Boral Bricks Pty Ltd, Re [2002] QLRT 4

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Boral Bricks Pty Ltd [2002] QLRT 4 PARTIES: In the Matter of Mining Lease 50183 - Application by Boral Bricks Pty Ltd FILE NO/S: AML00124/2001 PROCEEDING: Application for Mining Lease DELIVERED ON: 11 March 2002 DELIVERED AT: Brisbane HEARING DATE: 12 February 2002 PRESIDING MEMBER: Kingham DP ORDER/S: 1. I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that the mining lease be granted over the entire area sought for the purpose and term sought by the Applicant. (at [19]) 2. I also recommend the Minister give favourable consideration to the Applicant’s request that the condition specified in s. 276(1)(i) of the Mineral Resources Act 1989 not be imposed on this lease. (at [18]) CATCHWORDS: MINING – MINING LEASE –RECOMMENDATION Mineral Resources Act 1989, ss 238, 245, 252C, 269(4), 276(1)(i), 392 COUNSEL: N/A SOLICITORS: Zoe Farmer [1] KINGHAM DP: Boral Bricks Pty Ltd applied under s. 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 2.046ha area of land in Strathpine for the purpose of mining clay for its ceramic properties and associated infrastructure (The Old North Road lease). The Old North Road lease is a 30m wide strip running between 2 existing mining leases (ML1106 & ML1171) held by companies in the Boral group. -- 1 of 6 -- The application was heard on 12 February 2002. The Applicant relied on its written material. Section 269 (4) criteria: [2] In taking account of and considering the criteria specified in s. 269(4), I have relied upon the statutory declaration provided by Bruce Ruffles, on behalf of the Applicant, the material the Applicant filed with the Tribunal or lodged with the Mining Registrar and the Mining Registrar’s report. Section 269(4)(a) - Have the provisions of the Act been complied with? [3] The Application was lodged with the Acting Mining Registrar for the Brisbane District on 22 October 2001. The Acting Mining Registrar issued a Certificate of Application on 15 November 2001, which he can only do if satisfied that the provisions of the Act relating to the application have been complied with.1 The Applicant was required to lodge a Declaration of Compliance with notification requirements by 20 December 2001, 7 days after the last day for objections. The letter enclosing the Declaration was faxed to the Mining Registrar on 27 December 2001 but was not marked as having been lodged until 2 January 2002.2 Whilst intervening public holidays account, in part, for the delay between the Declaration being faxed and it being formally lodged with the Mining Registrar, the initial delay in preparing the Declaration was not explained. Nevertheless, the Declaration establishes that the Application was advertised as required and I am satisfied that there was substantial compliance with the requirements of the Act.3 [4] The Old North Road lease is over a road reserve owned by the Pine Rivers Shire Council. It gave its consent to the grant of the lease over that reserve within the time required by the Act.4 The Applicant submitted that the native title provisions of the Act do not apply to this Application. The effect of a recent decision of the Federal Court is that most of the native title provisions of the Act dealing with mining leases are not operative in any case.5 They include those provisions conferring jurisdiction on the 1 s245. 2 s252C. 3 s392. 4 s238. 5 Division 4 of Part 17 contains the Queensland alternative right to negotiate provisions in relation to mining leases. In Central Queensland Land Council Aboriginal Corporation v Attorney-General of the Commonwealth of Australia and -- 2 of 6 -- Tribunal to deal with the native title issues involved in an application for a mining lease. Accordingly I have no jurisdiction to determine the native title issues and make no finding about whether the grant of the Old North Road lease is an act that would be subject to the right to negotiate provisions of the Native Title Act 1993 (Cwlth).6 The Minister should consider the native title issues before acting on this recommendation. S269(4)(b) Is the area mineralised or are the other purposes for which the lease is sought appropriate? [5] The Old North Road lease is sandwiched between 2 existing mining leases held by the Boral group (ML1106 & ML1171). ML1106 is being actively mined and reserves have been established on ML1171. The nature of the reserve indicates that the reserve continues across the narrow width of the Old North Road lease. I am satisfied that the area is mineralised. S269(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? [6] The Applicant intends to operate the Old North Road lease in conjunction with the other 2 leases as an integrated project. Without this lease, the Boral group was not able to fully exploit the resources on the 2 adjoining leases, because of the need to retain shallow sloping batters on either side of the road. The addition of this lease will obviate the need for this and will allow the clay resources of the 3 leases to be fully exploited. S269(4)(d) Is the land and the surface area of an appropriate size and shape? [7] The shape of the road reserve has determined the size and shape of the lease. State of Queensland [2002] FCA 58, Justice Wilcox decided that certain determinations pursuant to s43 of the Native Title Act 1993 (Cwlth) in relation to Queensland’s alternative state provisions were invalid. 6 Subdivision P. -- 3 of 6 -- S269(4)(e) Is the term sought appropriate? [8] The term sought is 30 years, which coincides with the terms of the adjoining leases. I consider this to be an appropriate term given the Applicant’s intention to operate on the 3 leases as an integrated project. S269(4)(f) Does the applicant have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [9] The Applicant is a wholly owned subsidiary of Boral Limited, part of the Boral building products group, with assets and annual sales in the order of $2,000,000. The Applicant holds 8 other leases and has been operating for more than 20 years. I am satisfied that the Applicant has sufficient financial resources and access to appropriate technical resources to carry on the proposed operation. S269(4)(g) Has the past performance of the Applicant been satisfactory? [10] The Applicant has been mining for 20 years without any enforcement action being taken against it. Under the performance rating system for mines operated by the Department of Mines and Energy, as it then was, the Applicant’s mine had a rating for environmental performance of category 4, resulting in a 30% discount on its security deposit. There is no evidence before me to indicate that the Applicant’s past performance has not been satisfactory, and the environmental performance rating indicates the ability of the Applicant to meet defined environmental objectives. S269(4)(h) Will there be any disadvantage to the rights of holders of or applicants for exploration permits or mineral development licences? [11] There are no holders of or applicants for exploration permits or mineral development licences who would be affected by the grant of the Old North Road lease. S269(4)(i) Will the operations conform with sound land use management? [12] There is no current land use, it being a disused road. The owner of the road, the Pine Rivers Shire Council, has consented to this application and the road will be realigned on the other side of ML1171, taking some land subject to that lease and some freehold land owned by the Boral group. There does not appear to be any alternative land use. -- 4 of 6 -- S269(4)(j) Will there be any adverse environmental impact caused by those operations, and if so, the extent thereof? [13] The Environmental Protection Agency (EPA) has issued a draft environmental authority which requires compliance with standard conditions from the Code of Environmental Compliance with Mining Lease Projects. It also requires the Applicant to obtain a project environmental authority to cover the 3 leases, before undertaking any mining activities on the Old North Road lease that depend on, are associated with, or support mining activities on the other leases. The Applicant is in the process of transferring the other 2 leases to this Applicant so that a project authority can be obtained. At that time, the EPA will have the opportunity to impose relevant conditions for the entire project. [14] The construction of the former road extensively disturbed the surface of the land. The Applicant has demonstrated the ability to achieve nominated environmental outcomes, through the old security deposit system. There were no objections to the draft environmental authority. There is no information before me to indicate that the standard conditions imposed by the EPA are not appropriate to deal with the expected environmental impacts from this operation. S269(4)(k) Will the public right and interest be prejudiced? [15] No public infrastructure will be impacted on by these operations. The arrangements entered into with the Pine Rivers Shire Council result in a better road alignment and a more efficient mining operation across the project. It is also significant that there were no objections to this application. S269(4)(l) Has any good reason been shown for a refusal to grant the mining lease? [16] There does not appear to be any good reason to refuse the application. S269(4)(m) Taking into consideration the current and prospective uses of that land, is the proposed mining operation an appropriate land use? [17] On the basis of the evidence considered in relation to criteria (i), (j), (k) and (l), I consider the proposed activity to be an appropriate land use. -- 5 of 6 -- Other matters [18] The Applicant has requested the Minister recommend to the Governor-in-Council that the lease be granted without the condition usually imposed regarding the marking of the boundaries of the lease.7 Given the Applicant’s intention to operate the 3 leases as a project, I recommend the Minister give favourable consideration to the Applicant’s request that the condition specified in s. 276(1)(i) not be imposed on this lease. Recommendation: [19] 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 the mining lease be granted over the entire area sought for the purpose and the term sought by the Applicant. 7 s276(1)(i) -- 6 of 6 --