Barton, Re [2001] QLRT 80

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Kent Barton [2001] QLRT 80 PARTIES: In the Matter of Mining Lease No. 60318 - Application by Kent Barton for Mining Lease FILE NO: OTX70005/2001 PROCEEDING: Application for mining lease DELIVERED ON: 13 November 2001 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Kingham DP ORDER: 1. Hearing dispensed with. (at [3]) 2. 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. (at [18]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION Mineral Resources Act 1989, ss. 270, 252(1), 269(4), 270, 669 Environmental Protection Act 1994, s. 590 COUNSEL: N/A SOLICITORS: N/A [1] KINGHAM DP: This is an application by Kent Barton under s. 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 1.1018 ha. area of land on the Yowah Opal Field - 200 kilometres west of Cunnamulla for the purpose mining opal. The Application was lodged with the Mining Registrar for the Quilpie mining district on 23 October 2000. No objections to the Application were lodged during the public objection period, which ended on 20 November 2000. -- 1 of 6 -- [2] The land is subject to native title claims by the Mardigan and Budjiti Peoples. Whilst no objections were lodged to the application by those claimants, the Applicant referred the matter to the Tribunal for a native title issues decision.1. The outstanding requirements of the native title provisions of the Act were only concluded shortly prior to 7 November 2001. On that day, representatives of both the State of Queensland and the native title claimants confirmed that an agreement had been reached and that the Tribunal was not required to take further action in relation to the native title provisions. The Applicant has requested the application be considered 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. Request to dispense with a hearing - Section 270: [3] I may dispense with a hearing if satisfied as to matters specified in s. 270(1). For reasons that follow at paragraph 5, I am satisfied that the provisions of part 7 of the Act have been complied with in respect of the application. 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 matters that I must consider in making my recommendation on this application. 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. Section 269(4) criteria: [4] In taking account of and considering the matters specified in s. 269(4), I have relied upon the Additional Information and Statutory Declaration of Kent Barton sworn on 5 July 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 1 s. 669. -- 2 of 6 -- 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 23 October 2000, the Mining Registrar issued a Certificate of Application, which he can only do 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.2 The Applicant lodged a Declaration of Posting and Advertising within the time required.3 The native title claimants have lodged Notices of Non- Objection and a compensation agreement has now been reached between them and the Applicant. I am satisfied that the requirements of Part 7 and of the native title provisions of the Act have now been complied with. 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. The area sought is within Restricted Area 25 (RA25).4 Numerous mining leases surround the area applied for. I take both these factors into account as evidence of mineralisation. The Applicant has also prospected the area by dowsing and has had access to the results of testing on a neighbouring lease. I am satisfied that the 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? [7] Exploration permits cannot be granted within RA25.5 However, the Applicant believes that the area is a continuation of a shallow run with depth varying from just below the topsoil to a maximum depth of 1 – 1.5m. The lease will be worked in segments of 10m², with trenching, processing and rehabilitation being conducted on a progressive basis. Open excavations more than 1m deep will be fenced. Shallower excavations will be clearly marked, with the banks bevelled for safety. There is no evidence before me to indicate that there will not be a satisfactory level of development and utilisation of the mineral resources within the area applied for. 2 Section 252. 3 Section 252. 4 Sections 4 and 63 & Schedule 4, Mineral Resources Regulation 1990. 5 Schedule 4, Mineral Resources Regulation 1990. -- 3 of 6 -- 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? [8] The boundaries of the lease were determined by the boundaries of adjoining mining leases and to allow unrestricted access from an existing road. There is no evidence before me to indicate that the size and shape is not appropriate. Section 269(4)(e) - Is the term sought appropriate? [9] The Applicant has sought a term of 10 years to allow full exploitation of the resource and rehabilitation of the area, given the seasonal nature of mining on the field due to the harsh summer climate. I consider the term is appropriate for the operation proposed. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [10] The Applicant submitted a Statement of Financial and Technical Resources with the Application. Mr Barton has been working with his brother on this opal field since 1983. He managed a 3.4ha lease from 1986 and was formerly a partner in a gold mining lease. The Applicant has sufficient capital and income resources to finance an operation of this scale. I am satisfied the Applicant has the necessary financial and technical capabilities to carry on the proposed operations. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [11] I have noted the Applicant’s former mining experience above. He has sworn that no enforcement action has been taken against him during that time. The Mining Registrar at Quilpie is not aware of any such action against the Applicant. There is no evidence before me to suggest unsatisfactory past performance by the Applicant. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permit or mineral development licences or existing Applicant for exploration permits or mineral development licences? [12] The only relevant exploration tenure is the Prospecting Permit held by the Applicant. -- 4 of 6 -- Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [13] The land is currently utilised by the owners for low intensity grazing. The owners have not objected to the application. The area applied for is small and will be worked progressively to limit the area disturbed at any one time. There is no evidence before me to suggest that the operations do not conform with sound land use management. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof. [14] This will be an opencut operation to a maximum depth of 2m. No shafts will be dug. No person will camp on the lease. The area is lightly timbered desert land and established trees will be avoided. The applicant lodged an Environmental Management Overview Strategy (EMOS) which contains standard commitments for this type of operation. An environmental authority has been issued to take effect upon the grant of the mining lease, which requires the Applicant to conduct his operations in accordance with the EMOS6. I am satisfied that the environmental impacts will be adequately dealt with by compliance with the conditions of the environmental authority. Section 269(4)(k) – Will the public right and interest be prejudiced? [15] There is no relevant public infrastructure on the lease. There is no evidence before me that indicates the public right and interest would be prejudiced by the grant of the mining lease. It is significant that there was no objection to the Application, either by the landowner or the native title claimants. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [16] There is 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? [17] 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. 6 s. 590 Environmental Protection Act 1994. -- 5 of 6 -- Recommendation: [18] 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 area sought for the purpose and the term sought by the Applicant. -- 6 of 6 --