Darby, Re [2001] QLRT 96

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re David Josef Darby [2001] QLRT 96 PARTIES: In the Matter of Application for Mining Lease No. 60321 by David Josef Darby FILE NO/S: AML00080/2001 PROCEEDING: Application for mining lease DELIVERED ON: 19 December 2001 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Smith DP ORDER/S: 1. Hearing dispensed with. (at [4]) 2. I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that ML 60321 be granted over the entire application area for the purpose and the term sought by the Applicant. (at [30]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION Mineral Resources Act 1989, ss. 245, 252, 252A, 252C, 269, 270, 276, 657 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 COUNSEL: N/A SOLICITORS: N/A [1] SMITH DP: On 22 February 2001 David Josef Darby (hereafter referred to as “the Applicant”) lodged Mining Lease Application No. 60321 with the Mining Registrar, Quilpie 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 opal. -- 1 of 6 -- [2] No objections were duly lodged to the Mining Lease Application. [3] The Applicant has requested that the application be dealt with 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. [4] I may dispense with a hearing if satisfied as to matters specified in s. 270(1). For reasons that follow, I am satisfied that the provisions of part 7 of the Act have been complied with in respect of the application. I note that there were no objections to this application. It appears there is neither reserve nor restricted land in the area applied for. I am, therefore, satisfied that the preconditions to my exercising the 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 note that this application is on non-exclusive land. I further note the Directions Hearing conducted by President Koppenol on 7 December 2001. Following submissions by the State as to the effect of s. 657 of the MRA, the President excused the State from the matter. Further, on 7 December 2001, the President, on the basis that the native title provisions of the MRA no longer apply, constituted the Tribunal by myself as a single Presiding Member. I take judicial notice of the decisions made by the President in this regard. 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. [5] In taking account of and considering the criteria specified in s. 269(4) of the Act, I have relied on the Additional Information and Statutory Declaration of the Applicant sworn on 1 October 2001. 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. [6] 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 -- 2 of 6 -- (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. [7] 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 exhibits 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? [8] On 22 February 2001, the Mining Registrar, Quilpie District, issued a Certificate of Application which was accepted by the Applicant on 22 February 2001. Pursuant to s. 252(1) of the Act, the Mining Registrar can only issue a Certificate of Application 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. [9] Pursuant to s. 252A of the Act a Certificate of Public Notice was issued by the Mining Registrar on 14 August 2001. The Certificate was accepted by the Applicant on 20 August 2001. [10] 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? [11] The application area is in a known opal field, RA25, and is surrounded by mining leases. [12] Accordingly, I am satisfied that the land applied for is 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? -- 3 of 6 -- [13] The material before me reveals the Applicant’s proposed mining operations and program, and shows appropriate 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? [14] The material before me reveals a mining lease application of an appropriate size and shape in light of the Plan of Operations. The boundaries have been determined by surrounding tenements. There is no evidence to indicate that the size and shape is not appropriate. Section 269(4)(e) – Is the term sought appropriate? [15] The term sought for this mining lease is 10 years. The material reveals the term sought is consistent with the Plan of Operations. I note that harsh weather conditions prevent year round mining. I am satisfied that the term sought is appropriate. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [16] Documents and evidence provided to the Tribunal show that the Applicant has the financial capabilities to carry on the mining operations. [17] It is also clear that the Applicant has the necessary technical capabilities to carry on mining operations under the proposed mining lease. [18] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [19] With respect to this criterion, I also rely on the evidence relating to s. 249(4)(f) above. [20] The Applicant has had 10 years mining experience, and his sworn evidence is that no enforcement action has been taken against him. The Mining Registrar is unaware of any such action against the Applicant. There is no evidence before me to suggest unsatisfactory past performance by the Applicant. -- 4 of 6 -- 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? [21] The Applicant holds PP 61023. There is nothing in the material to indicate any disadvantage to any other person. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [22] The draft environmental authority issued in relation to this application requires compliance with Standard Environmental Conditions. 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. [23] A draft environmental authority was issued on 2 March 2001, which requires the Applicant to carry out activities in accordance with the Code of Environmental Compliance for Mining Lease Projects. 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 Code. Section 269(4)(k) – Will the public right and interest be prejudiced? [24] The material before me indicates that there are no public roads or other public utilities on the application area. [25] There appears to be no endangered flora or fauna within the application area. [26] 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. -- 5 of 6 -- [27] I am satisfied that the public right and interest will not be prejudiced should this mining lease be granted. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [28] 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? [29] The materials show that the project is for the extraction of a potentially valuable resource in accordance with the environmental authorities. The application is consistent with RA25. I am accordingly satisfied that the proposed mining operation is an appropriate land use. Recommendation [30] 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 ML 60321 be granted over the entire application area for the purpose and the term sought by the Applicant. -- 6 of 6 --