BHP Billiton Minerals Pty Ltd & Ors, Re [2002] QLRT 9

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Billiton Minerals Pty Ltd & Ors [2002] QLRT 9 PARTIES: In the Matter of Mining Lease No. 1923 – Application by BHP Billiton Minerals Pty Ltd & Ors for additional surface area of land No. 7 FILE NO/S: AML00009/2002 PROCEEDING: Application for additional surface area of land DELIVERED ON: 18 March 2002 DELIVERED AT: Brisbane HEARING DATE: 7 March 2002 PRESIDING MEMBER: Smith DP ORDER/S: 1. I bring to the attention of the Honourable the Minister for Natural Resources and Minister for Mines that one of the Applicants, BHP Billiton Minerals Pty Ltd, was previously BHP Minerals Pty Ltd, the change of name being registered on 12 October 2001. I further note that, as at 8 March 2002, the records of the Department of Natural Resources and Mines had not been changed so as to endorse the change of name on ML 1923. Such a change should occur either prior to, or concurrently with, consideration of this recommendation by the Minister (at [1]) 2. I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Additional Surface Area No. 7, applied for by the Applicants, be included in ML 1923. (at [29]) CATCHWORDS: MINING – MINING LEASE – APPLICATION FOR ADDITIONAL SURFACE AREA – RECOMMENDATION Mineral Resources Act 1989, ss. 252, 252A, 252C, 269, 270, 275, 276 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 Fourmile v. Selpam Pty Ltd (1998) 80 FCR 151, applied -- 1 of 6 -- COUNSEL: N/A SOLICITORS: N/A AGENTS: Ms Nicole Allder, Tenement Officer, BHP Billiton Limited for the Applicants [1] SMITH DP: On 17 September 2001 BHP Billiton Minerals Pty Ltd, BHP Queensland Coal Ltd, Mitsubishi Development Pty Ltd, QCT Mining Pty Ltd, QCT Resources Ltd, QCT Investment Pty Ltd, QCT Management Ltd (hereafter referred to as “the Applicants”) lodged an Application for Additional Surface Area No. 7 to be included in Mining Lease No. 1923 with the Mining Registrar, Emerald District. I note that one of the Applicants, BHP Billiton Minerals Pty Ltd, was previously BHP Minerals Pty Ltd, the change of name being registered on 12 October 2001. I further note that, as at 8 March 2002, the records of the Department of Natural Resources and Mines had not been changed so as to endorse the change of name on ML 1923.1 Such a change should occur either prior to, or concurrently with, consideration of this recommendation by the Minister. I formally bring this to the Minister’s attention. [2] The Application was lodged pursuant to s. 275 of the Mineral Resources Act 1989 (hereafter referred to as “the Act”). No objections were duly lodged to the application. [3] The Applicants have requested that the application be dealt with without an oral hearing, pursuant to s. 270 of the Act and have 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. [4] I may dispense with a hearing if satisfied as to matters specified in s. 270(1). For reasons that follow, I was not satisfied, on reading the material provided, that the provisions of part 7 of the Act had been complied with in respect of the application at the time the application came before me. I note that there were no objections to this application. However, the land applied for is a road and the consent of the owner of the road was not apparent in the material then before me. As I was not satisfied that the preconditions to my exercising the discretion to dispense with a hearing had been fulfilled, a hearing was held on 7 March 2002. 1 See affidavit of Nicole Allder sworn 8 March 2002. -- 2 of 6 -- [5] The material supplied by the Applicants and the Mining Registrar addresses each of the criteria that I must consider in making my recommendation on this application. Further additional material was provided by way of an affidavit by Nicole Allder, Tenement Officer, BHP Billiton Limited sworn 8 March 2002 together with an exhibit tendered on 7 March 2002. [6] In taking account of and considering the criteria specified in s. 269(4) of the Act, which are required to be taken account of and considered in applications such as this, I have relied on the Additional Information and Statutory Declaration sworn on behalf of the Applicants by Shane Hansen, Mine Manager, on 14 February 2002, together with the affidavit of Nicole Allder of 8 March 2002 and Exhibit 1. 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. [8] For the purpose of this decision, I set out below, in summary form, the criteria specified in s. 269(4) of the Act that I have taken account of and considered in reaching my conclusions in this matter. I have broken the various components of the evidence, the exhibit and other material into the subheadings listed below based on each criterion set out in s. 269(4) of the Act. Section 269(4)(a) – Have the provisions of the Act been complied with? [9] On 24 September 2001, the Mining Registrar, Emerald District, issued a Certificate of Application which was accepted by the Applicants on 24 September 2001. 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 make this application and have complied with the requirements of the Act with respect to the application. -- 3 of 6 -- [10] Pursuant to s. 252A of the Act a Certificate of Public Notice was issued by the Mining Registrar on 8 January 2002. [11] I note that the underlying tenure is a gazetted road. Applying the Full Federal Court decision of Fourmile v Selpam,2 native title has been extinguished over the entire application area. Accordingly the native title provisions of the Act are not applicable to this application. [12] In my opinion, there is sufficient evidence of compliance with the provisions of the Act in respect to this application. Further, no material was in evidence before me to indicate any non-compliance with any relevant provisions of the Act. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [13] The land applied for is the surface land to ML 1923 for which mineralisation has already been established. 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? [14] The area subject to this application will be mined by underground methods as provided in the approved Plan of Operations. The surface land the subject of this application may be subject to surface subsidence effects. I am satisfied that this criterion has been established. 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? [15] The surface area of this application is within ML 1923. The additional area is now required to continue the underground mining operation. There is no evidence to indicate that the size and shape is not appropriate. Section 269(4)(e) – Is the term sought appropriate? [16] The term sought matches that of the existing (approved) ML 1923 which expires on 31 March 2006. 2 (1998) 80 FCR 151. -- 4 of 6 -- Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [17] The Applicants are experienced mining operators with large mining activities and access to appropriate human and other resources. I am satisfied that this criterion has been established. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [18] I note the decision of Deputy President Kingham in a recent, similar application relating to these Applicants and, in part, to ML 1923.3 I adopt paragraphs 18 – 22 of her decision. [19] Apart from that as detailed by Kingham DP, there is still no other evidence of unsatisfactory past performance by the Applicants before the Tribunal. While the past performance of the Applicants cannot be said to be entirely satisfactory, I do not consider that I should recommend against the grant for this reason alone. 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? [20] There are no such underlying tenures which are not held by the Applicants. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [21] This application forms only a small part of a large, existing mining operation. There is no evidence before me to suggest that the proposed operations do not conform with sound land use management. Section 269(4)(f) – Will there be any adverse environmental impacts, and if so, the extent thereof. [22] A draft environmental authority was issued on 4 January 2002. I note that there was no objection to the terms of the draft environmental authority. There is no evidence to suggest that the environmental impacts will not be adequately dealt with by compliance with the conditions of the environmental authority. 3 Re: BHP Minerals Pty Ltd & Ors [2001] QLRT 67. -- 5 of 6 -- Section 269(4)(k) – Will the public right and interest be prejudiced? [23] As referred to previously, the entire application area in this application is a public road. The consent of the Peak Downs Shire Council is detailed in the Compensation Agreement.4 I note that the road is to remain open. In my view, the compensation agreement, by its terms, adequately protects the public interest. [24] There appears to be no endangered flora or fauna within the application area. [25] 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 Applicants pursuant to that legislation to protect any sites of indigenous significance should they be located during the mining operations. [26] I am satisfied that the public right and interest will not be prejudiced should this application proceed. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [27] 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? [28] The application forms an integral part of an existing, substantial mining operation. The application is without objection. I am satisfied that the proposed mining operation is an appropriate land use. Recommendation [29] 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 Minister for Mines that Additional Surface Area No. 7, applied for by the Applicants, be included in ML 1923. 4 Exhibit 1. -- 6 of 6 --