BHP Coal Pty Ltd & Ors (No 3), Re [2003] QLRT 106

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Coal Pty Ltd & Ors [No. 3] [2003] QLRT 106 PARTIES: In the Matter of Application for Mining Lease No. 70288 by BHP Coal Pty Ltd & Ors FILE NO/S: AML00044/2002 PROCEEDING: Application for mining lease DELIVERED ON: 14 October 2003 DELIVERED AT: Brisbane HEARING DATE: 7 October 2003 PRESIDING MEMBER: Smith DP ORDER/S: 1. I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Mining Lease No. 70288 be granted over the entire Application area, for the purpose and term sought by the Applicants. (at [34]) CATCHWORDS: MINING – MINING LEASE – NATIVE TITLE ISSUES – PREVIOUS ENCLOSURE POSSESSION ACTS – RECOMMENDATION Mineral Resources Act 1989, ss. 245, 252, 269, 270, 276 Re BHP Coal Pty Ltd & Ors [2003] QLRT 52, referred to 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 Buka Minerals (Lady Loretta) Pty Ltd & Anor [2001] QLRT 62, distinguished COUNSEL: H. Fraser QC and D. Clothier for the Applicants SOLICITORS: Blake Dawson Waldron, Solicitors, for the Applicants AGENT: N/A -- 1 of 13 -- [1] SMITH DP: On 3 December 2002 BHP Coal Pty Ltd, UMAL Consolidated Pty Ltd, QCT Management Limited, QCT Investments Pty Ltd, QCT Mining Pty Ltd, BHP Queensland Coal Ltd and Mitsubishi Development Pty Ltd (“the Applicants”) lodged Mining Lease Application No. 70288 with the Mining Registrar, Emerald District. The Application was lodged pursuant to s. 245 of the Mineral Resources Act 1989 (“the Act”) for coal mining and infrastructure purposes. [2] No objections were duly lodged to the Mining Lease Application. [3] On 20 May 2003 I refused the Applicants’ request that the Application be dealt with without an oral hearing, pursuant to s. 270 of the Act.1 The Hearing [4] On 7 October 2003 the matter was heard by a Panel constituted by President Koppenol and myself. The decision was reserved. The matter was subsequently reallocated to myself. [5] Affidavit evidence from Lucy Elizabeth Bretherton, solicitor (“the Bretherton affidavit”) and Earl John Woolley (“the Woolley affidavit”) both sworn on 7 October 2003 was given. [6] In taking account of and considering the criteria specified in s. 269(4) of the Act, I have relied on the Woolley affidavit, the Bretherton affidavit, and the Additional Information and Statutory Declaration of Ian Kilgour sworn on behalf of the Applicants on 15 July 2002. I have also relied upon the other material lodged by the Applicant 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. [7] 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 [8] The Application area in this matter falls within the boundaries of a Native Title Claim.2 The Tribunal has been provided with a copy of the Native Title Claim. The Native Title Claim does not cover all the land within its application area. Significantly, there are exclusions which are stated in the following terms:- ˝2. Subject to paragraphs 4 and 5, the area covered by the application exclude any land or waters which is presently or was previously covered by – (a) a scheduled interest; (b) a freehold estate (including any right in land or waters taken to be the vesting of a freehold estate by virtue of subsection 23B(3)); (c) a commercial lease that is neither an agricultural lease nor a pastoral lease; (d) an exclusive agricultural lease or an exclusive pastoral lease; (e) a residential lease; (f) a community purpose lease; 1 See Re BHP Coal Pty Ltd & Ors [2003] QLRT 52. 2 QC 01/25. -- 2 of 13 -- (g) a lease dissected from a mining lease referred to in subparagraph 23B(2)©(vii) of the Native Title Act 1993 (Cth); (h) any lease (other than a mining lease) that confers a right to exclusive possession over particular land or waters; which was validly granted or vested on or before 23 December 1996. 3. Subject to paragraphs 4 and 5, the land and waters the subject of the application excludes any area covered by the valid construction or establishment of any public work (as defined by the Native Title Act 1993 (Cth), where the construction or establishment of the public work commenced on or before 23 December 1996.˝ 3 [9] The key question then to be resolved is whether or not any of the land which makes up the application in this matter falls within one of the exclusions from the Native Title Claim. [10] The application area is made up of numerous tenures with a rather complex tenure history. The Bretherton affidavit sets out the relevant tenure history in a very detailed fashion, summaries of which are contained within two tables. For convenience, I include the tables in these reasons as Annexures 1 and 2. [11] In addition to the extensive material set out in the Bretherton affidavit, I also note and rely upon the evidence in the Woolley affidavit. Mr Woolley is employed by Queensland Rail as General Manager-Property. His evidence is that he is aware of certain railways known as the Goonyella to Hay Point railway line and the Goonyella to Riverside railway line. Mr Woolley’s evidence relates to Lots 7 and 8 on GV 88 (which subsequently became part of Lot 14 on GV 147), Lot 2 on GV 96, which lots form part of the Goonyella to Hay Point railway line, and Lot 2 on GV 211 and Lot 2 on GV 212, which lots form part of the Goonyella to Riverside railway line. Mr Woolley’s evidence is that the Goonyella to Hay Point railway line was constructed on behalf of Queensland Rail and officially opened to traffic on 5 November 1971 and has been used as railway since that time. As regards the Goonyella to Riverside railway line, Mr Woolley’s evidence is that that railway line was also constructed on behalf of Queensland Rail and was officially opened to traffic on 25 August 1983 and has also been used as railway since that time. [12] Mr Woolley’s evidence is also that the whole of the areas of the relevant lots referred to in paragraph [11] above were used during the construction, and continue to be used for the operation of, the respective railway lines. [13] In light of the evidence contained in the Bretherton affidavit and Woolley affidavit, I agree with the submissions of Mr Fraser QC.4 All of the land contained within the mining lease application area within the Native Title Claim area is, for native title purposes, a previous exclusive possession act, and pursuant to the exclusions from the Native Title Claim set out in paragraph [8] hereof, not subject to the Native Title Claim. [14] The remaining native title issue relates to the applicability, if any, of a decision by President Koppenol of this Tribunal in Re Buka Minerals (Lady Lorretta) Pty Ltd & Anor [2001] QLRT 62. As set out in my earlier decision,5 the Applicants had previously made submissions that I make a decision inconsistent with the decision of President Koppenol in Re Buka. However, the submissions of Mr Fraser QC alter this 3 National Native Title Tribunal extract claim QC01/25 p. 2. 4 See Submissions paragraph 33-42. 5 See Re BHP Coal Pty Ltd & Ors [2003] QLRT 52 at [12]. -- 3 of 13 -- position. In now distinguishing Re Buka on the facts of this case, Mr Fraser QC submits as follows:-6 ˝45. Here, the extinguishment arguments advanced by the Applicants do not require an examination of factual issues. They simply require an examination of the application of the native title legislation. As the decision in Ward indicates, in a case where past events and the native title legislation operate to entirely extinguish any native title which may have existed over land, whatever the incidents of it, it is possible to make findings about the existence of native title without having to identify the content of the native title in question. 46. In the present case the relevant question is whether native title exists, not whether it has been extinguished. In some cases it may be necessary to determine whether native title has been extinguished in order to determine whether it exists. However in other cases (of which, it is submitted, this is one) it is possible to determine whether native title exists without determining whether it has existed in the past and been extinguished. That will most commonly be so where, on any view of the facts, native title no longer exists. This is such a case. Either native title did not exist over all or part of the land the subject of the applications or it did exist and has been extinguished on the proper construction of the native title legislation. Consequently, a determination that native title does not exist over the application area does not require findings as to the content of any native title which may have once existed over it.˝ I agree with Mr Fraser’s submissions. [15] In light of the above, native title issues pursuant to the Act are not relevant. Section 269(4)(a) – Have the provisions of the Act been complied with [16] On 11 December 2001, the Mining Registrar, Emerald 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 has complied with the requirements of the Act with respect to the Application. [17] In my opinion, there is sufficient evidence of compliance with the provisions of the Act in Respect to this Application. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [18] The Applicants’ evidence is that part of the land applied for is mineralised. Mr Kilgove says that exploration activities have shown coal reserves on the eastern side of the application area. I note that this application forms part of the already operational large Goonyella Mine. Apart from relevant mining for coal, the application area is required for infrastructure purposes and access road, all of which I consider appropriate. 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? [19] 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. 6 Submissions paragraphs 45 and 46. -- 4 of 13 -- 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? [20] 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. The application area forms an important part of the Goonyella Mine. Section 269(4)(e) – Is the term sought appropriate? [21] The term sought in the Application for this mining lease is 20 years. In my view, a term of 20 years is appropriate, given the nature and size of the Goonyella Mine. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [22] Documents and evidence provided to the Tribunal leave me in no doubt that the Applicants have the financial and technical capabilities to carry on the mining operations. This application forms part of existing major mining operations. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [23] With respect to this criterion, I also rely on the evidence relating to s. 269(4)(f) above. [24] The evidence of Mr Kilgour for the Applicants is that neither the Applicants nor their directors have had any show cause notice, conviction, penalty, or tenure cancelled under the Mineral Resources Act 1989 or the Mining Act 1968, and that the Applicants have complied with all requirements for existing leases. The Mining Registrar’s report is consistent with Mr Kilgour’s evidence. 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? [25] The Applicants held PP 71412, PP 71413, PP 71415 and PP 71416. There in 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? [26] 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? [27] An extensive environmental authority was issued on 17 May 2002. I note that there are no objections to the terms of the draft environmental authority. There is no evidence to suggest that the environmental impacts will not adequately be dealt with by compliance with the environmental authority. Section 269(4)(k) – Will the public right and interest be prejudiced? -- 5 of 13 -- [28] The material before me indicates that there are no public roads or other public utilities on the Application area. [29] There appears to be no endangered flora or fauna with the Application area. [30] 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 their 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. [31] 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? [32] 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? [33] The material shows that the project is part of the large scale Goonyella Mine. The Application is without objection. I am satisfied that the proposed mining operation is an appropriate land use. Recommendation [34] Taking into account all of the evidence before me and, in particular, that evidence referred to above, I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Mining Lease No. 70288 be granted over the entire Application area for the purpose and term sought by the Applicants. -- 6 of 13 -- Annexure 1 TENURE HISTORY TABLE (CHRONOLOGICAL) OF LAND UNDERLYING MINING LEASE APPLICATIONS 70287 & 70288 – BRETHERTON AFFIDAVIT No. Date Tenure/Lot Event Supporting documents 1. 1918/1919 Lot 1 on GV 14 Lot created (Teviot Brook Holdings) Plan GV 14 2. 1923 Lot 11 on GV 23 Plan prepared showing portion (Picardy) with surrounding lots including Lots 1 and 2 on GV 14 Plan GV 23 3. 13/11/69 Lot 2 on GV 38 Lot created from land surrendered from Teviot Brook Holdings. The plan shows the area as 763 acres 1 rood/ 308.88 hectares Plan GV 38; Teviot Brook Holding notation 4. 26/09/70 Government Gazette proclamation – 3 areas of Portion 1 Teviot Brook Holding (Lot 1 on GV 14) taken by the Commissioner for Railways for the purpose of the Hay Point to Goonyella Railway, vesting in the Commissioner for Railways from 26/09/70 There is a corresponding notation for the resumption for railway purposes on the lease for Teviot Brook Holdings The 3rd area described in the proclamation was subsequently surveyed on Plan GV 72 as the area resumed from Lot 1 on GV 14 containing an area of 19 acres 19 perches/7.737 hectares. The area is not described as Lot 4 on GV 72. (See 11 and 12 below.) Government Gazette 26/09/70, pages 319 & 320; Teviot Brook Holdings lease notation; Letter from QR dated 25/08/03 re Ref. No. 118 and relevant sketch map 5. 26/03/71 Lot 7 on GV 67 Lot created. Area: 9 acres 2 roods 33 perches/ 3.8 hectares. (This is outside the boundaries of the Mining Lease applications but is relevant to the grant of SL 30/36458 – seek 19 below) Plan GV 67 6. 26/03/71 Lot 3 on GV 50 Lot created. Plan indicates area as 221 acres 3 roods 20 perches/ 89.8 hectares. (This is outside the boundaries of the Mining Lease applications but is relevant to the grant of SL 30/36458 – see 19 below). Plan GV 50 7. 26/03/71 Lot 4 on GV 51 Lot created from area surrendered from Teviot Brook Holdings (Lot 1 on GV 14). Area: 123 acres 3 roods 13 perches less 1 rood 33 perches railway reserve, ie, a balance of 123 acres 1 rood 20 perches/ 49.9 hectares (The area of the excluded railway reserve was subsequently surveyed as Lot 2 on GV 96 – see 16 below) Plan GV 51; Email from QR dated 39/09/03 8. 28/05/71 Notice of Intention to Resume dated 28/05/71 served on “the proposed lessee” of Portion 2 (ie, Lot 2 on GV 38) in respect of approx 15 acres 1 rood 8 perches/6/192 hectares. The taking of this land by proclamation did not proceed and the Notice of Intention to Resume lapsed. The land was vacant Crown land. Advice received by QR from the Department of Lands at the time the Notice was served reveals that a Special Lease (ie, SL 30/36457) was in the process of being granted. The Department of Lands agreed to set aside the areas required for the railway as a reserve for railway purposes under the control of the Commissioner for Railways. The Department advised that the Special Lease to be granted would be exclusive of the proposed reserve. Letter from QR dated 25/09/03 re Ref. No. 121 and relevant sketch map 9. 24/06/71 1st railing on the Goonyella Hay Point Railway. This related to Lot 4 on GV 72 (but see 4 above and 12 below), the eastern part of the rail loop (see 13 below), Lots 7 and 8 on GV 88 (see 14 below) and Lot 2 on GV 96 (see 16 below) Affidavit of Eric Woolley; Email from QR dated 30/09/03 -- 7 of 13 -- No. Date Tenure/Lot Event Supporting documents 10. 05/11/71 Line section opening of the Goonyella Hay Point Railway. Affidavit of Eric Woolley 11. 1971/1972 GV 72 Plan prepared for the resumption of areas from Lot 2 on GV 38 (14 acres 23 perches) and Lot 1 on GV 14 (19 acres 19 perches) for railway. The area resumed from Lot 2 on GV 38 became Lots 7 and 8 on GV 88. (See 14 below) The area resumed from Lot 1 on GV 14 became Lot 4 on GV 72. (See 4 above) Plan GV 72 12. 10/02/72 Lot 4 on GV 72 Lot created (for railway). Area: 19 acres 19 perches/ 7.737 hectares. (See 4 and 11 above) Plan GV 72 13. 13/05/72 Government Gazette proclamation – an area of 13 acres 22.8 perches/ 5.317 hectares, being part of SCML 127 and shown on Plan Clt, M54, is taken by The Commission for Railways for the purpose of the Hay Point to Goonyella Railway and vests in the Commissioner for Railways as from 13/05/72. There is also a notation on map on SCML 127 showing the area of 13 acres 23 perches as being surrendered from the mining lease for railway purposes. The plan on the notation shows that the area is the eastern side of the rail loop. Government Gazette 13/05/72, page 233; Plan Clt.M.54; Letter from QR dated 25/09/03 re Ref. No. 122 and relevant sketch map; Notation on SCML 127 14. 28/08/72 Lots 7 and 8 on GV 88 Lots created. Plan shows Lot 7 (1 acre 3 roods 20.4 perches) and Lot 8 (12 acres 1 rood 2.6 perches) as being excluded from Lot 2 on GV 104. The total area excluded is 14 acres 23 perches/ 5.723 hectares, ie, the area indicated in Plan GV 72. (See 12 above) Plan GV 88 Plan GV 104 15. 21/10/72 Government Gazette proclamation – areas of 1 acre 3 roods 20.4 perches/ 0.76 hectares (Lot 7 on GV 88) (R.16) and 12 acres 1 rood 2.6 perches/ 4.963 hectares (Lot 8 on GV 88 (R.17) are reserved and set apart for railway purposes and placed under the control of the Commissioner for Railways. This proclamation relates to the western side of the rail loop. (See 14 above) Plan GV 88; Government Gazette 21/10/72, page 769 16. 24/11/72 Lot 2 on GV 96 Lot created from area resumed from Lot 4 on GV 51. Area: 2 roods 5.8 perches. This lot is the area where the road intersects with the Goonyella Hay Point Railway. Plan GV 96 17. 23/01/73 Lot 2 on GV 104 Lot created from Lot 2 on GV 38 after the exclusion of Lots 7 and 8 on GV 88 (see 14 above). Area: 749 acres 17 perches/303.15 hectares. (Plan GV 104 was prepared after the commencement date of SL 30/36457 (see 18 below) and includes a notation that the previous area of SL 30/36457 was 763 acres 1 rood, ie, the total area of Lot 2 on GV 38 including the railway reserve areas. However, see 8 above3 regarding the history relating to the areas of the railway reserves) Plan GV 104 18. Signed 19/04/73 (but starting 01/04/71) SL 30/36457 (“industrial (Tailings Area) purposes”) granted over 749 acres 17 perches/303.15 hectares (Lot 2 on GV 104). (See 8 and 17 above) SL 30/36457 19. Signed 03/05/73 (but starting 01/04/71) SL 30/36458 (“business (private road) purposes”) granted over 354 acres 3 roods 33.1 perches/ 143.5 hectares (excluding railway). This is the total of the areas of Lot 7 on GV 67 (see 5 above), Lot 3 on GV 50 (see 6 above) and Lot 4 on GV 51 (see 7 above), excluding the railway reserve, ie, Lot 2 on GV 96 (see 16 above). (See also 29 below) Note: Only Lot 4 on GV 51 is included in the area of the Mining Lease applications. SL 30/36458; Email from QR dated 30/09/03 20. 10/06/75 Lot 2 on GV Lot created by including an area from SCML 127 into Plan GV 127 -- 8 of 13 -- No. Date Tenure/Lot Event Supporting documents 127 Lot 2 on GV 104. Plan GV 127 shows Lot 2 on GV 127 with an area pre- 1975 of 749 acres 17 perches/303.15 hectares excluding Lots 7 and 8 on GV 88 and with an area in 1978 of 347.5 hectares excluding Lots 7 and 8 of GV 88 and railway area (ie, the eastern part of the railway loop) of 11.04 hectares. The additional area, (ie, the area added to what was previously Lot 2 on GV 104) is 44.35 hectares. 21. 30/06/78 Lot 14 on GV 147 Lot created by amalgamating Lots 7 and 8 on GV 88 (see 14 and 15 above) and the eastern part of the rail loop (see 13 above). The plan shows it’s the total rail loop area. The area of the rail loop is 11.04 hectares, the same area excluded from Lot 2 on GV 127 (see 20 above) Plan GV 147 22. Order made 16/11/78 (but effective 01/01/76) 44.347 hectares included in SL 30/36457. Total area: 347.5 hectares. (See 20 above) The notation on SL 30/36457 states that Plan GV 127 is substituted for Plan GV 104. This inclusion of area corresponds with a notation for a surrender of land for inclusion in SL 30/36457 noted on the Teviot Brook Holdings lease. SL 30/36457 notations; Teviot Brook Holdings lease notation 23. 03/03/79 Government Gazette proclamation – area of 6.077 hectares to be added to the railway reserve R.17 which was gazetted 21/10/72 (area: 4.963 hectares). In other words, the area of Lot 7 on GV 88 (R.16) and the eastern part of the rail loop are included in R.17, ie, Lot 14 on GV 147. R.17 has an amended area of 11.04 hectares as shown on Plan GV 147. (See 21 above) The area of 6.077 hectares is the total area of R.16 (Lot 7 on GV 88) (0.76 hectares) and the area vested in the Commissioner for Railways on 13/05/72 (5.317 hectares) Government Gazette 03/03/79, page 760 24. 01/01/80 Surrender of an area from SL 30/36457. Remaining area of SL 30/36457: 303.153 hectares. (See 25 and 26 below) Notation on SL 30/37457 25. 1980 (approx) Lot 12 on GV 167 Lot created from the area excluded from SL 30/36457. Area: 44.38 hectares. (See 24 above) This is the same area that was included in SL 30/36457 when Lot 2 on GV 127 was created. (See also 20 and 22 above) Plan GV 167 26. 1980 (approx) Lot 2 on GV 167 Lot created from Lot 2 on GV 127 after the exclusion of Lot 12 on GV 167. Area: 303.153 hectares. (See 24 above) Plan GV 167 27. 1980 (approx) Road (60 metres wide – through part of the Teviot Brook Holding) created by its indication on Plan GV 167. Plan GV 167 28. Signed 12/02/81 (but starting 01/01/80) SL 30/43382 for “industrial purposes” granted over 44.38 hectares (Lot 12 on GV 167) (see 25 above) SL 30/43382 29. 1981 Lot 4 on GV 174 Lot created from Lot 4 on GV 51 after excluding 4.848 hectares and 3.778 hectares (total: 9.626 hectares) and adding 5.529 hectares and 2.753 hectares (total: 8.282 hectares) from Teviot Brook Holding (Lot 1 on GV 14). The creation of this lot is to alter, ie, to slightly straighten, the lot which is the Goonyella Access Road (see 19 above). The difference in area is 1.344 hectares. There is a later corresponding notation on SL 30/36458 confirming the surrender of an area and the inclusion of Plan GV 174; SL 30/36458 notation; Email from QR dated 30/09/03 -- 9 of 13 -- No. Date Tenure/Lot Event Supporting documents an area from the adjoining Teviot Brook holding (see 42 below) 30. 24/04/82 .05 hectares excluded from SL 30/43382 (Lot 12 on GV 167) for railway purposes. (See 35 below) SL 30/43382 notation 31. 24/04/82 Area excluded from SL 30/36457 (Lot 2 on GV 167) for railway purposes. The area remaining in SL 30/36457 is 296.644 hectares. (See 36 below) SL 30/36457 notation 32. 21/09/82 Lot 13 on GV 201 Lot created from an area excluded from Lot 1 on GV 14. Area: 220.437 hectares, less 7.737 hectares for railway (ie, the area of lot 4 on GV 72), ie, a balance of 212.7 hectares Plan GV 201 33. 25/08/93 Line opening of the Goonyella Riverside Railway. This affects Lot 2 on GV 211 (see 34 below), Sub 4 on GV 212 (see 35 below) and Sub 2 on GV 212 (see 36 below) Affidavit of Eric Woolley 34. 26/10/93 Lot 13 on GV 211 (and Lot 2 on GV 211) Lot created from Lot 13 on GV 201 after the exclusion of 9889 sq metres for the Riverside Branch Railway. (The excluded area is shown on Plan SP 138791 as Lot 2 on GV 211). Plan GV 211; Plan SP 138791 35. 26/10/83 Sub 4 on GV 212 Lot created from the area excluded from SL 30/43382 (Lot 12 on GV 167). Area: 5015 sq metres. (See 30 above) This is the area at the north western corner of Lot 12 on GV 167, required for the Riverside Branch Railway. Plan GV 212 36. 26/10/83 Sub 2 on GV 212 Lot created from the area excluded from SL 30/36457 (Lot 2 on GV 167). This land is part of the Riverside Branch Railway. Plan GV 212 37. 26/10/83 Lot 12 on GV 213 Lot created from Lot 12 on GV 167 after the exclusion of Sub 4 on GV 212. (See 35 above) Area of Lot 12 on GV 213: 49.1975 hectares, less 5.319 hectares for part of R.17 on Plan GV 147 for railway, ie, a balance of 43.87856 hectares. Plan GV 213 38. 1983 (approx) Lot 2 on GV 216 Lot created from Lt 2 on GV 167 after the exclusion of Sub 2 on GV 212. (See 36 above) Area: 296.644 hectares, the same area as noted on SL 30/36457 after the exclusion in 31 above. Plan GV 216 39. 1983 (approx) Lot 13 on GV 217 Lot created from Lot 13 on GV 201 after the exclusion of the area shown as Lot 2 on GV 211 (see 34 above) for the Riverside Branch Railway. Area of Lot 13 on GV 217: 220.437 hectares, less 8.7259 hectares for railway, ie, a balance of 211.7111 hectares. The difference between the area of Lot 13 on GV 201 and Lot 13 on GV 217 is 9889 sq metres, the area of Lot 2 on GV 211. (See 32 and 34 above) Plan GV 217; Plan GV 211 40. 1983 (approx) Lot 2 on GV 229 Lot created by amalgamating Lot 2 on GV 216 (see 39 above) and Lot 13 on GV 217 (see 39 above). Area: about 497 hectares, the same areas as that shown for SL 30/36457 (see 43 below). However, the area of Lot 2 on GV 229 is stated to be exclusive of road, railway and part of Lot 8 on GV 147. Plan GV 229 41. 1983 (approx) Road (60 metres wide) created by its indication on Plan GV 229. Plan GV 229 42. 01/07/94 Surrender of an area and inclusion of an area in SL 30/36458. The total difference in area is 1.344 hectares. The notation confirms that Lot 4 on GV 174 is now included in SL 30/36458. (See 29 above) Notation on an amendment to plan on SL 30/36458 43. Order made 13/03/86 Area of Crown land included in SL 30/36457. SL 30/36457 notation; -- 10 of 13 -- No. Date Tenure/Lot Event Supporting documents (but effective 01/01/83) The notation on SL 30/36457 notes that Plan GV 229 is substituted for Plan GV 216 and that the area of SL 30/36457 is about 497 hectares (see 40 above) Plan GV 229 44. 06/09/86 Exclusion of area from SL 30/36457 (Lot 2 on GV 229). The notation states that the area of SL 30/36457 is now Lot 2 on GV 314 (see 46 below) Notation on SL 30/36457 45. 14/09/87 Lot 15 on GV 315 Lot created from the area (500 sq metres) excluded from Lot 2 on GV 229 (see 44 above) Plan GV 315 46. 15/09/87 Lot 2 on GV 314 Lot created from Lot 2 on GV 229 after the exclusion of Lot 15 on GV 315 (see 44 and 45 above). Area of Lot 2 on GV 314 remains at “about 497 hectares”. Plan GV 314 47. 20/01/95 Exclusion of an area from SL 30/36457 (Lot 2 on GV 314). The notation on SL 30/36457 states that the exclusion is effective from 10/12/93 and that the area of SL 30/36457 is now Lot 2on CP 884238 (see 49 below) Notation on SL 30/36457 48. 14/12/94 Lot 16 on CP 884238 Lot created from the area (400 sq metres) excluded from Lot 2 on GV 314 (see 47 above) Plan CP 884238 49. 14/12/94 Lot 2 on CP 884238 Lot created from Lot 2 on GV 314 after the exclusion of Lot 16 on CP 884238 (see 47 and 48 above). Area of Lot 2 on CP 884238 remains at “about 497 hectares”. Plan CP 884238 50. 18/01/01 (approx) Lot 20 on SP 129981 Lot created from amalgamating Lot 4 on GV 72 (see 12 above), Lot 14 on GV 147 (see 21 above), Lot 2 on GV 211 (see 34 above), Lots 2 and 4 on GV 212 (see 35 and 36 above), Lot 15 on GV 315 (see 45 above) and Lot 16 on CP 884238 (see 48 above) Plan SP 129981 51. 13/02/01 (approx) Lot 2 on SP 138791 Lot created after the closure of a road on Lot 2 on CP 884238 (see 41 and 49 above). Area of Lot 2 on SP 138791: 520.3 hectares. Plan SP 138791 -- 11 of 13 -- Annexure 2 TENURE HISTORY TABLE (BY EXTINGUISHING EVENT) FOR LAND UNDERLYING MINING LEASE APPLICATIONS 70287 & 70288 – BRETHERTON AFFIDAVIT No. Date Extinguishing Event Lots Affected Additional Supporting Documents (other than the plans for the lots affected) Current description Previous descriptions¹ 1. 26/09/70 The taking of land by proclamation and its vesting in fee simple in the Commission for Railways Part of Lot 20 on SP 129981 Lot 4 on GV 72 (ie, the area shaded green in Map 1) Government Gazette 26/09/70, pages 319 & 320; Teviot Brook Holdings lease notation; Letter from QR dated 25/09/03 re Ref. No. 118 and relevant sketch map 2. 24/06/71 1st railing on the Goonyella Hay Point Railway Part of Lot 20 on SP 129981 Lot 4 on GV 72 (but see 1 above); Lot 7 on GV 88 (ie, the part of the rail loop area shaded green in Map 2 in the south eastern corner of Lot 2 on GV 167; Lot 8 on GV 88 (ie, the other part of the rail loop within the boundaries of lot 2 on GV 167 shaded green in Map 2); Lot 2 on GV 96 (ie, identified in Map 2 as Sub 2 – the area where the railway intersects with the Goonyella Access Road); Lot 14 on GV 147 (ie, the rail loop area shaded green in Map 2, but excluding the area of Lot 4 on GV 72) Affidavit by Eric Woolley 3. 13/05/72 The taking of land by proclamation and its vesting in fee simple in the Commission for Railways Part of Lot 20 on SP 129981 Part of Lot 14 on GV 147 (ie, the eastern side of the Goonyela Hay Point Railway loop, shaded green in Map 3) (but see 2 above) Government Gazette 13/05/72, page 233; Plan Clt. M.54; Letter from QR dated 25/09/03 re Ref. No. 122 and relevant sketch map; Notation on SCML 127. 4. 19/04/73 The grant of Special Lease 30/36457 for “industrial (Tailings Area) purposes” (stated to commence from 01/04/71) Part 2 of Lot 2 on SP 138791 Lot 2 on GV 104; and Lot 2 on GV 167 (ie, previous descriptions for the area shaded green in Map 4) Special Lease 30/36457 5. 03/05/73 The grant of Special Lease 30/36458 for “business (private road) purposes” (stated to commence from 01/04/71) Part of Lot 4 on GV 174 Lot 4 on GV 51 (ie, the area shaded green in Map 5) Special Lease 30/36458 -- 12 of 13 -- No. Date Extinguishing Event Lots Affected Additional Supporting Documents (other than the plans for the lots affected) Current description Previous descriptions¹ 6. 16/11/78 Area added to Special Lease 30/36457 (stated to take effect from 01/01/76) Lot 12 on GV 213; and part of Lot 20 on SP 129981 Lot 12 on GV 167 (ie, the area shaded green in Map 6); Sub 4 on GV 212 (ie, the north western corner of Lot 12 on GV 167, as shown shaded in green in Map 9) SL 30/36457 notations; Teviot Brook Holdings lease notation 7. 1980 (approx) Dedication of a road, by being shown in Plan GV 167 Part of Lot 2 on SP 138791 Part of Teviot Brook Holding (ie, the area shaded green in Map 7) Plan GV 167 8. 12/02/81 The grant of Special Lease 30/43382 for “Industrial purposes” (stated to take effect from 01/01/80 Lot 12 on GV 213; and part of Lot 20 on SP 129981 Lot 12 on GV 167 (but see 6 above); Sub 4 on GV 212 (but see 6 above) Special Lease 30/43382 9. 25/08/83 Line opening of the Goonyella Riverside Railway Part of Lot 20 on SP 129981 Sub 2 on GV 212 (ie, the area within the boundaries of Lot 2 on GV 167 shaded green in Map 9); Sub 4 on GV 212 (ie, the small area in the north western corner of Lot 12 on GV 167 shaded green in Map 9) (but see 6 above) Lot 2 on GV 211 (ie, the silver of land shaded green in Map 9, in the area south of Lot of Lot 2 on GV 167) Affidavit of Eric Woolley 10. 1983 (approx) Dedication of a road, by being shown in Plan GV 229 Part of Lot 2 on SP 138791 Shown in Plan GV 229; Shown in Plan GV 314; 11. 01/07/84 Area added to Special Lease 30/36458 Lot 4 on GV 174 Part (most) of Lot 4 of GV 51 (ie, the area shaded green in Map 11 and, within the application area, identical to the area shaded green in Map 5) Notation on and amendment to plan on SL 30/36458 12. 13/03/86 Area added to Special Lease 30/36457 (stated to take effect from 01/01/83) Part of Lot 2 on SP 138791 Lot 13 on GV 217, (ie, the area shaded green in Map 12) SL 30/36457 notation; Plan GV 229 -- 13 of 13 --