Armstrong & Anor v Miles & Ors [2002] QCA 504 [2004] 1 Qd R 481

SUPREME COURT OF QUEENSLAND CITATION: Armstrong & Anor v Miles & Anor [2002] QCA 504 PARTIES: DEAN LINSAY ARMSTRONG LISA MAREE ARMSTRONG (applicants/appellants) v PHILIP MICHAEL MILES (first respondent/first respondent) MINING REGISTRAR (EMERALD) (second respondent) MINISTER FOR NATURAL RESOURCES AND MINES (third respondent) CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY (fourth respondent/second respondent) FILE NO/S: Appeal No 2659 of 2002 APTP No 00001 of 2002 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Land and Resources Tribunal at Brisbane DELIVERED ON: 22 November 2002 DELIVERED AT: Brisbane HEARING DATE: 14 November 2002 JUDGES: McPherson and Davies JJA and Dutney J Separate reasons for judgment of each member of the Court; each concurring as to the orders made ORDER: 1. Appeal dismissed. 2. Appellants to pay the first respondent's costs. CATCHWORDS: MINING LAW - GENERAL MATTERS - DEFINITIONS - whether the definition of "mine" in the Mineral Resources Act 1989 (Qld) should be limited by excluding from its ambit the winning of mineral from a place where it is only for the purpose of sampling or testing MINING LAW - LEGISLATION RELATING TO MINING FOR MINERALS - MINER'S RIGHTS AND MINING LICENCES, TENURES AND INTERESTS - MINING ON PRIVATE PROPERTY AND RESUMPTION FOR MINING PURPOSES - AUTHORITY, LICENCE OR PERMIT TO ENTER AND PROSPECT - QUEENSLAND - where the -- 1 of 5 -- 2 first respondent applied for a mining lease on land owned by the appellants - where the appellants objected to this application - whether the application proposes activities which constitute mining - whether the application should have been granted Mineral Resources Act 1989 (Qld), s 6A(1), s 234(1)(a) Gonzo Holdings No 50 Pty Ltd v McKie [1996] 2 QdR 240, applied COUNSEL: H J Zillman for the appellants A C Barlow for the first respondent No appearance on behalf of the second respondent SOLICITORS: Jensen Legal (Toowoomba) for the appellants No appearance on behalf of the first respondent No appearance on behalf of the second respondent [1] McPHERSON JA: I agree with the reasons of Davies JA. The appeal should be dismissed, with the appellants to pay the first respondent's costs. [2] DAVIES JA: On 9 April 2001 the first respondent Philip Michael Miles made an application, pursuant to s 245 of the Mineral Resources Act 1989 (Qld) for a mining lease on land owned by the appellants. The appellants objected to this application on grounds which included the following: "The application proposes activities which constitute exploration, not mining, therefore the provisions of the Mineral Resources Act have not been complied with and a mining lease cannot be lawfully granted." [3] The application was referred to the Land and Resources Tribunal.1 On 25 October 2001 Ms Kingham, a Deputy President of the Tribunal, after hearing evidence from the parties, made the following recommendations: "1. I recommend to the Honourable the Minister for Natural Resources and the Minister for Mines that this application for a Mining Lease be granted subject to the following recommendations: (a) that the lease be granted in relation to sapphire and zircon only; (b) that the lease be granted subject to the condition that the activities thereby authorised are those described in the Applicant's witness statement (filed with the Tribunal on 11 September 2001). at ([51]). 2. I recommend to the Honourable the Minister for Natural Resources and the Minister for Mines that the Environmental Authority be granted on the basis of the draft Environmental Authority subject to the following: (a) that my recommendation regarding the Mining Lease is adopted; 1 Mineral Resources Act s 268; Environmental Protection Act 1994 (Qld) s 219. -- 2 of 5 -- 3 (b) that a further condition be included in the Environmental Authority that, wherever practicable, any test slots are backfilled on the day they are excavated; and (c) that standard conditions 25, 26 and 27 from the Code of Environmental Compliance for Exploration and Mineral Development Projects be included in the Environmental Authority. at ([63])" [4] In reaching those conclusions Ms Kingham rejected the above ground of objection, holding that those activities were for the purpose of mining minerals within the meaning of s 234(1)(a) of the Mineral Resources Act. [5] The appellants sought leave to appeal against that decision but on 20 February 2002 the President of the Tribunal refused such leave.2 This is an appeal from that refusal. Such an appeal is limited to a question of law.3 [6] There are, effectively, only two parties to this appeal, the appellants and the first respondent. The second respondent, the Chief Executive, Environmental Protection Agency, has indicated that he does not wish to participate in the appeal and that he will submit to any order of the Court other than one for costs against him. [7] Mr Zillman, who appeared for the appellants, described the question of law as whether the definition of "mine" in s 6A(1)(a) of the Mineral Resources Act should be limited by excluding from its ambit the winning of mineral from a place where it occurs where that is for the purpose of sampling or testing only. He submitted that it should be so limited and that, as the activities proposed by the first respondent were for those purposes only, they were not for the purpose of mining minerals within the meaning of s 234(1)(a). That question arises in the following way. [8] The term "mine" is defined in s 6A(1) to mean "to carry on an operation with a view to, or for the purpose of - (a) winning mineral from a place where it occurs; or (b) extracting mineral from its natural state; or (c) disposing of mineral in connection with, or waste substances resulting from, the winning or extraction." The section goes on to describe what extracting includes and excludes and what disposing includes. But the focus here is on subsection (1)(a). [9] The term "explore" is defined in the schedule to the Act to mean "take action to determine the existence, quality and quantity of minerals on, in or under land or in the waters or sea above land by - (a) prospecting; (b) using instruments, equipment and techniques appropriate to determine the existence of any mineral; (c) extracting and removing from land for sampling and testing an amount of material, mineral or other substance in each case reasonably necessary to determine its mineral bearing capacity or its properties as an indication of mineralisation; 2 Land and Resources Tribunal Act 1999 (Qld) s 67(2)(a). 3 Land and Resources Tribunal Act s 67(1). -- 3 of 5 -- 4 (d) doing anything else prescribed under a regulation." [10] In his mining lease application the applicant answered the question "Why is surface area required?" in the following way: "Pilot testing operations and carry out mining operations for minerals listed." The minerals listed were sapphire, gold, zircon and diamond. The term applied for was two years, the reason for that term said to be that that was the time envisaged to complete testing. [11] The application was accompanied by a statement outlining the applicant's mining program.4 It was in the following terms: "On grant of lease it is proposed to commence a testing program, supervised by Mr R McMaster (exploration geologist). This is anticipated to take 1 - 2 years. On completion, any areas within the lease area that have been proven economic will be targets for further lease applications for mining. Samples taken will be of approx 1m at each test site using a small excavator and trucked to a test facility." [12] Some evidence was given in the hearing before the Deputy President which described in more detail the nature of the mining program. Ms Kingham summarized this in the following way: "[8] It is clear from other material tendered by the Applicant and from the evidence he gave at the hearing, that the activities proposed are intended to ascertain the viability of areas for subsequent production. The Applicant stated that if he finds economic deposits he will peg them out and apply for a mining lease or leases to cover the area or areas identified. Further, he stated that none of the area applied for may be economically viable and that this will not be known until the testing is done. [9] The activities proposed are excavation of 100 small test slots, 5m long x 1m wide and up to 7m deep scattered over the surface of the lease area. The purpose of the excavations is to ascertain the extent of mineralisation and to identify the most prospective areas. The Applicant asserts this testing program is a proper facet of mining and a necessary preliminary aspect of mining." [13] Mr Zillman did not contend that an activity which came within the meaning of "explore" as defined could not also come within the definition of "mine" as defined. He could hardly have done so in view of the reasoning of the majority of this Court in Gonzo Holdings No 50 Pty Ltd v McKie.5 In that case the relevant activity carried on was described in the majority judgment in the following terms: "The appellant excavated three costeans or trenches on the land from which it removed material consisting, according to the report of Mr Siemon, of a mixture of mudstone, sandstone clay and quartz. Samples of the material were transported to a property, which appears to be named 'Currajong', some 3km to perhaps 6km north of 4 As required by s 245(1)(o)(iii)(A) of the Mineral Resources Act. 5 [1996] 2 QdR 240. -- 4 of 5 -- 5 the leased area. There the appellant established what is described as a pilot plant for treating the material to extract alluvial gold from it." The emphasis is mine. [14] In the course of their reasoning their Honours, referring to a New South Wales case, said that it "tends to show that the activities being carried out by the appellant on the Karrara land [those were the excavation and removal activities referred to earlier], even though their purpose may have been exploratory, would, on almost any view of it, be considered to be mining of that land. Indeed, the appellants probably had both purposes in mind, which is no doubt a reason why they obtained a mining lease and not merely an exploration permit." [15] The relevant facts in that case are not substantially different from those here. What was being done there was excavation and removal from the land of material for the purpose, principally it seems, of testing mineral content. Yet their Honours plainly thought that was mining within the meaning of the Mineral Resources Act. [16] The appellants' argument appears to be this. Although exploration may sometimes also constitute mining, if extraction and removal from land of an amount of material is only for the purpose of sampling or testing within the meaning of paragraph (c) of the definition of "explore" it cannot also constitute mining within the definition of "mine". Mr Zillman was unable to advance any basis for limiting the meaning of "mine" in the way for which he contended other than by inference from the definition of "explore". I do not think that is sufficient basis upon which to so limit the meaning of "mine" and that seems to have been the view of the majority in Gonzo. [17] For those reasons, in my opinion, the proposed activities of the respondent, as described by Ms Kingham, were mining minerals and therefore appropriately the subject of a mining lease granted under s 234. The appeal must therefore fail. Orders 1. Dismiss the appeal; 2. the appellants to pay the first respondent's costs. [18] DUTNEY J: I agree with the orders proposed by Davies JA and with the reasons he gives. -- 5 of 5 --