Beringer, Re [2004] QLRT 83

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re K.J. Beringer [2004] QLRT 83 PARTIES: In the Matter of Mining Lease No. 95471 – Application by Karl Johann Beringer for Mining Lease FILE NO: AML00117/2004 PROCEEDING: Application for mining lease DELIVERED ON: 25 August 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 purpose and for the term sought by the Applicant. (at [18]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION – INDIGENOUS LAND USE AGREEMENT Mineral Resources Act 1989, ss 245, 252, 252A, 252C, 269(4), 270(1), 420 Native Title Act 1993 (Cth), ss 24CA to 24CL, 24EB COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A [1] KINGHAM DP: This is an application by Karl Johann Beringer under s. 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 18.8284ha area of land at Devil Devil in the Winton Shire for the purpose of mining opal. The Application was lodged with the Mining Registrar for the Winton mining district on 4 May 2004. No objection to the Application was lodged during the public objection period, which ended on 11 July 2004. The underlying tenure is a pastoral holding. -- 1 of 5 -- [2] A number of events have affected this Application: • On 13 June 2002, 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 become a “grantee party” to the ILUA.2 It provides that the right to negotiate procedure prescribed by the Native Title Act 1993 (Cth) (the NTA) does not apply to the grant of mining leases made in accordance with the ILUA;3 • The consent is subject to the grantee party fulfilling certain pre-grant conditions.4 As a condition of the consent to the grant, clause 9.5(a)(ii) of the ILUA requires compliance with Section 1 of the Native Title Conditions for Mining Claims and Mining Leases, set out in Part C of the ILUA. There is no evidence before the Tribunal regarding compliance with those conditions. Whilst it is not clear whether all pre-grant conditions have been fulfilled, this Tribunal has no role prescribed by the ILUA in supervising or enforcing pre-grant conditions; • The ILUA provides for the lease to be granted subject to certain post-grant conditions;5 • On 4 May 2004, the Applicant executed a Deed to become a “grantee party” under the ILUA.6 Accordingly, the native title provisions of the Act do not apply to this Application.7 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 restricted or reserve 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 Lothar Behrendt on behalf of the Applicant sworn on 5 August 2004. I have also relied upon the other material lodged by the Applicant with the Department of Natural Resources, Mines and Energy 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 to all the relevant evidence, that I have taken into account in making my recommendation. 1 The Winton ILUA – Maiawali and Karuwali People Q101/28 s. 24CA to s. 24CL NTA. 2 ILUA clause 9.5. 3 ILUA clause 5.3. 4 ILUA clause 9.5(a)(ii) and Section 1 of the Native Title Conditions for Mining Claims and Mining Leases. 5 Section 24EB NTA and ILUA clause 9.5 and s. 2 of the Native Title Conditions for Mining Claims and Mining Leases. 6 ILUA clause 1.15 (b). 7 Section 420. -- 2 of 5 -- Section 269(4)(a) - Have the provisions of the Act been complied with? [5] On 17 May 2004, the Mining Registrar issued a Certificate of Public Notice.8 The Applicant lodged a Declaration of Compliance with the requirements for notifying the Application, within the time required.9 The Mining Registrar issued a Certificate of Application on 4 May 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.10 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 opal. The Applicant has explored for opal for 1 year on the area applied for. The area applied for is in a known mineral producing area and is in the vicinity of other leases. The Applicant has located opal trace on the surface and has identified opal levels that show potential up to 5 metres below the surface. I am satisfied that the area is generally 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? [7] The Applicant proposes a standard open cut mine using an excavator, bulldozer and backhoe. Operations will commence as soon as the lease is granted. 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. 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? [8] The Applicant determined the boundaries of the lease on an assessment of the area of mineralisation based on exploration activities. The Applicant has sought a mining lease over the entire surface area applied for. The area applied for does not exceed the maximum consented to pursuant to the ILUA.11 There is no evidence to indicate the size and shape is not appropriate. Section 269(4)(e) - Is the term sought appropriate? [9] The Applicant seeks a term of 10 years. This is consistent with the consent provided for in the ILUA.12 8 Section 252A. 9 The Mining Registrar exercised his power under Section 252C(1)(b) to extend time for the Applicant to lodge the Declaration of Compliance. 10 Section 252(1). 11 Clause 9.5(a)(iv). 12 Clause 9.5(a)(iii). -- 3 of 5 -- Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [10] The Applicant owns the necessary equipment for the mine and states that he has sufficient financial resources to undertake the proposed mining operation. 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? [11] There is no evidence to suggest the past performance of the Applicant has not been satisfactory. 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? [12] The underlying exploration permit, EPM 13945, which has now expired, was held by the Applicant. 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? [13] There is no current land use for the lease area. There are a number of leases on this property. The landholders did not object to the mining lease. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [14] A draft environmental authority was issued on 6 May 2004. The draft authority 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 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? [15] 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? [16] There was no evidence before me that indicated any good reason why this Application should be refused. -- 4 of 5 -- Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [17] 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: [18] 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, Mines and Energy that, subject to compliance with the pre-grant conditions of the ILUA, the Mining Lease is granted over the entire application area, for the purpose and for the term sought by the Applicant. -- 5 of 5 --