BHP Minerals Pty Ltd, QCT Mining Pty Ltd, QCT Investment Pty Ltd, QCT Management Ltd, BHP Queensland Coal Ltd and Mitsubishi Development Pty Ltd, Re [2001] QLRT 48

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Minerals Pty Ltd, QCT Mining Pty Ltd, QCT Investment Pty Ltd, QCT Management Ltd, BHP Queensland Coal Ltd and Mitsubishi Development Pty Ltd [2001] QLRT 48 PARTIES: In the Matter of Mining Leases 1789 and 1923 - applications by BHP Minerals Pty Ltd, QCT Mining Pty Ltd, QCT Investment Pty Ltd, QCT Management Ltd, BHP Queensland Coal Ltd and Mitsubishi Development Pty Ltd for additional surface areas FILE NOS: LXX 40047/2000 LXX 40050/2000 PROCEEDING: Applications for Additional Surface Areas DELIVERED ON: 18 July 2001 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Kingham DP ORDER: Application to dispense with a hearing rejected. (at [8]) CATCHWORDS: MINING – ADDITIONAL SURFACE AREA – DISPENSE WITH A HEARING – Mineral Resources Act 1989, ss 270(1), 269(4), 6A, 402, 319 COUNSEL: N/A SOLICITOR: Ms K Driver [1] KINGHAM DP: BHP Minerals Pty Ltd, QCT Mining Pty Ltd, QCT Investment Pty Ltd, QCT Management Ltd, BHP Queensland Coal Ltd and Mitsubishi Development Pty Ltd (“the Applicants”) applied for additional surface areas to be included in Mining Lease Nos 1789 and 1923. The Applicants requested I dispense with a hearing of the applications and deal with them on the papers. Ms Driver, a lawyer employed by one of the Applicants, made written submissions in support of the request on 25 June 2001. -- 1 of 3 -- [2] I may dispense with a hearing if satisfied as to matters specified in s 270(1). I am satisfied that the provisions of part 7 of the Act have been complied with in respect of the applications, on the basis of the Certificates of Application issued on 1 August 20001 and the Declarations of Posting and Advertising made on 12 September 2000.2 There were no objections to this application.3 There is no reserve land in the area applied for. The Applicants are the owners of the restricted land affected by these applications and have consented to them.4 I am, therefore, satisfied that the preconditions to exercising my discretion under s 270(1) have been met. [3] The Applicants have filed the following material:  Affidavit of Shane Hansen filed 2 February 2001;  Letter from the Department of Mines and Energy dated 9 March 2001;  Letter from the Department of Natural Resources dated 23 April 2001;  Affidavit of Peter Roe filed 25 June 2001. The Mining Registrar for the Emerald Mining District has provided other material to the Tribunal. [4] Whilst Mr Hansen’s affidavit is usefully presented to address each of the criteria I must consider in making my recommendation, it does imply that the infrastructure was constructed prior to the grant of the applications.5 Whilst it is difficult to match the infrastructure listed in the applications with the facilities referred to in his affidavit, Peter Roe appears to confirm that all the relevant infrastructure was constructed prior to the applications being made. [5] One of the criteria I must consider is whether the provisions of the Mineral Resources Act 1989 have been complied with.6 There is a question whether the Applicants have complied with the Act given the prohibition on unauthorised mining7 and the wide definition of mining, which includes “disposing of mineral in connection with, or waste substances resulting from, the winning or extraction”.8 It is not clear whether this definition captures any of the constructed infrastructure, nor have I had the benefit of 1 Exhibit B to Affidavit of Shane Hansen. 2 Exhibit E to Affidavit of Shane Hansen. 3 Exhibit K to Affidavit of Shane Hansen. 4 Exhibit A to Affidavit of Shane Hansen. 5 Paragraph 17, although paragraph 19 implies that the infrastructure is yet to be constructed. 6 Section 269(4)(a). 7 Section 402. -- 2 of 3 -- submissions on this point. It is also not clear whether a mining lease is required for the infrastructure and, if not, whether other permits were required or, indeed, were obtained.9 This matter is also relevant to the Applicants’ past performance, another criteria I must consider.10 [6] Ms Driver has submitted that: “at its highest, the tenement arrangements underpinning the location of the constructed infrastructure may be considered as irregular. That conclusion follows, because the infrastructure in question was conducted in accordance with plans of operations lodged with the Department of Mines and Energy and approved by it (Roe Affidavit, paragraphs 9 and 10).” [7] Mr Roe’s affidavit raises as many questions as it does answers and the basis for the conclusions expressed by him are not apparent on the face of the affidavit. Further, his conclusions are based, at least in part, on a conversation with Dan Cherry, the Mine Surveyor for the mines involved. The contents of the conversation are not deposed to, nor does Mr Roe assert his belief in what he was told. As it currently stands, I could give little weight to Mr Roe’s affidavit. [8] Prior to this Tribunal being invested with jurisdiction under the Act, the Mining Warden recommended the rejection of an application for a mining lease in circumstances where unauthorised activity took place prior to grant.11 Failure to comply with the provisions of the Act does not necessarily result in a recommendation to reject an application.12 Nevertheless, given the potential for such a recommendation and the unsatisfactory nature of the material provided on this issue, I am not prepared to exercise my discretion to dispense with a hearing. Accordingly, I reject the application to dispense with a hearing. I will hear submissions on a date for the hearing and the witnesses to be called. 8 Section 6A(1)(c). 9 The exemption from the requirements of planning legislation, for example, only applies to activities authorised under the Act, s 319. 10 Section 269(4)(g). 11 Application by MJ Mann for Mining Lease No 95288, Recommendation of Mr F W Windridge dated 24 May 2000. 12 Decision of Deputy President Smith in Re Aradon Pty Ltd [2001] QLRT 35 at para [40]. -- 3 of 3 --