Barry and Barrett, Re [2001] QLRT 54

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: In re Jason Andrew Barry and Rodney Keith Barrett [2001] QLRT 54 PARTIES: In the matter of an Application for Mining Lease No. 70234 by Jason Andrew Barry Jason Andrew Barry Applicant –and – Rodney Keith Barrett Objector FILE NO: LXX40016/2000 PROCEEDING: Application for mining lease DELIVERED ON: 27 July 2001 DELIVERED AT: Brisbane HEARING DATE: 4 & 5 April 2001 PRESIDING MEMBER: Smith DP ORDERS: 1. I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease 70234 be granted over the entire application area, for the purpose sought by the Applicant, for the term of 5 years, provided that such mining lease is subject to the following special conditions: (1) A special condition that the area of significantly disturbed land on the mining lease shall at no time exceed the area of 1 ha. For the purposes of this special condition, significantly disturbed land has the meaning as defined in the Environmental Protection Regulation 1998. (2) A special condition that the holder of the mining lease shall at all times maintain a roadway access for the owner of the property from the Graves Hill Fossicking Area through the mining lease toward the property cattle yards. -- 1 of 12 -- (3) The boundary fence line between the mining lease application area and Graves Hill Fossicking Area shall not be removed by the holder of the mining lease. (4) All haulage roads and other areas of potential dust shall be subject to frequent watering from a water truck and other appropriate means for reducing dust. (5) Subject to any provisions relating to occupational health and safety, the holder of the lease shall at all times allow the landholder access to the land the subject of the lease for the purpose of grazing and stockholding, except for the area of 1 ha of the said lease subject to significant disturbance from time to time and such further areas of land directly related to any such mining activities associated with the 1 ha area of significant disturbance. (at [54]) 2. Further, it is my recommendation to the Honourable the Minister for Natural Resources and Mines that unless mining lease 70234 is subject to the special conditions detailed above, the mining lease be rejected. (at [55]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION – SPECIAL CONDITIONS – NOISE – DUST – SIGNIFICANTLY DISTRUBED LAND – GRAVES HILL FOSSICKING AREA – RA1 - MINERAL RESOURCES ACT 1989, ss. 245, 252, 269, 276. ENVIRONMENTAL PROTECTION REGULATION 1998 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 ACI Operations Pty Ltd v. Quandamooka Lands Council Aboriginal Corporation [2001] QCA 119, applied Elliott v. Hicks [2001] QLRT 38, applied COUNSEL: N/A SOLICITORS: Mr N.M. Dale, agent for the Applicant -- 2 of 12 -- Mr G.T. Houen, agent for the Objector [1] SMITH DP: On 9 June 2000 Jason Andrew Barry (hereafter referred to as “the Applicant”) lodged Mining Lease Application No 70234 with the Mining Registrar, Emerald District. The Application was lodged pursuant to section 245 of the Mineral Resources Act 1989 (hereafter referred to as “the Act”) for the purpose of mining for sapphire and zircon. [2] One objection was duly lodged to the Mining Lease Application by Rodney Keith Barrett (hereinafter referred to as “the Objector”). The Objector is the landholder of the subject land. The grounds of Objection are as follows:- “1. To close to the only set of cattle yards on this freehold block. 2. Roadway into yards and dam and windmill will be mined, I won’t get access to the yards. 3. Dust from mining operation will settle on adjoining pasture making it useless for cattle. 4. Around cattle yards are several small paddocks and holding yards, mining operation will make these paddocks useless for holding cattle and grazing. 5. Fences will be destroyed making management of area very difficult. 6. The lease joins the Grave Hill fossicking area. People camping in the area will be affected by the mining. 7. The area in a small holding paddock will greatly reduce the value of Mt Clifford making it impossible to sell.” [3] The Application was heard in Emerald on 4 and 5 April with submissions provided by 20 April 2001. Part of the hearing was also conducted on site. The applicant was represented by an agent, Mr N.M. Dale. The Objector was represented by an agent, Mr G.T. Houen. -- 3 of 12 -- [4] Both the Applicant and the Objector were sworn and gave evidence at the hearing. My decision in this matter is principally based on their evidence and on the exhibits tendered. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account in making my recommendation. [5] In considering this matter, I have also applied, where relevant Sinclair v. Mining Warden at Maryborough and Anor1 and Beattie v. McGrady.2 I have also considered the provisions of the Act, in particular sections 252, 269 and 276. [6] For the purpose of this decision, I set out below, in summary form, the criteria specified in section 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 and the exhibits into the subheadings listed below based on each criterion set out in section 269(4) of the Act. Applying the decision of the Court of Appeal in ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation3 I have addressed each ground of objection under the relevant sub-heading. Section 269(4)(a) – Have the provisions of the Act been complied with? [7] On 26 June 2000, the Mining Registrar, Emerald District, issued a Certificate of Application (Exhibit 8). Pursuant to section 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. [8] In his evidence the Applicant said that to the best of his information, knowledge and belief, the requirements of the Act were fully complied with in all respects. Further, Exhibit 1 is a report from the Director-General, Department of Mines and Energy (as it then was) which also states that the provisions of the Act have been complied with. 1 (1975) 132 CLR 473. 2 (Unreported) Supreme Court of Queensland, Cullinane J, 20 July 1993. 3 [2001] QCA 119. -- 4 of 12 -- [9] I note that the underlying tenure is GHFL and that the native title provisions of the Act are not applicable to this application. [10] There are no grounds of objection which relation to this criterion. [11] 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? [12] The evidence of the Applicant and the exhibits show that the land applied for is within RA1. There are no grounds of objection which relate to this criterion. [13] Accordingly, applying my reasoning from Elliott v Hicks,4 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? [14] The exhibits reveal the Applicant’s proposed mining operations and program. They show appropriate development and utilisation of the mineral resources within the area applied for. [15] Further, there are no grounds of objection which relation to this criterion. 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? [16] The surface area of the land has been determined by a mining lease (recommended but not yet granted) on one side and the Graves Hill Fossicking Area on the other three sides. There is no evidence to indicate that the size and shape is not appropriate. 4 [2001] QLRT 38 at pp 117-120. -- 5 of 12 -- [17] No ground for objection has been made which specifically relates to this criterion. Grounds of objection which touch on the location of the proposed mining lease are dealt with under criteria 269(4)(i), (j) and (k). [18] I am satisfied that the size and shape of the mining lease application is appropriate. Section 269(4)(e) - Is the term sought appropriate? [19] The term sought in the application for this mining lease is 10 years. In his evidence the Applicant stated that, following discussions with the Objector, he has agreed to reduce the term to 5 years. [20] The applicant also gave evidence that 5 years is a sufficient time to work the application area. [21] I note that there is no ground of objection relating to this criteria. [22] In light of the evidence I am satisfied that a term of 5 years 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? [23] Part of Exhibit 7 details the net assets of the Applicant. Read in conjunction with the proposed plan of operations, I am satisfied that the Applicant has the requisite financial capabilities. He owns some of his own equipment. [24] The Applicant gave evidence that he has over 13 years’ experience in the mining industry. Over this long history, the Applicant’s evidence is that he has successfully worked for others on leases. He has held what he described as “one hand mining lease”.5 [25] I note that there is no ground of objection relating to this criteria. [26] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? 5 Transcript 4 April 2001 p 22 para [41]. -- 6 of 12 -- [27] With respect to this criterion, I also rely on the evidence relating to s 249(4)(f) above. [28] Although the Applicant has not previously held a mining lease, he has been the holder of a “hand mining lease”. Further, he has worked without incident in the industry for over 13 years. His evidence is that he has always been involved in a safe operation. [29] Further, there is no material before me to indicate any unsatisfactory past performance by the Applicant. There are no grounds of objection which relate to this criterion. [30] I find that the Applicant’s past performance has been satisfactory. 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? [31] As the subject land applied for is wholly within RA1, no such tenements can be held or applied for. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [32] With respect to this criterion, the Applicant gave evidence that in his view the application conforms with sound land use management. In his evidence, he made various statements regarding guarantees of access to cattle yards, use of water trucks to keep down dust, non-disturbance of boundary fencing and related issues. [33] Mr Houen, in both cross-examination of the Applicant and in submissions on behalf of the Respondent, has argued that whilst the Applicant and Objector may be able to happily co-exist in accordance with the evidence given by the Applicant, the Objector can have no certainty that the mining lease, if granted, will not be transferred to another party who may have entirely different views as to the manner in which the mining is to occur. Mr Houen argues that, potentially, the Objector must conduct his business as if the whole area of the mining lease will at all times be off limits to the Objector. -- 7 of 12 -- [34] The first 5 grounds of objection are relevant to this criterion. Those grounds are set out in paragraph [2] of this recommendation. [35] In my view, Mr Houen’s submissions fail to take into account the force of s 269(3) of the Act which is in the following terms: “(3) A recommendation may include a recommendation that the mining lease be granted subject to such conditions as the tribunal considers appropriate, including a condition that mining shall not be carried on above a specified depth below specified surface area of the land.” [36] If a mining lease is granted with special conditions, those special conditions are the conditions of the grant and any subsequent holder of the mining lease will also be subject to such special conditions. [37] I accept the evidence of the Objector regarding levels of interference that may occur to his pastoral operation, and in particular his cattle yards and holding yards, should this mining lease be granted. However, I also accept the evidence of the applicant that measures can be put in place to meet the requirements of the Objector. [38] Accordingly, it is my view that the proposed mining lease would conform with sound land use management if, but only if, specified special conditions were included as conditions of the mining lease pursuant to s 269(3). [39] The special conditions that I consider necessary to meet the requirements for this criterion are as follows:- 1) A special condition that the area of significantly disturbed land on the mining lease shall at no time exceed the area of 1 ha. For the purposes of this special condition, significantly disturbed land has the meaning as defined in the Environmental Protection Regulation 1998. 2) A special condition that the holder of the mining lease shall at all times maintain a roadway access for the owner of the property from the Graves Hill Fossicking Area through the mining lease toward the property cattle yards. -- 8 of 12 -- 3) The boundary fence line between the mining lease application area and Graves Hill Fossicking Area shall not be removed by the holder of the mining lease. 4) All haulage roads and other areas of potential dust shall be subject to frequent watering from a water truck and other appropriate means for reducing dust. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof. [40] As with virtually any mining operation, there will necessarily be environmental impacts. [41] I note the requirements contained in the EMOS (part of Exhibit 7) and the Applicant’s commitments with respect thereto. [42] The area of principal environmental concern with respect to this mining lease application as I see it relates to the issue of dust. Evidence produced by the Objector indicates that dust can be a highly significant issue on comparable areas of his property as a result of mining operations. [43] I note the commitments of the Applicant with respect to use of a water truck to reduce dust. However, no report is attached to the EMOS relating to dust. [44] Accordingly, provided a special condition as set out in the preceding criterion is included in the grant of the mining lease relating to watering of roads and other areas of potential dust, it is my view that, although as stated previously there will virtually inevitably be environmental impacts in any mining operation, I am satisfied that the extent of those impacts is not sufficient to, nor to such an extent to, prevent me from making a recommendation to the Honourable the Minister for Natural Resources and Mines that the mining lease be granted. Section 269(4)(k) – Will the public right and interest be prejudiced? [45] The mining lease application is bordered on 3 sides by the Graves Hill Fossicking Area. A gazetted road runs along 2 of those boundaries. The evidence shows that there are no public roads or other public utilities on the -- 9 of 12 -- application area. Further, there appears to be no endangered flora or fauna within the application area. [46] Ground of objection No 6 by the Objector is in the following terms:- “The lease joins Graves Hill Fossicking Area. People camping in the area will be affected by the mining.” [47] With respect to this criterion, Exhibit 1, being the report from the Director- General, Department of Mines and Energy, had this to say:- “The Department of Mines and Energy is not aware of any factors prejudicial to the public right or interest having been identified in respect of this application.” [48] In my view, there is potential for people camping in the Graves Hill Fossicking Area to be adversely affected by the proposed mining operation. Principally, it is my view, based on the evidence before me, that campers may be adversely affected by noise from the operations, and by dust. As regards noise, to a degree it must be accepted by campers undertaking fossicking in a fossicking area, surrounded by RA1, in a known area of high mining activity, that there will inevitably be some noise. The same can be said of dust. With respect to dust, it is my view that, provided the special condition referred to in paragraph [39] of this recommendation is incorporated into the lease regarding frequent watering to reduce dust, then any disturbance that may result to campers in the Graves Hill Fossicking Area will not be such as to rule against a favourable recommendation in this matter. [49] The evidence 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, the EMOS can be amended to put forward specific site protection or site avoidance strategies. Specifically with respect to sites of indigenous significance, 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. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? -- 10 of 12 -- [50] As indicated earlier in these reasons, accepting the evidence of the Objector, there are good reasons why this application should be refused. However, provided the special conditions as set out in detail at the conclusion of this recommendation are included as conditions of the grant, it is my view that those concerns will have been satisfactorily answered. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [51] Objection No 7 by the Objector is in the following terms:- “The area in a small holding paddock will greatly reduce the value of Mt Clifford making it impossible to sell.” [52] The applicant has given evidence that it is his intention to interfere with the pastoral operations of the landholder Objector as little as possible. In order to achieve this outcome, it is my view that a further special condition should be included in the conditions of the lease in the following terms:- “Subject to any provisions relating to occupational health and safety, the holder of the lease shall at all times allow the landholder access to the land the subject of the lease for the purpose of grazing and stockholding, except for the area of 1 ha of the said lease subject to significant disturbance from time to time and such further areas of land directly related to any such mining activities associated with the 1 ha area of significant disturbance.” [53] As indicated throughout this recommendation, there are two conflicting land uses for this land. It is my view that, pursuant to the proposed special conditions, it is possible for both the mining and pastoral interests to co-exist. Recommendation [54] Taking into account all the evidence before me and, in particular, the evidence referred to above, I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease 70234 be granted over the entire application area, for the purpose sought by the Applicant, for the term of 5 years, provided that such mining lease is subject to the following special conditions: 1. A special condition that the area of significantly disturbed land on the mining lease shall at no time exceed the area of 1 ha. For the purposes of -- 11 of 12 -- this special condition, significantly disturbed land has the meaning as defined in the Environmental Protection Regulation 1998. 2. A special condition that the holder of the mining lease shall at all times maintain a roadway access for the owner of the property from the Graves Hill Fossicking Area through the mining lease toward the property cattle yards. 3. The boundary fence line between the mining lease application area and Graves Hill Fossicking Area shall not be removed by the holder of the mining lease. 4. All haulage roads and other areas of potential dust shall be subject to frequent watering from a water truck and other appropriate means for reducing dust. 5. Subject to any provisions relating to occupational health and safety, the holder of the lease shall at all times allow the landholder access to the land the subject of the lease for the purpose of grazing and stockholding, except for the area of 1 ha of the said lease subject to significant disturbance from time to time and such further areas of land directly related to any such mining activities associated with the 1 ha area of significant disturbance. [55] Further, it is my recommendation to the Honourable the Minister for Natural Resources and Mines that unless mining lease 70234 is subject to the special conditions detailed above, the mining lease be rejected. -- 12 of 12 --