Christianos, Re [2002] QLRT 51

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re George Christianos [2002] QLRT 51 PARTY/IES: In the Matter of Application for Mining Lease No. 70226 by George Christianos FILE NO/S: AML00070/2001 PROCEEDING: Application for mining lease DELIVERED ON: 23 August 2002 DELIVERED AT: Brisbane HEARING DATE: 8 – 12 April 2002; 31 July 2002 PRESIDING MEMBER: Smith DP ORDER/S: 1. I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that ML 70226 be granted over the entire application area for the purpose and the term of 6 months sought by the Applicant, over the whole surface area of that land contained within the meets and bounds description contained in Schedule A of the Certificate of Public Notice for Mining Lease 70226 contained within Exhibit 23. (at [22]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION Mineral Resources Act 1989, ss. 245, 252, 269, 276 Environmental Protection Act 1994, s. 219 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 Elliott v Hicks [2001] QLRT 38, applied ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 QdR 347, considered COUNSEL: N/A SOLICITOR/S: Anne Murray & Co AGENT/S: N/A -- 1 of 7 -- [1] SMITH DP: On 4 April 2000 George Christianos (hereafter referred to as “the Applicant”) lodged Mining Lease Application No. 70226 with the Mining Registrar, Emerald 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 sapphire, zircon and diamond and gold. [2] A number of objections were lodged to the mining lease application. One objection was withdrawn relatively early in the process for technical reasons.1 Objections were also lodged by the landholders2 to the grant of the mining tenement, the environmental authority application and the draft environmental authority for the application. In light of the environmental objections, the Environmental Protection Agency (EPA) became a party to the proceedings.3 Hearing [3] The conduct of this application is somewhat unusual as, although there were numerous and complex grounds for objection lodged, this matter was heard in conjunction with another application (hereafter “QSM”) having like objections which all parties agreed could appropriately be heard together.4 The hearing was held in Emerald for a period of 5 days in April 2002. Following the hearing of each matter in Emerald in April, all that remained was for each party to provide the Tribunal with their submissions. However, following the conclusion of the hearing in Emerald and prior to the making of submissions, the parties entered into detailed negotiations which resulted in the withdrawal of all remaining objections in this matter and the withdrawal by the Applicant of the mining lease application in QSM. It also resulted in the Applicant, in agreement with the landholders, seeking an amendment of the term of the mining lease applied for from 5 years to 6 months. [4] I should point out that on 14 August 2001 I ordered the parties to attend mediation in an endeavour to resolve each matter. That mediation was unsuccessful. 1 Objection by Great Northern Mining Ltd withdrawn on 3 September 2001. 2 L.R. Benney and E.A. Benney. 3 Environmental Protection Act 1994, s. 219(4). 4 Queensland Sapphire Mining Pty Ltd v. Benney & Anor., AML00069/2001, ENO00084/2001. Mr & Mrs Benney were objectors in each matter; the applications were over the same property, in close proximity; and the Applicant is a principal of Queensland Sapphire Mining Pty Ltd. -- 2 of 7 -- [5] The final result in this matter is that I am now left with an application without objection, but have the benefit of a vast amount of material provided by the then objectors at the hearing of this matter. I note that for conducting a proceeding, I may inform myself of anything in a way I consider appropriate.5 I am also cognisant of the judgment of the Court of Appeal in ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation.6 The Applicant raised no objection to my taking into account all material and evidence placed before me at the hearing of the matter. I should also stress that, in addition to hearing the objections in Emerald, I also conducted the hearing with respect to the application by the Applicant of the Applicant’s compliance with the provisions of s. 269(4) of the Act. [6] Accordingly, in considering this matter, I have taken account of all material presented at the hearing of this matter, relevant affidavits and statutory declarations, and other material lodged by the Applicant with the Department of Natural Resources and Mines and provided by the mining registrar to this Tribunal, together with 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 CXLR 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. Section 269(4) Criteria [8] Section 269(4) of the Act specifies that, “the tribunal, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether –” and there follows various criteria set out at (a) to (m). It is my usual practice when making a recommendation to the Minister to set out each criterion separately and state, in summary form, how I have taken each criterion into account and considered same. For the purposes of this recommendation, as the evidence produced and other 5 Land and Resources Tribunal Act 1999, s. 49(2)(b). 6 [2002] 1 QdR 347. -- 3 of 7 -- material before me tends to cross over from one criterion to the next, I intend to deal with all of the criteria together. [9] I confirm that, for the purposes of s. 269(4) of the Act, I have taken account of and considered each of the criteria (a) to (m) in making this recommendation. [10] There are a number of technical aspects to this application which present little difficulty. Firstly, the application is over freehold land and accordingly native title provisions are not relevant. The application area falls within RA1, resulting in my reasoning from Elliot v Hicks7 being relevant regarding mineralisation. Further, as the land applied for is wholly within RA1, no exploration permits or mineral development licenses can be held or applied for. There appears to be no endangered flora or fauna within the application area. [11] 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 Applicant pursuant to that legislation to protect any sites of indigenous significance should they be located during the mining operations. [12] There is no evidence to show that the public right and interest will be prejudiced should this mining lease be granted. There is nothing to indicate that the size and shape is not appropriate. [13] Although, as detailed above, there are favourable aspects to this mining lease application, there are several aspects to the application which cause me concern. At the hearing of the matter, and in particular at the site inspection, there was considerable confusion as to the exact location of one aspect of the Applicant’s current mining operation caused, principally, by the apparent absence of a peg. [14] I am also of no doubt that this Applicant has engaged in the past in mining, as defined under the Act, off lease. This was in the area where the peg was apparently missing. The Applicant endeavoured to explain his off lease mining activities by saying that he had not taken any mineral off lease, but had simply removed 7 [2001] QLRT 38 at pp [117]-[120]. -- 4 of 7 -- overburden off lease in order to get to wash levels within a mining lease area. In this regard, the Applicant has completely misunderstood the provisions of the Act regarding mining activities. There was also evidence provided of a number of instances of relatively unsatisfactory past performance by the Applicant, either on his own behalf or as the principal of various corporations that hold mining leases. [15] In short, had this matter proceeded as one subject to objection and without a negotiated agreement, there are, in my view, certainly factors which may have influenced me to reach a decision to recommend to the Minister that the mining lease application not be granted. However, the matter does not end there. [16] The mining lease application area is on a property known as “Subera”. The property has been extensively mined in the past and remains subject to active mining activity. During the course of the hearing, it became evident that quite an amount of hostility had developed over the years between the landholders and the Applicant. However, it also became evident that at least some of this hostility, from both sides, has resulted from misunderstandings of the actions and motives of the other. [17] A draft environmental authority was issued by the EPA on 29 May 2001, which requires the Applicant to carry out activities in accordance with the Standard Environmental Conditions contained in the Code Environmental Compliance for Mining Lease Projects dated January 2001. At the time that it was a party to these proceedings the EPA adopted the position that environmental impacts would be adequately dealt with by compliance with the conditions of the Code. I agree with this assessment. [18] As mentioned earlier, the term sought for this mining lease is 6 months. I note that the original time sought was 5 years. I am concerned that a period of only 6 months will not allow the Applicant sufficient time to both mine the application area and fully rehabilitate same. That said, however, I note that, as confirmed by my site inspection, the Applicant has considerable machinery operating on land adjacent to the application area. I consider that, using such machinery to its full potential, the Applicant could successfully mine and recontour the application area within the period of 6 months. My doubts however relate to the success of rehabilitation within that time period. I do note that it is proposed, should this mining lease be granted, to have the land fully recontoured and seeded before next year’s wet season. It is -- 5 of 7 -- therefore possible for rehabilitation to occur within the requested time, assuming of course that the rains come. [19] Although, as I have already indicated, there appears good reason why a recommendation could be made that this lease not be granted, in taking account of and considering all of the evidence in this matter, in my view, much weight must be given to the negotiated agreement that has been reached between the landholders and the Applicant. As part of this agreement, not only have the objections in this matter been withdrawn and the Applicant’s company withdrawn its application in QSM, but compensation as between the landholders and the Applicant has been agreed in the event that this mining lease application is granted. [20] This application is only over a relatively small area of land, being 5.1895ha.8 It is now for only a very short term of 6 months. The Applicant has several mining operations on the Rubyvale gemfields and, from the evidence before me at the hearing, it is his intention to continue mining on the gemfields for some time to come. In my view, the small size and short term of this application will, if the application is granted, provide a good indication for further applications by this Applicant of whether or not he has learnt from his practices in the past and improved both his mining processes and his relationship with landholders. [21] At the end of the day, the land within this mining lease application lies within RA1, bordered by land that has been extensively mined. I consider it appropriate that mining occur on this land. Those persons most affected by mining by this Applicant on their land are the landholders. They now offer no objection to such application as a result of a lengthy hearing between themselves and the Applicant, combined with successful negotiations. In all of the circumstances, although I remain cognisant of the Applicant’s shortcomings with respect to this application, it is my view that the negotiated agreement reached between the Applicant and the landholders should be 8 It is a matter of some concern that Exhibit 23, which is the Departmental Application file, contains various inconsistent references to the application area. The original application was for 2.595ha which included the whole surface area. The area applied for has been changed at some time to 5.18ha, although the surface area remains at 2.595ha. Relevant plans on file also contain handwritten reference to 2.595ha. A Mining Lease Report – Public provided to the Tribunal on 22 August 2002 by the Emerald office of the Department of Natural Resources and Mines details both the area and the surface area applied for as 5.1895ha. Throughout the hearing of this matter it was clear that the application was for that area of land, including the whole of the surface, as contained within the meets and bounds description of Schedule A of the Certificate of Public Notice for Mining Lease 70226 contained within Exhibit 23. -- 6 of 7 -- given a chance to work and this can only be achieved by my making a favourable recommendation. Recommendation [22] Taking into account 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 ML 70226 be granted over the entire application area for the purpose and the term of 6 months sought by the Applicant, over the whole surface area of that land contained within the meets and bounds description contained in Schedule A of the Certificate of Public Notice for Mining Lease 70226 contained within Exhibit 23. -- 7 of 7 --