Cody, Re [2003] QLRT 136

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re R. & R.W. Cody [2003] QLRT 136 PARTIES: In the matter of Application for Mining Lease No 95392 by Ronald Cody and Robert William Cody FILE NO/S: AML00094/2003 PROCEEDING: Application for Mining Lease DELIVERED ON: 11 November 2003 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 and Minister for Mines that such exclusion zones and recommendations be included as special conditions of the grant. It is also implicit in this recommendation that no grant proceed until all relevant processes under the Winton ILUA have been completed. (at [8]) 3. Due to the inconsistencies between the Application and the Winton ILUA, I direct the Registrar of the Land and Resources Tribunal to provide a copy of these reasons to the Native Title Group as set out in the Winton ILUA and to the Gurang Land Council Aboriginal Corporation forthwith. (at [9]) 4. Subject to Orders 2 and 3, I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Mining Lease No. 95392 be granted over the entire application area, for the purpose of mining for opal only, for a term of 10 years. (at [32]) -- 1 of 6 -- CATCHWORDS: MINING – MINING LEASE –NATIVE TITLE – INDIGENOUS LAND USE AGREEMENT (ILUA) – INCONSISTENCIES WITH ILUA – OPAL MINING ONLY – 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 COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: N/A [1] SMITH DP: On 16 July 2003 Ronald Cody and Robert William Cody (hereafter referred to as “the Applicants”) lodged Mining Lease Application No 95392 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 camp, water, garden and opal mining. [2] No objections were duly lodged to the Mining Lease Application. [3] The Applicants have requested that the Application be dealt with without an oral hearing, pursuant to s. 270 of the Act and have 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 Applicants 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 Ronald Cody dated 1 September 2003. I have also relied upon the other material lodged by the Applicants with the Department of Natural Resources and Mines and provided by the -- 2 of 6 -- Mining Registrar to this Tribunal, the Mining Registrar’s Report in relation to this Application, together with further information provided by the Mining Registrar by letter dated 3 November 2003. 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 Applicants before the grant can be made. I have closely considered those requirements and, provided they are all complied with, and subject to my comments below regarding the purpose for which the Application is sought, I see no reason why the grant cannot proceed.1 Naturally, great care must be taken by the Applicants 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. It is also implicit in this recommendation that no grant proceed until all relevant processes under the Winton ILUA have been completed. [9] As previously noted, this Application is for the purpose of “camp, water, garden, opal mining”.2 It is a requirement of the Winton ILUA that the mining lease be granted for the purpose of mining for opal only.3 I note the contents of the Mining Registrar’s letter of 3 November 2003 and other material contained within this application and accept that the Applicants intend to conduct mining operations on the application area. However, it is equally apparent that not only do the Applicants require the application area for the purpose of living on the subject land in a camp, but that they already have an established camp on the land. The material does not reveal on what authority such camp already exists. Clearly, to comply with the provisions of the Winton ILUA, the Mining Lease can be granted for the purpose of mining opal only. This Application proceeds on that basis. Due to the inconsistencies between the Application and the Winton ILUA, I direct the Registrar of the Land and Resources Tribunal to provide a copy of these reasons to the Native Title Group as set out in the Winton ILUA and to the Gurang Land Council Aboriginal Corporation forthwith. 1 See Re Gary Reginald Page [2002] QLRT 35. 2 See Mining Lease Application 16 July 2003, item 19 page 3. 3 See Winton ILUA clause 9.5(a)(i). -- 3 of 6 -- [10] 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? [11] On 16 July 2003, the Mining Registrar, Winton District, issued a Certificate of Application 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. [12] I note that the underlying tenure is a pastoral holding and that the native title issues are subject to the registered Winton ILUA.4 [13] In my opinion, there is sufficient evidence of compliance with the provisions of the Act in respect to this Application. Further, and importantly in this matter, 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? [14] The Applicants’ evidence is that the land applied for is mineralised. Ronald Cody deposes that the application area contains old diggings, scattered opal trace and exposed sandstone levels. The application area is within a known mineral producing area. Accordingly, I am satisfied that the land applied for is mineralised. [15] As previously discussed, in order to comply with the provisions of the Winton ILUA, this application can be granted for the purpose of mining for opal only. 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? [16] The material before me reveals the Applicants’ proposed mining operations and program, and shows appropriate development and utilisation of the mineral resources within the area applied for. 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? [17] 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? [18] The term sought for this mining lease is 10 years. I note that harsh weather conditions prevent year round mining.5 The Winton ILUA allows mining leases to 4 See the Mining Registrar’s Report. 5 See Re Joseph Michael Taranto [2002] QLRT 36 at 18. -- 4 of 6 -- 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? [19] Documents and evidence provided to the Tribunal indicate that the Applicants have the financial capabilities to carry on the mining operations. [20] From the material it is also apparent that the Applicants have the necessary technical capabilities to carry on mining operations under the proposed mining lease after many years experience. [21] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [22] With respect to this criterion, I also rely on the evidence relating to s. 269(4)(f) above. The material and evidence provided by the Applicants says that no enforcement action has been taken against them in their 20 years of mining. The Mining Registrar’s report is consistent with the Applicants’ material. 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 Applicants held PP 96024 and EPM 11871. 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. 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 21 July 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? [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. -- 5 of 6 -- [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 also note the requirements of various enactments protecting cultural heritage and note the requirements on the Applicants pursuant to that legislation to protect any sites of significance should they be located during the mining operations. I further note the specific requirements on the Applicants 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 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 Orders 2 and 3, I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Mining Lease No. 95392 be granted over the entire application area for the purpose of mining for opal only, for a term of 10 years. -- 6 of 6 --