatomaceous Earth Pty Ltd and Others FILE NO/S: AML99/04 PROCEEDING: Application for mining lease DELIVERED ON: 14 September 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 subject to compliance with all relevant provisions of the Native Title Act 1993 (Cth), Application for Mining Lease No. 10289 applied for by the Applicants, be granted for the purpose and area applied for, for the term of 50 years. (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 Native Title Act 1993 (Cth) COUNSEL: N/A SOLICITORS: Hopgood Ganim, for the Applicants AGENT/S: N/A Application [1] This is an application by Australian Diatomaceous Earth Pty Ltd, Diatomaceous Earth Investments Pty Ltd and ADE Filter Aid Pty Ltd (the applicants) under s. 245 -- 1 of 5 -- of the Mineral Resources Act 1989 (the Act) for a mining lease over a 24ha area of land situated at Conjuboy, approximately 139km north-west of Charters Towers for the mining of diatomaceous earth. The application was lodged with the mining registrar for the Charters Towers mining district on 18 August 2003. One objection to the application was lodged during the public objection period which ended on 21 March 2003. The objection was recently struck out. 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 are no current objections to the grant of the application, (c) no restricted land is involved, 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 -- 2 of 5 -- (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 17 September 2003, 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 within the times prescribed. I note that the land the subject of this application includes land (unallocated State land) where native title may exist. This application therefore cannot be granted until all relevant provisions of the Native Title Act 1993 (Cth) have been complied with. No restricted land or reserve land is involved. 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 the purpose of establishing and operating a processing and treatment plant and associated infrastructure. This includes settling ponds, processing plant, pipeline, warehouse, ore and product storage and fuel, water and acid storage. The applicants intend to transport diatomaceous earth ore from their nearby mining operation (ML 10279) to the subject area for processing. Benign ore waste products will be trucked back to ML 10279 and used to backfill voids. I am satisfied that the purposes for which the lease is sought are appropriate. [9] Section 269(4)(c): This factor is not applicable as the land applied for is not to be mined. [10] Section 269(4)(d): The application said that the area and shape applied for was selected taking into account the preferences of the holder of the underlying EPM, the proposed layout of the processing plant and related infrastructure, access to power and water, previous disturbance and existing infrastructure of the adjacent Greenvale Nickel Mine Site, ease of access within the property, local topography and the need to provide security of access. There is no evidence to indicate that the size and shape is not appropriate. [11] Section 269(4)(e): A term of 99 years is sought. That term is envisaged to cover the treatment of diatomaceous earth, extracted from ML 10279, on an “as market -- 3 of 5 -- demands” basis, as well as for rehabilitation and related purposes. Mineralisation reserves on that mining lease have been estimated at in excess of 200 years. However, the Tribunal’s recommendation in ML 10279 was for a term of 50 years and I am not satisfied on the material before me that a different (and longer) term should apply to this application. I am satisfied that a term of 50 years is appropriate. [12] Section 269(4)(f): The applicants developed and have operated a gold mine in New South Wales for a number of years. They have available appropriate technical and managerial expertise and a team with over 20 years experience in geology, mining, mine development, operation and rehabilitation of mining projects. I also note that in their application for ML 10279, the applicants said that they are arranging project funding via bank financing and equity investors. I am therefore satisfied that they 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): There is no evidence before me that indicates that the rights of the holder of EPM11223 (held by the former objector) would be disadvantaged by the grant and operation of this proposed mining lease. I do not understand there to be any other relevant underlying tenures. [15] Section 269(4)(i): The subject land is unallocated State land and has no defined use. The processing and related 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 processing and related operations conform with sound land use management. [16] Section 269(4)(j): The processing 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 processing and related 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. [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 -- 4 of 5 -- Resources and Mines that subject to compliance with all relevant provisions of the Native Title Act 1993 (Cth), Application for Mining Lease No. 10289, applied for by the applicants to establish and operate a diatomaceous earth processing and treatment plant and associated infrastructure, be granted over the whole of the application area (24ha) for the term of 50 years. -- 5 of 5 --