CAML Resources Pty Ltd & Ors, Re [2004] QLRT 88

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re CAML Resources Pty Ltd & Ors [2004] QLRT 88 PARTIES: In the matter of Application for Mining Lease No 70309 by CAML Resources Pty Ltd, ICRA Foxleigh Pty Ltd and Bowen Basin Investments Pty Ltd FILE NO/S: AML109/2004 PROCEEDING: Application for Mining Lease DELIVERED ON: 10 September 2004 DELIVERED AT: Brisbane HEARING DATE: 18 August 2004 MEMBER: Smith DP ORDER/S: 1. I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease No. 70309 be granted over the application area of 2042 hectares, for the purpose and term sought by the Applicant. (at [33]) CATCHWORDS: MINING – MINING LEASE –– RESTRICTED LAND – CONSENT OF LANDHOLDER – SUBSTANTIAL COMPLIANCE – RECOMMENDATION Mineral Resources Act 1989, ss 238, 245, 252, 269, 276, 392 Sinclair v. Mining Warden at Maryborough and Anor (1975) 132 CLR 473, applied Beattie v. McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993, applied Re New Oakleigh Coal Pty Ltd v Hardy & Ors and EPA [2003] QLRT 24, distinguished COUNSEL: N/A SOLICITOR: Praeger Batt AGENT/S: N/A [1] SMITH DP: On 18 December 2002 CAML Resources Pty Ltd, ICRA Foxleigh Pty Ltd and Bowen Basin Investments Pty Ltd (hereafter referred to as “the Applicants”) -- 1 of 5 -- lodged Mining Lease Application No 70309 with the Mining Registrar, Emerald District. The Application was lodged pursuant to s. 245 of the Mineral Resources Act 1989 (hereafter referred to as “the Act”) for the purpose of mining for coal and dams, spoil heaps, haul roads, water storage, water treatment and reticulation, administration infrastructure, workshops and employee amenities and fencing, water management and erosion structures. [2] No objections were duly lodged to the Mining Lease Application. [3] A hearing of this matter was conducted on 18 August 2004. The Applicants, through their solicitor, Praeger Batt, subsequently provided additional material and submissions to the Tribunal. [4] In taking account of and considering the criteria specified in s. 269(4) of the Act, I have relied on the Additional Information and Statutory Declaration of Gerard William Batt on behalf of the Applicants dated 22 July 2004, the affidavit of Patrick Noel Scott sworn 19 August 2004, together with additional information and submissions supplied by the Applicants’ solicitor. I have also relied upon the material lodged by the Applicants 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 Application. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account in making my recommendation. [5] In considering this matter, I have also applied, where relevant Sinclair v Mining Warden at Maryborough and Anor (1975) 132 CLR 473 and Beattie v McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993. I have also considered the provisions of the Act, in particular ss 252, 269 and 276. Section 269(4)(a) – Have the provisions of the Act been complied with? [6] On 18 December 2002, the Mining Registrar, Emerald District, issued a Certificate of Application which was accepted by the Applicants. Pursuant to s. 252(1) of the Act, the Mining Registrar can only issue a Certificate of Application 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. [7] I note that the underlying tenure is freehold. Native title issues are therefore not relevant to this Application. [8] At the time that the Application was made, it covered an area of 3338 hectares. However, such area was subsequently reduced to 2042 hectares, with 1296 hectares of the original application area being surrendered.1 The Affidavit of Mr Scott of 19 August 2004 shows that this reduction occurred following negotiations between the landholder and the Applicants, which resulted in a sale agreement being entered into by the landholder to the Applicants with respect to the new application area of 2042 hectares. Further, the sale agreement is subject to the grant of the mining lease. Additionally, taking into account the proposed sale, compensation has been agreed for the purposes of the Act in the sum of $1.00.2 1 See facsimile and attachments, Praeger Batt to Mining Registrar dated 31 May 2004. 2 See letter Praeger Batt to LRT 17 August 2004. -- 2 of 5 -- [9] Significantly, the Certificate of Public Notice was only issued by the Mining Registrar, Emerald on 8 June 2004, after the events set out in paragraph [8] above had occurred. [10] The material shows that, although there were what appear to be significant items that are “restricted land” as defined in the Act with respect to the original application area, the bulk of the “restricted land” was to be found in the surrendered area of 1296 hectares. According to the affidavit of Mr Scott of 19 August 2004, the only remaining restricted land on the application area is a stockyard and a small dam. [11] A review of the material in this matter indicates to me that the Applicants, the landholder, and indeed the Mining Registrar, Emerald, have proceeded with this application on the basis that the sale agreement and compensation agreement between the landholder and applicants are “consent” for the purposes of s. 238(2) of the Act. I note that under the heading relevant to consent relating to restricted land in the Mining Registrar’s report of 29 July 2004, the Mining Registrar has stated “N/A”. [12] To remove any doubt as to the position of the landholder, a formal consent in the terms contemplated by s. 238(2) of the Act was provided by the solicitor for the landholder to the Applicants’ solicitor on 19 August 2004. Of course, 19 August 2004 is outside the time in which the consent should have been obtained, being the last day for objections, which was 20 July 2004, whereas the sale and compensation agreements both predate the last day for objections. [13] I have previously considered the consequences of failing to obtain landholder consent pursuant to s. 238(2) of the Act in Re New Oakleigh Coal Pty Ltd v Hardy & Ors and EPA.3 However, the facts of this case are somewhat different to that case. Further, the Applicant in New Oakleigh sought the grant of the relevant mining lease excluding areas of restricted land. That is not the case in this matter. [14] On the facts of this case, it is my view that it is clearly arguable that the sale and compensation agreements, followed by the abandonment of a substantial amount of the original application area, amount to consent in writing by the landholder in accordance with s. 238(2) of the Act.4 It was only after this that the Mining Registrar issued the Certificate of Public Notice. [15] To remove any doubt that may remain, taking into account all the material before me, I consider that there has been substantial compliance with the provision of s. 238(2) of the Act. Accordingly, in accordance with s. 392 of the Act, it is deemed that the provision of s. 238(2) have been complied with in the prescribed way. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? 3 [2003] QLRT 24. 4 I understand that relevant material with respect to these agreements was provided to the Mining Registrar, and therefore arguably “lodged” with the Mining Registrar as required by s. 238(2)(b) of the Act. -- 3 of 5 -- [16] The Applicants’ evidence is that the land applied for is mineralised. Mineralisation has been confirmed by exploration. I have no doubt that the land applied for is mineralised. 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? [17] The material before me reveals the Applicants proposed mining operations and program, and shows appropriate development and utilisation of the mineral resources in the area applied for. 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? [18] The material before me appears to indicate a mining lease application of an appropriate size and shape in light of the mining operation proposed. There is no evidence to indicate that the size and shape is not appropriate. Section 269(4)(e) – Is the term sought appropriate? [19] The term sought for this mining lease is 32 years. Given the large size of the mineral deposit, I consider the term sought appropriate. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [20] Documents and evidence provided to the Tribunal show that the Applicants have the financial capabilities to carry on the mining operations. [21] I am also satisfied from the material provided that the Applicants have the necessary technical capabilities to carry on mining operations under the proposed mining lease. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [22] With respect to this criterion, I also rely on the evidence relating to s. 269(4)(f) above. [23] The evidence of Mr Batt is that no enforcement action has been taken against any of the Applicants or their directors. The Mining Registrar’s report is consistent with what Mr Batt says. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences? [24] The Applicants held PP 71524, PP 71525 and EPC 692 and hold EPC 617. There is nothing in the material to indicate any disadvantage to any other person. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? -- 4 of 5 -- [25] There is no evidence before me to suggest that the proposed operations do not conform with sound land use management. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [26] A comprehensive draft environmental authority was issued on 3 June 2004. I note that there was no objection to the terms of the draft environmental authority. There is no evidence to suggest that the environmental impacts will not adequately be dealt with by compliance with the conditions of the draft environmental authority. Section 269(4)(k) – Will the public right and interest be prejudiced? [27] The material before me indicates that there are no public roads on the Application area. Although there is a pipeline on the Application area, the evidence is that it will not be affected by the open cut mining operations. [28] There appears to be no endangered flora or fauna within the Application area. [29] The material presented before me also shows that there are no identified sites of historical interest or Aboriginal significance within the Application area. If any such sites are identified, strategies for their protection or site avoidance can be implemented. [30] I am satisfied that the public right and interest will not be prejudiced should this mining lease be granted. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [31] 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? [32] The material shows that the project is for the operation of a significant mine with substantial economic benefits. The Application is without objection. I am satisfied that the proposed mining operation is an appropriate land use. Recommendation [33] 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 Mining Lease No. 70309 be granted over the application area of 2042 hectares for the purpose and term sought by the Applicant. -- 5 of 5 --