Barry, Re [2004] QLRT 48

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Jason Andrew Barry [2004] QLRT 48 PARTIES: In the Matter of Mining Lease 70223 - application by Jason Andrew Barry for Mining Lease FILE NO/S: AML00027/2001 PROCEEDING: Application for Mining Lease DELIVERED ON: 27 May 2004 DELIVERED AT: Brisbane HEARING DATE: 16 February 2001 PRESIDING MEMBER: Kingham DP ORDER/S: 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 Mineral Resources Act 1989, ss. 252(1), 269(4), 420 Native Title Act 1993 (Cth), ss 24CA to 24CL, 24EB [1] KINGHAM DP: This is an application by Jason Andrew Barry under section 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a .92 ha area of land in the Scrub Lead designated fossicking land at Emerald for mining sapphire and zircon. The application was lodged with the Mining Registrar for the Emerald mining district on 25 February 2000. No objection to the application was lodged during the public objection period, which ended on 30 June 2000. The application was heard in Brisbane on 16 February 2001, Mr Barry appearing by telephone and representing himself. The underlying land tenure is “non-exclusive” land. The hearing in Brisbane was adjourned to enable the Applicant to fulfil the requirements of the native title provisions of the Act. [2] A number of events have affected this Application: • The National Native Title Tribunal has registered an Indigenous Land Use -- 1 of 4 -- 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 assumes the obligations of a miner under the ILUA and fulfils certain pre-grant conditions.2 There is no evidence before the Tribunal regarding compliance with those conditions, other than a receipt provided by the Mining Registrar which appears to relate to payment of certain moneys due under the ILUA. 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; • On 24 May 2004, the Applicant executed a Deed assuming the obligations of a “miner’ under the ILUA.3 Accordingly, the native title provisions of the Act do not apply to this Application.4 Section 269 (4) criteria: [3] In taking account of and considering the criteria specified in section 269(4), I have relied upon the evidence given personally by Mr Barry and upon the exhibits tendered during the hearing. These reasons refer to the salient points, but not to all the relevant evidence, that I have taken into account in making my recommendation. Section 269(4)(a) - Have the provisions of the Act been complied with? [4] On 26 May 2000, the Mining Registrar issued a Certificate of Application (exhibit 4). Pursuant to Section 252 (1) of the Act, the Mining Registrar can only do so 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. [5] Mr Barry tendered a Declaration of Posting and Advertising that certified compliance with the requirements for notifying the application (exhibit 2). I note the declaration indicates it was received on 23 October 2000 and that the Mining Registrar extended time for lodgement of the declaration to that date pursuant to section 252(9) of the Act. Mr Barry also tendered the Field Officer’s Report (exhibit 3) that indicates that the requirements for marking the boundaries of the application area have been complied with. 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 sapphire and zircon. Mr Barry is an experienced miner of sapphire and has worked in the mining industry for approximately 15 years. The area applied for is in a known mineral producing area. It is located within Restricted Area No 1.5 Within this area, no exploration permits or mineral development licences may be granted. The area applied for is an old dam wall. The material used to construct the dam wall was top wash from an adjoining mine that has since closed. The miner did not consider it was payable dirt. 1 The Gemfields ILUA – Kangoulu People, Gurang Land Council Aboriginal Corporation, Queensland Sapphire Producers Association and State of Queensland s. 24CA to s. 24CL NTA. 2 ILUA clause 9. 3 ILUA clause 1. 4 s.420. 5 Designated under s63 Mineral Resources Regulation 1990 schedule 4. -- 2 of 4 -- The area applied for is no longer used as a dam. Mr Barry has sampled the material and considers it is viable for the type of operation he envisages. On the basis of this evidence, I am satisfied that the area 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? [7] The applicant will treat the dirt on an adjoining mine and market the stone locally. I note this area has already been extensively mined. This is only a small operation to rework discarded material. I am satisfied the level of development is acceptable. 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 size and shape of the area applied for has been determined by the location of the dam wall. 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 has sought a term of 10 years. He anticipates continuing to work for another miner throughout this period and work this lease on weekends and during holidays. I am satisfied that the term sought is appropriate. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [10] Mr Barry submitted a statement of financial and technical resources with his application. He will not employ any staff. Mr Barry owns the equipment necessary to work the area. I am satisfied the applicant has the necessary financial and technical resources for this operation. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [11] There was no evidence before me to suggest unsatisfactory past performance by the Applicant. Mr Barry stated that he had received no notices regarding non-compliance and had not been convicted of any offences in relation to mining. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permit or mineral development licences or existing applicants for exploration permits or mineral development licences? [12] As exploration permits and mineral development licences cannot be granted in this area, there can be no holders or applicants disadvantaged. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? -- 3 of 4 -- [13] There is no substantial use to which the land is currently being put. It has previously been mined and falls within a designated mining common. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof. [14] There is very little topsoil on the area pegged. What there is will be stockpiled. Only the wash will be taken away for processing, the spoil and oversize will be used to reform the dam wall. The topsoil will then be respread and revegetated using existing seed. If the Mining Lease is granted, the Applicants will be required to conduct mining activities in accordance with the EMOS6. I am satisfied that the commitments in the EMOS are appropriate to minimise those impacts. Section 269(4)(k) – Will the public right and interest be prejudiced? [15] There was no evidence before me that indicated the public right and interest would be prejudiced. The area applied for is part of the mining common and 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. 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] 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 the term sought by the Applicant. 6 Pursuant to a transitional environmental authority under the Environmental Protection Act 1994 ss592 & 590. -- 4 of 4 --