Australian Diatomaceous Earth Pty Ltd & Ors, Re [2004] QLRT 76

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Australian Diatomaceous Earth Pty Ltd & Ors [2004] QLRT 76 PARTIES: Re Application for Mining Lease No. 10279 by Australian Diatomaceous Earth Pty Ltd and Others FILE NO/S: AML27/03 ENO28/03 PROCEEDING: Application for mining lease DELIVERED ON: 18 August 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. 10279 applied for by the Applicants, 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 Re Australian Diatomaceous Earth Pty Ltd & Marsterson [2004] QLRT 49, referred to COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A -- 1 of 5 -- 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 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 133ha area of land situated at Conjuboy, approximately 180km 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 8 October 2002. One objection to the application was lodged during the public objection period which ended on 21 March 2003. The objection was later withdrawn. 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 requested in their 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 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, Mines and Energy 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 -- 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 8 October 2002, 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 is held by way of grazing homestead perpetual lease. Accordingly, the native title provisions of the Act do not apply. No restricted land or reserved land is involved. Compensation for the effect upon the landowners of the proposed mining lease has already been determined.1 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 mining of diatomaceous earth. The applicants’ AISD form said that the applicants knew that the proposed mining lease area was mineralised because of various outcroppings and the positive results of a drilling program. I am satisfied that the area is mineralised and that the other purposes for which the lease is sought are appropriate. [9] Section 269(4)(c): As explained in my earlier decision dealing with compensation, the applicants propose to excavate the diatomaceous earth (a naturally-occurring white chalky or powdery substance made from fossilised marine plant organisms) and truck it offsite for processing. The excavation operations will occur on up to 100 days per year. The area will be progressively mined, backfilled and rehabilitated. I am satisfied that there will be an acceptable level of development and utilisation of the mineral resources within the area applied for. 1 Re Australian Diatomaceous Earth Pty Ltd and Marsterson [2004] QLRT 49. -- 3 of 5 -- [10] Section 269(4)(d): The application said that the area and shape applied for was selected because of the results of test work, ease of access within the property and local topography. There is no evidence to indicate that the size and shape is not appropriate. [11] Section 269(4)(e): A term of 50 years is sought. That term is envisaged to cover the extraction of diatomaceous earth on an “as market demands” basis, as well as for rehabilitation and related purposes. It is significant that mineralisation reserves have been estimated at in excess of 200 years. I am satisfied that the term sought 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. I also note that the applicants 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): The evidence indicates that there are no such underlying tenures. [15] Section 269(4)(i): The current land use is for cattle grazing. Most of the land is otherwise capable of being used for mining purposes only.2 The mining 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 proposed mining 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 Environmental Protection Agency. The applicants must comply with the various environmental conditions set out in that document. There is no current objection to the issue of that authority. The applicants and the landowners have also agreed that the applicants will undertake a variety of prescribed safety measures in respect of carrying out activities as part of the mining project. I am not satisfied that there will be such an environmental impact caused by the proposed mining 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. 2 Part (30ha) of the application area is capable of being used for fodder growing, but it would first have to be cleared of trees and rocks and irrigation facilities installed: see [2004] QLRT 49, at [11]. -- 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, Mines and Energy that Application for Mining Lease No. 10279, applied for by the applicants for the mining of diatomaceous earth, be granted over the whole of the application area (133ha) for the term of 50 years. -- 5 of 5 --