Bjelivuk, Re [2004] QLRT 41

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re M. Bjelivuk [2004] QLRT 41 PARTIES: In the matter of Application for Mining Lease No 95409 by Milos Bjelivuk FILE NO/S: AML00062/2004 PROCEEDING: Application for Mining Lease DELIVERED ON: 14 May 2004 DELIVERED AT: Brisbane HEARING DATE: Heard on the Papers PRESIDING MEMBER: Smith DP ORDER/S: 1. Hearing dispensed with (at [4]) 2. In the event that an inspection report prepared pursuant to the Winton ILUA contains reference to any exclusion zones or recommendations for site protection measures, then I recommend to the Honourable the Minister for Natural Resources, Mines and Energy that such exclusion zones and recommendations be included as special conditions of the grant. (at [8]) 3. Subject to Order 2, I recommend to the Honourable the Minister for Natural Resources, Mines and Energy that Mining Lease No. 95409 be granted over the entire application area, for the purpose of mining for opal for a term of 10 years. (at [32]) CATCHWORDS: MINING – MINING LEASE – NATIVE TITLE – INDIGENOUS LAND USE AGREEMENT (ILUA) – RECOMMENDATION Mineral Resources Act 1989, ss 245, 252, 269, 270, 276 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 Gary Reginald Page [2002] QLRT 35, followed Re Joseph Michael Taranto [2002] QLRT 36, followed -- 1 of 5 -- COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: N/A [1] SMITH DP: On 28 July 2003 Milos Bjelivuk (hereafter referred to as “the Applicant”) lodged Mining Lease Application No 95409 with the Mining Registrar, Winton 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 opal. [2] No objections were duly lodged to the Mining Lease Application. [3] The Applicant has requested that the Application be dealt with without an oral hearing, pursuant to s. 270 of the Act and has provided the information required by Practice Direction No. 1 of 2001. The Mining Registrar has also provided the Tribunal with a report to which are attached relevant documents. [4] I may dispense with a hearing if satisfied as to matters specified in s. 270(1). For reasons that follow, I am satisfied that the provisions of part 7 of the Act have been complied with in respect of the Application. I note that there were no objections to this Application. It appears there is neither reserve nor restricted land in the area applied for. I am, therefore, satisfied that the preconditions to my exercising the 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. [5] 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 the Applicant dated 15 April 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 all the relevant evidence, that I have taken into account in making my recommendation. [6] 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. Native Title Considerations [7] The Application is over non-exclusive land. However, the material reveals that the application area is within the boundaries of a registered Indigenous Land Use Agreement (hereafter “the Winton ILUA”). [8] I note that, pursuant to the Winton ILUA, there are significant requirements on the Applicant before the grant can be made. I have closely considered those -- 2 of 5 -- requirements and, provided they are all complied with, I see no reason why the application for grant cannot proceed.1 Naturally, great care must be taken by the Applicant to ensure compliance with the Winton ILUA. In particular, I note the requirements relating to inspections and any resulting exclusion zones and site protection measures. In the event that an inspection report prepared pursuant to the Winton ILUA contains reference to any exclusion zones or recommendations for site protection measures, then I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that such exclusion zones and recommendations be included as special conditions of the grant. [9] I now turn to the other matters that I have to take into account and consider in this matter. Section 269(4)(a) – Have the provisions of the Act been complied with? [10] On 28 July 2003, the Mining Registrar, Winton District, issued a Certificate of Application which was accepted by the Applicant. Pursuant to s. 252(1) of the Act, the Mining Registrar can only issue a Certificate of Application 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. [11] I note that the underlying tenure is a pastoral holding and that the native title issues are subject to the registered Winton ILUA.2 [12] In my opinion, there is sufficient evidence of compliance with the provisions of the Act in respect to this Application. Further, no material was in evidence before me to indicate any non-compliance with any relevant provisions of the Act. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [13] The Applicant’s evidence is that the land applied for is mineralised. The Applicant further deposes of opal trace and old diggings in the application area. The application area is within a known mineral producing area. [14] Accordingly, I am satisfied 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? [15] The material before me reveals the Applicant’s proposed mining operations and program, and shows appropriate development and utilisation of the mineral resources within the area applied for. 1 See Re Gary Reginald Page [2002] QLRT 35. 2 See the Mining Registrar’s Report of 29 April 2004. -- 3 of 5 -- 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? [16] The material before me appears to indicate a mining lease application of an appropriate size and shape in light of the Plan of Operations. There is no evidence to indicate that the size and shape is not appropriate. Section 269(4)(e) – Is the term sought appropriate? [17] The term sought for this mining lease is 10 years. I note that harsh weather conditions prevent year round mining.3 The Winton ILUA allows mining leases to be granted for a maximum period of 10 years. In my view a term of 10 years 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? [18] Documents and evidence provided to the Tribunal show that the Applicant has the financial capabilities to carry on the mining operations. [19] From the material it also appears that the Applicant has the necessary technical capabilities to carry on mining operations under the proposed mining lease. [20] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [21] With respect to this criterion, I also rely on the evidence relating to s. 269(4)(f) above. [22] The Applicant has sworn that no enforcement action has been taken against him. The Mining Registrar’s Report is consistent with what the Applicant 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? [23] The Applicant held EPM 11542.4 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? [24] There is no evidence before me to suggest that the proposed operations do not conform with sound land use management. The application area is within a known opal producing area. 3 See Re Joseph Michael Taranto [2002] QLRT 36 at 18. 4 I note that the older of a 50% interest in EPM 11542, Sedina Bjelivuk, consented to the Application by letter dated 29 July 2003. -- 4 of 5 -- Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [25] A draft environmental authority was issued on 1 August 2003, which requires the Applicant to carry out activities in accordance with the Standard Environmental Conditions contained in the Code of Environmental Compliance for Mining Lease Projects. 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 be adequately dealt with by compliance with the conditions of the Code. Section 269(4)(k) – Will the public right and interest be prejudiced? [26] The material before me indicates that there are no public roads or other public utilities on the application area. [27] There appears to be no endangered flora or fauna within the application area. [28] 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 the protection or site avoidance can be implemented. I further note the specific requirements on the Applicant contained in the Winton ILUA relating to Cultural Heritage, both pre and post grant. [29] I am satisfied that the public right and interest will not be prejudiced should this mining lease be granted, provided it complies in all respects with the requirements of the Winton ILUA. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [30] 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? [31] The materials show that the project is for the extraction of a potentially valuable resource in accordance with the environmental processes. The grant is also subject to all the terms and conditions of the Winton ILUA. The Application is without objection. I am satisfied that the proposed mining operation is an appropriate land use. Recommendation [32] Taking into account all the evidence before me and, in particular, that evidence referred to above, and subject to Order 2, I recommend to the Honourable the Minister for Natural Resources, Mines and Energy that Mining Lease No. 95409 be granted over the entire application area for the purpose of mining for opal for a term of 10 years. -- 5 of 5 --