Ferguson v Jochim & Ors [2004] QLRT 30

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Ferguson v Jochim & Ors [2004] QLRT 30 PARTIES: In the Matter of Mining Claim No. 70891 – Application by Paul Ronald Ferguson for mining claim and objections by Denise Jochim, Department of Natural Resources, Mines & Energy and Neil and Diane McIntosh to its grant. FILE NO: MCA00005/2004 PROCEEDING: Hearing of application for mining claim and objections to its grant DELIVERED ON: 26 March 2004 DELIVERED AT: Brisbane HEARING DATE: 17 March 2004 in Emerald MEMBER: Kingham DP ORDER/S: That the Mining Registrar for the Emerald Mining District reject the application by Paul Ronald Ferguson for mining claim no 70891 (at [21]) CATCHWORDS: MINING – APPLICATION FOR MINING CLAIM – OBJECTIONS – CONSENT OF OWNERS OF RESTRICTED LAND – UNALLOCATED STATE LAND – WHETHER STATE’S CONSENT REQUIRED – FAILURE TO COMPLY WITH REQUIREMENTS – PUBLIC INTEREST GROUNDS – PAST TENURE AND USE – STATE’S PLANS TO FREEHOLD Mineral Resources Act 1989, ss 51, 64A, 78, Sch. Land Act 1994, ss 16, 17, 20, 27, 122, 234, 241, 449 Miner’s Homestead Leases Act 1913 to 1975 COUNSEL: N/A SOLICITOR/S: Ms Dwyer for NRM&E AGENT/S: N/A -- 1 of 6 -- [1] KINGHAM DP: Mr Ferguson applied for mining claim no 70891 for a five year term to mine gold, diamond, sapphire, and zircon on a .4ha parcel of unallocated state land (USL) on Keilambete Road, Rubyvale, in the Emerald Mining District. Objections to the application were lodged by owners of nearby properties on Keilamete Road, Ms Jochim and Mr & Mrs McIntosh. The Department of Natural Resources, Mines & Energy (NRM&E) also lodged an objection, through its Operations Manager for the Emerald District, Stephen Armstrong. Mr Armstrong administers the Land Act 1994 (the Land Act) for NRM&E in this district. The application and the objections were heard in Emerald on 17 March 2004. [2] The block is in a predominantly residential area. Residences are located on either side. Mr & Mrs McIntosh’s property is across the road and Ms Jochim’s property is on the same side as the block with one property between them. Until recently, the block was used for residential purposes. It is currently unoccupied. [3] It appears from a survey plan in 1974 that the block was crown land, as it was then known, until a miner’s homestead perpetual lease (MHPL) was granted over it that year. Under the Miner’s Homestead Leases Acts, 1913 to 1975, MHPLs were granted for occupation not mining purposes, although a separate miner’s right could be granted. There is no evidence that a miner’s right was ever granted over this block. Ms Jochim, who has lived and mined in the district for more than 30 years, said a former holder of the MHPL had undertaken some mining immediately behind this block, but not on the block itself. There is no evidence that this block has ever been mined. Prior to 1974 the block was vacant. After 1974 it was used exclusively for residential purposes. [4] In 1994, the Land Act introduced significant reforms to the system of land tenures in Queensland. MHPLs could then be converted to freehold tenures. Two offers to the holder of this MHPL to freehold the block lapsed because they were not acted upon. In January 1995 the MHPL was converted to a perpetual town lease (non- competitive lease) and the terms and conditions of the MHPL continued to apply (s. 499 Land Act). On 9 June 2000 the lease was forfeited for non-payment of rent (s. 234 Land Act). Upon forfeiture, the land became unallocated state land (USL) (s. 241 Land Act). Before Mr Ferguson made his application, NRM&E commenced the process of converting the land to state freehold so as to sell the land by public auction. [5] Because the block is in close proximity to a number of residences, Mr Ferguson had to obtain consents in writing to his application from the owners of 11 properties.1. He was concerned that he would not be able to obtain those consents within time. He believed he had to obtain them within 30 days after he lodged the application. In fact, they were required on or before “the last objection day” (s. 51 MRA). The last objection day is fixed by the Mining Registrar when the Certificate of Public Notice (CPN) is issued and must be fixed for a date at least 28 days after the CPN is issued (s. 64A MRA). Between the time the application is lodged and the CPN is issued, the Mining Registrar and the Environmental Protection Agency (EPA) assess the application and issue a Certificate of Application, in the case of the Mining Registrar, and a draft environmental authority, in the case of the EPA. Those steps take some 1 Consent to the application was required from the owners of any “restricted land” s.51 Mineral Resources Act 1989 (MRA). “Restricted land” includes land within 100m laterally of a permanent building used mainly as accommodation (Sch MRA). -- 2 of 6 -- time. In this case, the application was lodged on 17 November 2003 and the CPN was not issued until 28 November 2003; 11 days later. The CPN fixed the last objection day 35 days later, on 2 January 2004. Mr Ferguson had 46 not 30 days, then, to obtain the consents. He could have asked the Mining Registrar to fix an even later last objection day to give him more time to obtain the consents, had he thought that was necessary. It appears that Mr Ferguson may have been misled by information given by a former employee of NRM&E about how long he had to obtain the consents. Nevertheless, it is his responsibility, as the applicant, to understand and to comply with the requirements of the MRA. [6] Because of Mr Ferguson’s misunderstanding about when he had to get the consents, he decided to obtain them before he lodged the application. This course of action created a dilemma for Mr Ferguson. Until he lodged his application, he bore the risk that any other person could peg and apply for the block. He feared that, because he had to talk to 11 property owners about the application, word would get around and someone else would apply for the block before he could do so. [7] He conceded that, in order to minimise that risk eventuating, he was vague about the precise location of the area he intended to apply for. It is not surprising, then, that Ms Jochim and Mr & Mrs McIntosh were all confused about where Mr Ferguson intended to peg the claim. Conflicting accounts were given by Mr Ferguson and the objectors about what distance he said the claim would be from their properties. However, the objectors and Mr Ferguson all agreed that the objectors did not know precisely what area was to be pegged. Whilst Mr & Mrs McIntosh are new to the area, Ms Jochim is not and she was as confused as were Mr & Mrs McIntosh by the description Mr Ferguson gave of the area he would apply for. [8] Therein lays the difficulty for Mr Ferguson. He is required to obtain consents to the application. At the time he obtained the consents there was no application. If the application had been lodged, the owners of restricted land could have obtained a precise description of the purpose, term, and area applied for. Mr McIntosh was adamant that he thought the area that would be applied for was further away from his property and not just across the road. Had he known the precise location, he said he would have asked questions about dust, because it is in a residential area. It is worth noting that the consent form signed by Mr & Mrs McIntosh contains no information about the purpose, term or area that was to be applied for. The only detail about the application is the name of the applicant. Mr & Mrs McIntosh did not consent to the application that was subsequently made. They consented to a proposal to apply for an imprecisely identified area. This does not fulfil the requirements of s. 51(2) MRA. [9] Mr Ferguson’s attempt to deal with one risk; that of another miner pegging the area he intended to apply for; exposed him to a risk that has proved fatal to his application; that he could not obtain the genuine consent of those whose consent he required. As discussed at paragraph [5] above, Mr Ferguson could have pegged the claim first and sought a longer objection period to give him more time to obtain consents. This would have protected him from another miner seeking to peg the ground before him and would have avoided the risk of failing to obtain genuine consent. It is unfortunate for Mr Ferguson that he did not fully understand the claim process or his obligations under the MRA. If he had, he may have made better decisions about how he dealt with the owners of the restricted land. -- 3 of 6 -- [10] Mr Ferguson’s application must fail on Mr & Mrs McIntosh’s objection alone, as no mining claim can be granted over the surface of land that is “restricted land” when the claim was lodged without the consent of the owner of that land (s. 51 MRA). Further, if the Tribunal is not satisfied that the provisions of Part 4 of the MRA have been complied with, it must not instruct the Mining Registrar to grant the mining claim (s. 78(2) MRA). I have found that the requirements of s. 51(2), which is in Part 4, have not been complied with. [11] Because of the nature of the other objections to this claim, I consider it appropriate to give my views on them also, even though it is not strictly necessary for me to do so to dispose of this application. Ms Jochim objected that she was misled about the distance from her place to the area applied for. As her consent was not required, little turns on this. [12] NRM&E objected that its consent to the application was not obtained. I do not accept that its consent was required. In support of that objection, NRM&E relied upon clause (c) of the definition of owner in the Schedule to the MRA: “ “owner”, of land, means – (c) if a person is, or will on performing conditions, be entitled to a deed of grant in fee simple for the land – the person” [13] Ms Dwyer, for NRM&E, submitted that the State was entitled to a deed of grant in fee simple upon the performance of the remaining steps referred to in paragraph [17] below. In essence all that remained was executive authority for the grant in fee simple to the State and the grant being made. I do not accept the decision making processes of government in this regard can be characterised as the performance of conditions in the context of that definition. Rather, it is a decision yet to be made. The State will always in a position that it can, upon taking the prescribed steps, make a grant to the State in fee simple over any parcel of USL. Were I to accept Ms Dwyer’s interpretation, NRM&E would have to be notified of every application for a mining claim or lease made over USL. [14] The definition of owner has been amended three times since the Land Act commenced2. A new definition was inserted in 1995 to reflect the terminology used in the Land Act3. It is lengthy and contains specific references to reserves under various Acts, certain types of leases or occupancies and areas under particular management regimes such as the Wet Tropics Area and rail corridor land. The common theme of each of the paragraphs of the definition is that the land has been alienated, has been set aside for a particular purpose, is subject to a management regime under a particular Act or has been earmarked for future use for public purposes. If it was intended an applicant for a mining claim or lease over USL would have to notify NRM&E as the manager of USL, that could easily have been provided for in the definition of owner. I consider the omission of an express reference to USL, in the context of express reference to other types of land tenures, is deliberate. 2 Substituted by 1995 No. 21 s 5(1)-(2); amended by 1997 No. 14 s4(5)-(6) and 2000 No. 26 s 12 sch 1. 3 Explanatory Notes to 1995 No 21. -- 4 of 6 -- [15] Ms Jochim and NRM&E also objected on public interest grounds. Ms Jochim objected to an application to mine in a residential area. NRM&E objected to the potential impact of the grant of the application on its well advanced plans to freehold and sell the block. For the reasons set out below, had it been necessary for me to decide on the basis of these objections, I would have instructed the Mining Registrar to reject the application on the public interest grounds raised by both Ms Jochim and NRM&E (s78(2)(d) MRA). [16] As to Ms Jochim’s objection, it is obvious that there is a potential for dust and noise impacts on nearby residences from the mining operation. Mr Ferguson gave no evidence about the steps he would take to minimise that impact. Whilst there are some mining claims and leases in the surrounding area, the immediate vicinity of the block is exclusively residential. Mr Ferguson did not persuade me that the amenity of the residents would be adequately protected. [17] As to NRM&E’s objection, I am satisfied that significant steps had been taken to freehold and sell this block before the land management officers of the Department became aware that Mr Ferguson had made this application. The process to convert the land to state freehold and to auction it required NRM&E to:  consider what was the most appropriate tenure and use of the land (s. 16(1) Land Act);  assess its status in relation to native title rights and interests (s. 27 Land Act);  have regard to the local authority’s planning scheme (s. 16(2) Land Act);  nominate the land as “surplus” and place it on the Government Land Register for a period of 30 days to allow other government agencies to express an interest in using the land;  obtain a valuation of the land in preparation for auction; and  seek executive authority for a grant in fee simple to be made to the State (ss17 & 122 Land Act). [18] It is not clear how or when NRM&E became aware of the application. Mr Ferguson had to post the CPN on the land and at the Office of the Mining Registrar, also within NRM&E, within 7 days of the CPN being issued on 28 November 2003. Assuming he did that on the day the CPN was issued, the first three steps had been completed already, including formal consultation with the local authority, and NRM&E had instructed State Valuation Services to provide a valuation. I accept that, before the application was publicly notified, NRM&E was well advanced in the process to obtain a grant to the State in fee simple as a prelude to sale by public auction. [19] I accept Mr Armstrong’s assessment that the highest and best use of the land is private freehold. If the mining claim were granted, the State could still convert the block to freehold (s. 20 Land Act). However, it would not be feasible to auction a freehold block encumbered by a mining claim and this would prevent the State from realising the asset until the claim expired. Converting the land to freehold and auctioning it maximises the return on what is currently a non-performing asset. Rent and royalties from a 5 year mining claim would be nominal; unlikely to exceed $140, compared with sale at market value; estimated to be $60,000. To defer the sale for a nominal income from mining is not financially prudent. [20] Further, there is little land available for easy release to freehold in Rubyvale, due to -- 5 of 6 -- native title interests over USL that has not been previously alienated by the State. This block is unusual because native title was extinguished by prior tenures before it was converted to USL when the non-competitive lease was terminated. [21] I instruct the Mining Registrar for the Emerald Mining District to reject the application by Paul Ronald Ferguson for mining claim no. 70891. -- 6 of 6 --