Clifton Opal Pty Ltd, Re [2002] QLRT 41

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Clifton Opal Pty Ltd [2002] QLRT 41 PARTIES: In the Matter of Mining Lease No. 95319 – application by Clifton Opal Pty Ltd for Mining Lease FILE NO: AML00026/2001 PROCEEDING: Application for mining lease DELIVERED ON: 16 July 2002 DELIVERED AT: Brisbane HEARING DATE: 29 March 2001 and 11 July 2002 PRESIDING MEMBER: Kingham DP ORDER/S: 1. Recommendation made that the Mining Lease be granted over the entire application area, for a term of 10 years and for the purpose sought by the Applicant. at [21]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION Mineral Resources Act 1989, ss.245, 252(1) & (10), 269(4), 276, 281(6) & 300 Environmental Protection Act 1994, s. 590 Native Title Act 1993 (Cth), ss. 24CA to 24 CL, 24EB Central Queensland Land Council Aboriginal Corporation v Attorney-General of the Commonwealth of Australia and State of Queensland [2002] FCA 58 COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A [1] KINGHAM DP: This is an application originally made by Rosemarie Laurel Petrie under s. 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 6.13ha area of land on Mayneside Station in the Winton Shire for the purpose of -- 1 of 7 -- mining opals and associated infrastructure and camp. The application was lodged with the Mining Registrar for the Winton mining district on 27 August 2000. No objection to the application was lodged during the public objection period, which ended on 4 October 2000. I undertook a site inspection on 28 March 2001 and the application was heard in Winton the next day, Ms Petrie representing herself. Because the application is over a pastoral tenure, the hearing was adjourned to enable Ms Petrie to fulfil the requirements of the native title provisions of the Act, then considered to be operative. [2] A number of events have affected this application:  On 29 January 2001, Ms Petrie assigned the application to Clifton Opal Pty Ltd (the Applicant);1  On 8 February 2002, Justice Wilcox declared that certain determinations under s. 43(1)(b) of the Native Title Act 1993 (Cth) (NTA) are invalid and without legal effect. One of the effects of the declaration is that the “native title provisions” of the Mineral Resources Act with respect to mining leases are inoperative;2  On 13 June 2002, the National Native Title Tribunal registered an Indigenous Land Use Agreement (ILUA) which covers the area applied for.3 That ILUA includes the parties’ consent to the grant of a mining tenure to a person who elects to become a “grantee party” to the ILUA.4 It provides that the right to negotiate procedure under the NTA does not apply to the grant of mining leases made in accordance with the ILUA.5 The consent is subject to the grantee party fulfilling certain pre grant conditions.6 It provides for the lease to be granted subject to certain post grant conditions.7  On 2 July 2002, the Applicant executed a Deed to become a “grantee party” under the ILUA.8 1 Section 300 MRA. 2 Central Queensland Aboriginal Land Corporation v Attorney-General of the Commonwealth of Australia and State of Queensland [2002] FCA58; s. 650(1) and Schedule to MRA. 3 The Winton ILUA – Maiawali and Karuwali People Q101/28 s. 24CA to s. 24CL NTA. 4 ILUA clause 9.5. 5 ILUA clause 5.3. 6 ILUA clause 9.5(a)(ii) and Section 1 of the Native Title Conditions for Mining Claims and Mining Leases. 7 Section 24EB NTA and ILUA clause 9.5 and s. 2 of the Native Title Conditions for Mining Claims and Mining Leases. 8 Whilst it is not clear whether all pre grant conditions have been fulfilled, this Tribunal has no role prescribed by the ILUA in supervising or enforcing pre grant conditions. -- 2 of 7 -- [3] There is no longer any impediment to the Tribunal dealing with this application. Because the application was assigned and because I expressed concerns about the application at the hearing in March 2001,9 the Applicant was provided with an opportunity to file further material and a short telephone hearing was conducted on 11 July 2002. Section 269(4) criteria: [4] In taking account of and considering the criteria specified in s. 269(4), I have relied upon the material provided by the original Applicant, Ms Petrie, to the Department of Natural Resources and Mines and provided to the Tribunal by the Mining Registrar. I have also taken into account the further material filed by the Applicant and the evidence given by one of its Directors, Max Lane, during the recent telephone hearing. The Mining Registrar has also provided the Tribunal with relevant departmental reports relating to this application. These reasons refer to the salient points, 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? [5] On 4 September 2000, the Mining Registrar issued a Certificate of Application. Pursuant to s. 252(1) of the Act, the Mining Registrar can only do so 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. Ms Petrie’s Declaration of Posting and Advertising certified compliance with the requirements for notifying the application within the statutory time.10 There appears to be no reserve or restricted land involved. Section 269(4)(b) - Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [6] The application seeks the grant of a mining lease for the purpose of mining opal. Nevertheless, during the initial hearing, Ms Petrie gave evidence to the effect that the area was not mineralised and that she had no intention to mine the lease area. Her 9 It was clear from the evidence given by Ms Petrie that she had no intention to mine the area applied for, rather that she sought a mining lease to protect a camp she had established on the lease area. (Transcript of hearing held on 29 March 2001.) 10 Section 252(10) – since amended. -- 3 of 7 -- purpose in making the application was to secure a permanent camp she had established on a concrete slab on the lease area.11 [7] The evidence presented by the Applicant, however, indicates that the area is mineralised. The Applicant filed a Statutory Declaration by Geoffrey Walker who held an exploration permit over this area in 1994/95. He conducted a drilling program that transected the lease area. The holes were drilled to a depth of 6 metres and several mineral levels were encountered from the 3 to 6 metre levels. Opal trace was found in each hole drilled adjacent to and south of the camp Ms Petrie occupied, although holes drilled in the northern part of the lease were not productive. Mr Walker expects there is opal to be found on other parts of the lease that he did not drill because of the presence of the camp and a machinery access way. He also considers that drilling should have been conducted to a depth of 12 to 15 metres. [8] Max Lane stated that Ms Petrie’s camp has now been demolished and a mobile donger and machinery shed will be used on the lease. This will allow the Applicant to move the infrastructure around the lease as required to enable the resources on the lease to be fully exploited. The Applicant will conduct a more extensive drilling program ahead of finalising its mine plan. Mr Lane expects it will be an open cut operation. [9] With respect to mineralisation, I prefer the evidence given by both Geoffrey Walker and Max Lane to that given by Ms Petrie. It was clear to me during the initial hearing that Ms Petrie was not well advised about whether she could obtain a mining lease to secure her camp. I consider her evidence was coloured by her desire to obtain a lease for that purpose. The area applied for is surrounded by productive leases and is in a well-established opal field. I have no reason to doubt Mr Walker’s evidence and rely upon it in making my finding that the lease area is generally 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? [10] Ms Petrie’s camp has already been demolished and Max Lane gave evidence that he will undertake a more extensive drilling program prior to finalising a mine plan. At this stage, the plan is to undertake open cut mining to a depth of approximately 11 Transcript 29 March 2001, pp9-10 and 17-18. -- 4 of 7 -- 7 metres. Opal bearing boulders will be processed on site to establish the quality of the opal. It will then be further processed at the Applicant’s cutting factory in Sydney. The Applicant has not undertaken mining in the past, but is a gemstone trader. I have no reason to believe there will not be an acceptable level of development and utilisation of the mineral resource in the area. 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? [11] The boundaries of the lease are determined by the boundaries of other mining leases. Whilst there is some evidence that the northern area of the lease will not be productive, there are indications that the rest of the lease will be. The area applied for is not excessive for the type of operation envisioned. I note that the area applied for does not exceed the maximum consented to pursuant to the ILUA.12 Section 269(4)(e) - Is the term sought appropriate? [12] The application originally sought a term of 20 years. The consent provided for in the ILUA is for a term not exceeding 10 years.13 The Applicant has now indicated that it proposes a term of 10 years. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [13] Whilst the Applicant has not previously operated a mine, it is a gemstone trader and Mr Lane is the past President of both the Australian Opal and Gemstone Association and the Australian Gemstone Industry Council. The operation proposed is a simple open cut operation, using excavator and dump truck and contract labour will be engaged to operate that machinery. The Applicant is part of the Gemtech group of companies and its auditors of 10 years standing, Mitchell & Partners, have stated that they consider the Applicant has the necessary financial resources at its disposal for the operation proposed. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [14] As the Applicant has not operated a mine before there is no relevant past performance to consider. 12 Clause 9.5(a)(iv). 13 Clause 9.5(a)(iii). -- 5 of 7 -- 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? [15] The holders of an application for exploration permit no. 12390, which encompasses the land applied for, consented to the application. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [16] The lease area is not currently utilised by the pastoral leaseholder, although the station’s land use is sparse cattle grazing. Ms Petrie entered into a compensation agreement with the pastoral leaseholder, which was lodged with the Mining Registrar and which binds the Applicant.14 Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof. [17] The Environmental Protection Agency (EPA) has approved an environmental authority to take effect upon the grant of the mining lease. The conditions will require the Applicant to conduct the operations in accordance with the Environmental Management Overview Strategy (EMOS).15 Prior to the environmental authority being issued, the EPA will review the environmental planning documents and will approve the final form of the EMOS. Section 269(4)(k) – Will the public right and interest be prejudiced? [18] 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. It is also significant that the original Applicant entered into a compensation agreement with the landholder. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [19] There was no evidence before me that indicated any good reason why this application should be refused. 14 Section 281(6). 15 Section 590 Environmental Protection Act 1994 (and s. 276 Mineral Resources Act, prior to the amendment made by the Environmental Protection and Other Legislation Amendment Act 2000). -- 6 of 7 -- Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [20] 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: [21] 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 be granted over the entire application area, for a term of 10 years and for the purpose sought by the Applicant. -- 7 of 7 --