Alagrow Pty Ltd, Re [2002] QLRT 103

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Alagrow Pty Ltd [2002] QLRT 103 PARTIES: In the Matter of Mining Lease No. 70264 – Application by Alagrow Pty Ltd for Mining Lease FILE NO: AML00116/2001 PROCEEDING: Application for mining lease DELIVERED ON: 13 December 2002 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Kingham DP ORDER/S: 1. Hearing dispensed with. (at [4]) 2. Recommendation made that the Mining Lease is granted over the entire application area, for the purpose and for the term sought by the Applicant. (at [20]) 3. I draw the Minister’s attention to my finding that the native title provisions of the Act no longer apply to this Application. (at [2] & [7]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION – NATIVE TITLE PROVISIONS – NO REGISTERED NATIVE TITLE PARTIES Mineral Resources Act 1989, ss 245, 252, 252A, 252B, 252C, 269(4), 270, 422, 656, 657 Native Title Act 1993 (Cth), s 43(1)(b) Central Queensland Land Council Aboriginal Corporation v Attorney-General of the Commonwealth of Australia and State of Queensland (2002) 188 ALR 2000 State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371 Re Alagrow Pty Ltd [2002] QLRT 12 COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A -- 1 of 5 -- [1] KINGHAM DP: This is an application by Alagrow Pty Ltd under s. 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 26.92ha area of land 60 kms east of Alpha in the Jericho Shire for the purpose of mining zeolite and for a mobile crushing plant. The Application was lodged with the Mining Registrar for the Emerald mining district on 18 May 2001. No objection to the Application was lodged during the public objection period, which ended on 30 November 2001. The underlying tenure is a pastoral holding. [2] Consideration of this Application has been delayed due to litigation in the Federal Court regarding certain determinations made by the Commonwealth Attorney- General pursuant to s. 43(1)(b) of the Native Title Act 1993 (Cth) (NTA) in relation to the “native title provisions” of the Act. A declaration by Justice Wilcox that those determinations were invalid and without legal effect,1 was recently overturned on appeal to the Full Federal Court.2 For the reasons specified on 3 April 2001 when I adjourned this matter,3 I did not consider the Application during the period between the 2 judgments. For the reasons that follow at [7], I find that the native title provisions no longer apply to this Application. [3] There is no impediment to the Tribunal dealing with this Application. The Applicant has requested the Application be considered 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. Request to dispense with a hearing - Section 270: [4] I may dispense with a hearing if satisfied as to matters specified in s. 270(1). For reasons that follow at paragraphs [6] and [7], I am satisfied that the provisions of the Act have been substantially complied with in respect of the Application. There were no objections to this Application. It appears there is no restricted or reserve land in the area applied for. I am satisfied that the preconditions to exercising my discretion to dispense with a hearing have been fulfilled. The material supplied by the Applicant 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. Section 269(4) criteria: [5] In taking account of and considering the criteria specified in s. 269(4), I have relied upon the Additional Information and Statutory Declaration of Brian Besley on behalf of the Applicant sworn on 7 December 2001 and the further material provided by the Applicant under cover of letter dated 11 February 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 most 1 Central Queensland Aboriginal Land Corporation v Attorney-General of the Commonwealth of Australia and State of Queensland (2002) 188 ALR 2000. 2 State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371 3 Re Alagrow Pty Ltd [2002] QLRT 12. -- 2 of 5 -- significant evidence, but not to all the relevant evidence, that I have taken into account in making my recommendation. Section 269(4)(a) - Have the provisions of the Act been complied with? [6] On 23 October 2001, the Mining Registrar issued a Certificate of Public Notice.4 The Applicant lodged a Declaration of Compliance with the requirements for notifying the Application on 10 December 2001. Whilst this is a few days outside the prescribed time,5 it appears that a copy of the public notice, as advertised in the Central Queensland News, was provided to an officer of the Department within the statutory time frame. The declaration was sworn on the day the statutory period concluded and appears to have been posted on that day as it was stamped received by post on the first business day following. The declaration establishes that the Applicant complied with the notification requirements. In the circumstances I am satisfied that the Applicant substantially complied with the requirements regarding the Declaration of Compliance. The Mining Registrar issued a Certificate of Application on 18 May 2001, which he can only do if satisfied that the Applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the Application.6 [7] It appears that the area applied for is “non-exclusive land”.7 The native title provisions of the Act no longer apply to this Application, however, because on 18 October 2001, the Applicant lodged a form advising the Mining Registrar that there were no registered native title parties in relation to the area applied for.8 Section 269(4)(b) - Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [8] The Application seeks the grant of a mining lease for the purpose of mining zeolite and operating a mobile crushing plant. The Applicant provided a report from a geological consultant and from an assayist to establish that there is a significant resource of good quality in the area applied for. I am satisfied that the area is mineralised. The other purpose for which the lease is sought is associated with the mining activity and is an appropriate purpose for a mining lease. 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? [9] The Applicant has a team of well qualified people in its managerial positions. They are supported by access to consultants specialising in zeolite and geology. The Applicant has identified potential markets in the agriculture, horticulture, stock-feeds and industrial fields. It has prepared projected financial statements for the operation and has been negotiating with interested parties regarding a major capital contribution to assist with commercialisation. The Applicant stated that those negotiations could not be finalised until the mining lease was granted. This is understandable given the uncertainty surrounding the application of the native title provisions to this area. There is no evidence to suggest that there will not be an 4 Section 252A. 5 Section 252C 6 Section 252(1). 7 As defined in s. 422. 8 Section 657(1)(a) - The advice was lodged more than 1 month after the closing day (native title issues). -- 3 of 5 -- acceptable level of 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? [10] The Applicant determined the boundaries of the lease by reference to the deposit and nearby waterways. The Applicant has sought a mining lease over the entire surface area applied for. There is no evidence to indicate the size and shape is not appropriate. Section 269(4)(e) - Is the term sought appropriate? [11] The Applicant seeks a term of 10 years. The Applicant considers this term is sufficient to exploit the resource. There is no evidence to suggest that the term sought is not appropriate. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [12] I have already referred to evidence regarding the Applicant’s access to financial and technical resources. I am satisfied that the Applicant has access to appropriate technical resources and proposes a relatively straightforward open cut operation. Whilst the Applicant has not established it has the capital to fund the proposed operation alone, it has established a valuable resource that appears to be capable of attracting the interest of a suitable financial partner or investor. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [13] This is the first lease applied for by the Applicant. There is no evidence before me to suggest unsatisfactory past performance by the Applicant in relation to the underlying exploration permit. The Applicant’s Operations Manager was an Assistant Inspector of Mines and an Inspection Officer with the Department of Mines and Energy, as it then was. His powers and duties were such that he could be expected to have a high level of familiarity with statutory and licence requirements. 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? [14] The Applicant holds the underlying exploration permit. There are no other holders of or applicants for exploration tenures who would be affected by the grant. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [15] The current land use is cattle grazing. At least one of the landholders is a Director of the Applicant and none of them have objected to the Application. -- 4 of 5 -- Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [16] The draft environmental authority was issued on 22 May 2001. It requires the Applicant to comply with the standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects. The draft authority was publicly advertised and no objections were lodged in relation to it. 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? [17] There is no public infrastructure on the area applied for. There was no evidence before me that indicated the public right and interest would be prejudiced. It is significant that there was no objection to this Application. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [18] 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? [19] On the basis of the evidence considered in relation to criteria (i), (j), (k) and (l), I consider the proposed activity is an appropriate land use. Recommendation: [20] 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 and the Minister for Mines that the Mining Lease is granted over the entire application area, for the purpose and for the term sought by the Applicant. -- 5 of 5 --