Elliot, Re [2004] QLRT 23

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re M.J. & J.M. Elliot [2004] QLRT 23 PARTIES: In the matter of Application for Mining Lease No 80113 by Maurice James Elliot and Jennifer Muriel Elliot FILE NO/S: AML00019/2004 PROCEEDING: Application for Mining Lease DELIVERED ON: 4 March 2004 DELIVERED AT: Brisbane HEARING DATE: 2 March 2004 MEMBER: Smith DP ORDER/S: 1. I recommend to the Honourable the Minister for Natural Resources, Mines and Energy that Mining Lease No. 80113 be granted over the entire application area, for the purpose and term sought by the Applicants. (at [26]) CATCHWORDS: MINING – MINING LEASE – MINERALS – PAST PERFORMANCE– 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 COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: Mr and Mrs Elliot self-represented [1] SMITH DP: On 18 December 2003 Maurice James Elliot and Jennifer Muriel Elliot (hereafter referred to as “the Applicants”) lodged Mining Lease Application No 80113 with the Mining Registrar, Rockhampton District. The Application was lodged pursuant to s. 245 of the Mineral Resources Act 1989 (hereafter referred to as -- 1 of 5 -- “the Act”) for the purpose of mining for all minerals other than coal, gold, silver, diamonds, sapphire, zircon. [2] No objections were duly lodged to the Mining Lease Application. [3] The Applicants requested that the Application be dealt with without an oral hearing, pursuant to s. 270 of the Act and provided the information required by Practice Direction No. 1 of 2001. The Mining Registrar also provided the Tribunal with a report to which are attached relevant documents. However, due to inconsistencies with the material, particularly relating to the issue of past performance, I decided not to deal with the matter on the papers and the matter proceeded to hearing. The Hearing [4] The matter was heard in Brisbane on 2 March 2004. The Applicants represented themselves at the hearing. Mr Elliot was sworn and gave evidence at the hearing. [5] In taking account of and considering the criteria specified in s. 269(4) of the Act, I have relied on Mr Elliot’s evidence at the hearing, the exhibit, and the Additional Information and Statutory Declaration of Mr Elliot dated 18 February 2004. I have also relied upon the other material lodged by the Applicants 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. Section 269(4)(a) – Have the provisions of the Act been complied with? [7] On 19 December 2003, the Mining Registrar, Rockhampton District, issued a Certificate of Application1 which was accepted by the Applicants. Pursuant to s. 252(1) of the Act, the Mining Registrar can only issue a Certificate of Application 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. [8] I note that the underlying tenure is a freehold property owned by the Applicants and that native title issues are not relevant. [9] 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? 1 I note that the Certificate of Application states that the Mining Lease Application is for silver ore, gold, diamond, sapphire and zircon. -- 2 of 5 -- [10] The Applicants’ evidence is that the land applied for is mineralised because of old diggings and recent finds of gold. I note in particular the extract from D.W. de Havelland’s “Gold and Ghosts”, Volume 3. As regards other minerals, I rely in particular on Mr Elliot’s evidence and long mining history. I accept the presence of platinum and osmoridium, and the likely presence, because of geological formation, of silver, diamond, sapphire and zircon. 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? [11] The material before me reveals the Applicants’ proposed mining operations and program, and shows appropriate development and utilisation of the gold resources within the area applied for. With respect to other minerals, the Applicants concede that they may not be present in sufficient quantities to be payable on a mineral by mineral basis. However, the presence of gold is payable and, in view of the Applicants’ long and distinguished mining industry history and service, I am satisfied of their ability to recover other minerals as part of their gold mining operations. 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? [12] 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? [13] The term sought for this mining lease is 20 years. The Applicants have fully explained the manner in which they wish to mine on their own property. In my view a term of 20 years is, in these circumstances, appropriate. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [14] Documents and evidence provided to the Tribunal indicate that the Applicants have the financial capabilities to carry on the mining operations. [15] From the material it is also beyond doubt that the Applicants have the necessary technical capabilities to carry on mining operations under the proposed mining lease. [16] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [17] With respect to this criterion, I also rely on the evidence relating to s. 269(4)(f) above. The additional information and statutory declaration by Mr Elliot says that no enforcement action has been taken against them. However, the Mining Registrar’s -- 3 of 5 -- report says that the Applicants have had two tenures cancelled for failure to lodge security deposit.2 [18] Mr Elliot’s evidence at the hearing on 2 March 2004 dealt specifically with this issue. His evidence is that in the late 1980’s and early in the 1990’s, the Applicants were part of a mining consortium, Queensland Sapphire Mining Company. There was a major falling out between the parties which resulted in litigation. The cancelled mining tenures were caught up in the fallout and litigation. The Applicants had completely forgotten that the two tenures had been cancelled. All relevant paperwork of the Applicants relating to those tenures was either given to solicitors or has been in the long past destroyed. Mr Elliot further explained that the Applicants had in fact obtained a Mining Lease over the subject land of the two mining claims some time after the tenures were cancelled and he had mined same in full compliance with the Act. On behalf of the Applicants, he apologised for the incorrect statements made in his Additional Information and Statutory Declaration. Mr Elliot further tendered details of the Applicants’ other mining tenures that they have successfully held.3 I note the Applicants long and distinguished history in the mining industry and specifically in mining associations. I accept Mr Elliot’s evidence of 2 March 2004. 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? [19] The Applicants held PP 80286. 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? [20] There is no evidence before me to suggest that the proposed operations do not conform with sound land use management. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [21] A draft environmental authority was issued on 22 December 2003, which requires the Applicants 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? [22] The material before me indicates that there are no public roads or other public utilities on the application area. There appears to be no endangered flora or fauna within the application area. The material presented before me also shows that there are no identified sites of historical interest or Aboriginal significance within the 2 MC5616 and MC5617 (Emerald Mining District) cancelled on 18 April 1990. 3 Exhibit 1. -- 4 of 5 -- application area. If any such sites are identified, strategies for protection or site avoidance can be implemented. [23] I am satisfied that the public right and interest will not be prejudiced should this mining lease be granted. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [24] In light of Mr Elliot’s evidence, there is no 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? [25] The materials show that the project is for the extraction of a potentially valuable resource in accordance with the environmental processes. The Application is without objection. I am satisfied that the proposed mining operation is an appropriate land use. Recommendation [26] 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 Mining Lease No. 80113 be granted over the entire application area for the purpose and term sought by the Applicant. -- 5 of 5 --