Darvell & Anor, Re [2003] QLRT 128

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re L.J. Darvell & Anor [2003] QLRT 128 PARTIES: In the matter of Application for Mining Lease No 60344 by Leonard John Darvell and Glen Andrew McMahon FILE NO/S: AML00111/2003 PROCEEDING: Application for Mining Lease DELIVERED ON: 28 October 2003 DELIVERED AT: Brisbane HEARING DATE: Heard on the Papers PRESIDING MEMBER: Smith DP ORDER/S: 1. Hearing dispensed with (at [4]) 2. I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that no grant proceed until all relevant processes under the Right to Negotiate Provisions of the NTA have been completed. (at [8]) 3. Subject to Order 2, I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Mining Lease No. 60344 be granted over the entire application area, for the purpose and term sought by the Applicants. (at [32]) CATCHWORDS: MINING – MINING LEASE – NATIVE TITLE – RECOMMENDATION Mineral Resources Act 1989, ss 245, 252, 269, 270, 276, 650 Native Title Act 1993 (Cwlth) part 2, division 3, subdivision P 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, considered -- 1 of 5 -- COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: N/A [1] SMITH DP: On 7 July 2003 Leonard John Darvell and Glen Andrew McMahon (hereafter referred to as “the Applicants”) lodged Mining Lease Application No 60344 with the Mining Registrar, Quilpie 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 Applicants have 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. Although this application is over non-exclusive land, the provisions of Part 17, Division 4 of the Act do not apply as the Application was made post 31 March 2003.1 Native Title considerations that follow are dealt with at paragraphs 7 and 8 of these reasons. 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 Applicant Darvell dated 8 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 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. 1 See Section 650(1)(a) of the Act. -- 2 of 5 -- Native Title Considerations [7] The Application is over a pastoral holding.2 As previously discussed, Part 17 of the MRA does not apply to this Application. The Application is not subject to a relevant Indigenous Land Use Agreement. It follows that the provisions of part 2, division 3 , subdivision P of the Native Title Act 1993 (Cwlth) (hereafter referred to as “the Right of Grant to negotiate provisions of the NTA”) apply. [8] Consistent with the approach I have taken in matters subject to Indigenous Land Use Agreements,3 I see no reason to delay making my recommendation. However, it is also important, and I recommend to the Honourable the Minister for Natural Resources and Minister for Mines accordingly, that no grant proceed until all relevant processes under the Right to Negotiate provisions of the NTA have been completed. [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 7 July 2003, the Mining Registrar, Quilpie 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. [11] I note that the underlying tenure is a pastoral holding and that the right to negotiate provisions of the NTA apply. [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 Applicants’ evidence is that the land applied for is mineralised in light of surface indications. The application area is within a known mineral producing area. The Field Record of G.P.S. Observation of J.W. Barnes dated 1 October 2003 is consistent with what the Applicants say. [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 Applicants’ proposed mining operations and program, and shows appropriate development and utilisation of the mineral resources within the area applied for. 2 See the Mining Registrar’s Report of 6 October 2003. 3 See Re Gary Reginald Page [2002] QLRT 35. -- 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. Given the nature of the mining operations and the harsh weather conditions, 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 Applicants have the financial capabilities to carry on the mining operations. [19] I am also satisfied as regards the Applicants’ technical capabilities to carry on mining operations under the proposed mining lease in light of the evidence regarding their working of other leases. [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 Darvell has sworn that no enforcement action has been taken against either of the Applicants. The Mining Registrar’s report is consistent with what the Applicant Darvell 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 Applicants held PP 61113. The applicants for EPM 11831 and EPM 12272 have consented to the application. 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. -- 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 16 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. [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. [29] 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? [30] There was no evidence before me that indicated any good reason why this Application should be refused, subject to compliance with the Right to Negotiate provisions of the NTA. 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 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 and Minister for Mines that Mining Lease No. 60344 be granted over the entire application area for the purpose and term sought by the Applicants. -- 5 of 5 --