ACI Operations Pty Ltd (No 5) [2001] QLRT 28

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re ACI Operations Pty Ltd [No 5] [2001] QLRT 28 PARTIES: In the Matter of Application for Mining Lease No. 7064 by ACI Operations Pty Ltd FILE NO: LXX40043/2000 PROCEEDING: Application for mining lease DELIVERED ON: 22 May 2001 DELIVERED AT: Brisbane HEARING DATE/S: 11 & 15 May 2001 PRESIDING MEMBER: Koppenol P ORDER/S: 1. Hearing dispensed with. (at [8]) 2. I recommend to the Honourable the Minister for Natural Resources and Mines that Application for Mining Lease No. 7064, applied for by the Applicant for the mining of silica sand, rutile, zircon and ilmenite/leucoxene, be granted over the whole of the application area (52.9034ha) for the term of 10 years. (at [30]) CATCHWORDS: MINING – MINING LEASE – APPLICATION FOR – DISPENSING WITH HEARING – RECOMMENDATION Mineral Resources Act 1989, ss. 7.21(8)(a), 238(2), 245, 252(1), 252(9), 252C, 269, 270, 727, Second Schedule s. 3(10)(c) Native Title Act 1993 (Cth) Land and Resources Tribunal Act 1999, ss. 39, 40 Acts Interpretation Act 1954, s. 20 Environmental Protection Act 1994, s. 591 Re New Acland Coal Pty Ltd [2001] QLRT 5, applied Re New Oakleigh Coal Pty Ltd [2000] QLRT 4, applied -- 1 of 12 -- Re ACI Operations Pty Ltd v. Quandamooka Lands Council Aboriginal Corp [2001] QCA 119, applied Re BHP Minerals Pty Ltd & Ors [2001] QLRT 13, applied Re News Corporation Ltd (1993) 11 ACLC 733, followed COUNSEL: N/A SOLICITORS: Ms Z. Farmer, for the Applicant [1] KOPPENOL P: This is an application by ACI Operations Pty Ltd (ACI) (the Applicant) under s. 245 of the Mineral Resources Act 1989 (MRA) for the grant of a mining lease. The Tribunal’s role is to make a recommendation to the Honourable the Minister for Natural Resources and Mines that the application be granted or rejected, as the case may be, in whole or in part: s. 269(4) & (5). [2] The application is for a lease to mine silica sand, rutile, zircon and ilmenite/leucoxene. The land concerned is situated on North Stradbroke Island, in the Brisbane district. [3] The evidence before the Tribunal consisted principally of an affidavit (and supporting documentary appendices) by James Jeffrey Marshall, the State Manager of ACI. That evidence was not disputed. Written and oral submissions were also made by the Applicant’s lawyer and they have been of assistance to me – as was a view of the subject (and other) land on North Stradbroke Island on 15 May 2001.1 [4] On 11 April 2001, following submissions by the Applicant’s lawyer, I ordered (pursuant to ss. 39 and 40 of the Land and Resources Tribunal Act 1999) that the Tribunal be constituted for this matter by me. 1 Present on the view were 2 Tribunal staff and myself, as well as Ms Farmer (ACI’s lawyer) and Mr Marshall. -- 2 of 12 -- Dispensing with hearing [5] Ms Farmer, who appeared for the Applicant, applied for the Tribunal to dispense with a hearing under s. 270 of the MRA, and to deal with the matter on the basis of the affidavit evidence and submissions. [6] Dispensing with a hearing is a discretionary procedure which can occur if the Tribunal is satisfied that (a) the provisions of part 7 of the MRA have been complied with, (b) no objection to the grant of the mining lease has been duly lodged, (c) the owner of any surface area reserve land consents, and (d) the owner of any s. 238(2) restricted land consents: s. 270(1)(a)-(d) [7] For reasons which will appear, I am satisfied that criterion (a) has been complied with. Mr Marshall’s evidence establishes that (b) although 3 objections (including one from the native title claimants) were lodged, they were later withdrawn,2 (c) although the application relates to land that is the surface of a (water supply) reserve, the owner (the (former) Department of Natural Resources) has consented to the grant of ML7064 and that consent has been lodged with the mining registrar, and (d) no s. 238(2) restricted land is involved. [8] In the circumstances, I regard this as an appropriate case to dispense with a hearing under s. 270. I order accordingly. Native title [9] The mining lease application area covers an area which is subject to an existing native title claim. The State of Queensland adopts the view that the grant of ML7064 would be a “past act” under the Native Title Act 1993 (Cth). Accordingly the mining registrar did not issue a notice under s. 727 of the MRA which would have activated the various native title (right to negotiate) provisions of the MRA.3 The Court of Appeal has said that the Tribunal must 2 In Re New Oakleigh Coal Pty Ltd [2000] QLRT 4, at [8], I held that cognisance need not be taken for the purposes of s. 270(1)(b) of objections which had been withdrawn. 3 See Affidavit of J.J. Marshall filed 11.05.01, paras. 22-23, Ex. E (DME letter 26.09.00); Affidavit of N.J. Krosch filed 08.11.00, para. 3. -- 3 of 12 -- act on the mining registrar’s decision and cannot itself review it.4 No native title issues are therefore relevant for present purposes. Section 269 criteria [10] I turn now to the s. 269(4) criteria which are required to be taken into account and considered in a case such as this. Section 269(4)(a) – Have the provisions of the Mineral Resources Act been complied with? [11] The application for ML7064 was lodged with the Department of Resources Industries (now called the Department of Natural Resources and Mines) on 28 February 1990. The application was referred to this Tribunal by the mining registrar on 27 September 2000. A certificate of application was issued by the mining registrar on 8 March 1991. Under s. 252(1) of the MRA,5 it is a prerequisite to the issue of such a certificate that the mining registrar be satisfied that the Applicant is an eligible person and that the Applicant has complied with the requirements of the MRA with respect to the application. I am not aware of any material which disputes that conclusion and I am satisfied from Mr Marshall’s evidence as to the Applicant’s compliance. Compensation issues have been resolved by agreement with respect to the (previously mentioned) reserve land over which the application is sought. The Applicant has also lodged with the mining registrar the s. 252(9) declaration of posting and advertising.6 Although s. 252(9) was repealed on 1 January 2001 and replaced by a slightly different provision (s. 252C), I am satisfied that s. 20 (Saving of operation of repealed Act etc) of the Acts Interpretation Act 1954 relevantly preserves the operation and effect of the former s. 252(9) and that compliance with that 4 ACI Operations Pty Ltd v. Quandamooka Lands Council Aboriginal Corp [2001] QCA 119, at [8], [74]. 5 Pursuant to s. 3(10)(c) of the Second Schedule (Savings, Transitional and Validation) of the MRA as enacted, the subject application (which had been lodged under the Mining Act 1968) was deemed to be an application under the MRA and the provisions of the MRA (other than one section which is not applicable in the present case) applied to the application. 6 The declaration was lodged within 7 days of the date fixed by the mining registrar for the close of objections (5 April 1991). Although the date for the close of objections was subsequently extended under (the former) s. 7.21(8)(a) of the MRA after the mining registrar received a copy of the environmental impact statement, the MRA provisions dealing with posting the certificate of application on the datum post until the close of objections and subsequently lodging the declaration about advertising and posting do not appear to apply to that date as so extended. -- 4 of 12 -- provision, and not with the new s. 252C, is that which is required in the present case. I am satisfied that this criterion has been established. Section 269(4)(b) - Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [12] The lease is required for the mining of silica sand, rutile, zircon and ilmenite/leucoxene. The principal product, silica sand, is used mainly for glass manufacture. The other minerals are known as heavy minerals,7 and are produced in small quantities as processing by-products. Mr Marshall said (and I accept) that through a drilling and sampling program on the application area in 1998, an inferred resource of 4.4 million tonnes of glass grade sand was estimated. The heavy minerals are extractable in low volumes. I am satisfied that this criterion has been established. 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? [13] Mr Marshall said (and I accept) that ACI currently produces 800,000 tonnes of sand from its existing operations on North Stradbroke Island, for the local and export markets. The grant of ML7064 would allow that level of production (which is regarded as an appropriate scale for the market and size of the resource) to be maintained. All of the processing would continue to be conducted at the existing processing plant located on ACI’s adjoining ML1124. The workforce and contractors are local residents. The operation would be based on maximum extraction (within economic limits) of the known resource. I am satisfied that this criterion has been established. 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 area applied for is a triangular shape containing 52.9034ha.8 It adjoins ML1124, thereby allowing all existing infrastructure (offices, plant, workshops, stockpile areas and water bores) on ML1124 to be utilised for mining of ML7064. I accept Mr Marshall’s evidence that apart from 2 creeks (the 7 For additional information about heavy minerals contained in mineral sand deposits, see Minerals Council of Australia, Facts on Minerals – Mineral Sands, <http://www.minerals.org.au>, date site visited 21 May 2001. 8 A larger area was previously applied for and subsequently partially abandoned. -- 5 of 12 -- integrity of which the Applicant is committed to maintaining), the remainder of the application area is suitable for dry mining of sand (the method to be adopted in this case) and to allow for maximum extraction of the resource. I am satisfied that this criterion has been established. Section 269(4)(e) – Is the term sought appropriate? [15] The term applied for is now 10 years.9 Mr Marshall said (and I accept) that that term is appropriate for the size of the resource and production rate envisaged. It will allow for pre-mining stripping, followed by mining (which is expected to take 4 to 5 years) and rehabilitation within the term. I am satisfied that this criterion has been established. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [16] I accept Mr Marshall’s evidence that the Applicant has mined on North Stradbroke Island since 1969. The personnel responsible for mining are very experienced in this type of operation and operations on ML7064 will be an extension of the same type of mining. I also accept Mr Marshall’s evidence that ACI has demonstrated, through more than 30 years of operation, that it is both technically and financially capable of managing the operation. The Applicants are therefore experienced mining operators in this field. I am satisfied that this criterion has been established. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [17] The Environmental Management Overview Strategy (EMOS) records ACI’s commitment to mine in accordance with all statutory requirements applicable to the mining lease.10 I accept Mr Marshall’s evidence that ACI’s performance against the (various) commitments given in the EMOS has been audited annually and compared with DME (now DNRM) guidelines – which has resulted in a Performance Category 3 rating and a 45% discount on its security deposit. All new employees and contractors undertake a site induction program, dealing with employees’ responsibilities under the EMOS and Plan of 9 The original term applied for was 50 years but has since been reduced. -- 6 of 12 -- Operations and an awareness of cultural heritage issues. ACI has never received Departmental notices of a formal nature (eg, show cause) as a result of any non-compliance with statutory requirements. There does not appear to be any material before me which suggests that the Applicant’s past performance has been anything other than satisfactory. I am satisfied that this criterion has been established. 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? [18] ML7064 adjoins ML1124, the site of ACI’s current mining and processing activities. Access to ML7064 will be via ML1124. There is no evidence that there are any other such tenement holders (or applicants therefor). Assuming that to be so, no relevant disadvantage should therefore result. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [19] Mr Marshall said (and I accept) that the pre-mining capability land use of the proposed lease area is bushland, which is unsuitable for either cultivation or grazing. The EMOS contains several commitments relating to final landform and revegetation, the object of which is to restore the land (post-mining) to its pre-mining condition of bushland. The commitments and rehabilitation techniques are similar to those which are being applied successfully in ACI’s ML1124 operation. The EMOS has been accepted by the (former) Department of Mines and Energy.11 I am satisfied that this criterion has been established. Section 269(4)(j) – Will there be any adverse environmental impact caused by the proposed operations, and if so, the extent thereof. [20] The mining method proposed to be used on ML7064 will be similar to that currently employed on ML1124, where sand is won by excavating from a pit. The sand is dry mined by a front-end loader and loaded to a feed hopper. The feed passes through a trommel screen, which removes large foreign bodies such as tree roots. The screened sand is then pumped as a slurry to the processing 10 EMOS, July 2000, p. 3. 11 For reasons similar to those set out in Re New Acland Coal Pty Ltd [2001] QLRT 5, I am satisfied that the provisions of s. 591 of the Environmental Protection Act 1994 are not applicable to this application. -- 7 of 12 -- plant on ML1124. Mining will generally be conducted as a 5-day week, 24 hours per day operation, for a total of about 100 operating hours per week. The nearest housing area is about 1km from ML7064 and the township of Dunwich is situated about 3km away.12 [21] The EMOS reveals that the mining and related activities will have a number of impacts upon the environment in the application area. These include various impacts on land resources, water resources, noise, air quality, conservation values, heritage and cultural issues and social issues. However numerous control measures and other strategies and commitments were set out in the EMOS to deal with or to lessen the adverse impacts which would otherwise have occurred. These include rehabilitation and revegetation, water recycling, use of settling ponds/sediment traps, maintaining buffer zones around creeks, water management and monitoring, waste management, noise and dust control, responding to statutory requirements with respect to conservation issues, cultural heritage awareness and consultation and communication with the local community. Although the Environmental Impact Statement (EIS) recorded various Aboriginal cultural concerns by members of the Quandamooka Land Council,13 it is significant that following a lengthy mediation process which had been facilitated by the Tribunal, Quandamooka’s objections to this application were withdrawn on 8 May 2001. [22] The EMOS records ACI’s environmental policy in the following terms:14 “It is ACI Industrial Minerals Division’s policy to achieve a high standard of environmental care in conducting its business as a resources and industrial company contributing to society’s material needs. ACI Industrial Minerals Division’s approach to environmental management seeks continuous improvement in performance by taking account of evolving scientific knowledge and community expectations. ACI Industrial Minerals Division will comply with all applicable laws, regulations and standards, uphold the spirit of the law, and where the laws do not adequately protect the environment, apply standards that minimise any adverse environmental impacts resulting from its operations, products or services.” Compliance with this policy and with the EMOS commitments should reduce as much as possible the environmental impact caused by the proposed operations 12 EMOS, pp. 3-4. 13 EIS, August 1999, pp. 8.4, 8.5. 14 EMOS, p. 2. -- 8 of 12 -- and by the disturbance to the land which will occur during the period of mining. Assuming that those measures are taken, I am not satisfied that there will be such an adverse environmental impact as to warrant an unfavourable recommendation in the present application. Section 269(4)(k) – Will the public right and interest be prejudiced? [23] Mr Marshall said that ACI is cooperating with the Queensland Government to allow ACI’s granted mining lease (ML1132) to be preserved as a national park, if equivalent mining resources were available elsewhere on North Stradbroke Island. Due to environmental reasons, only the top (north-west) portion of ML7064 is now being sought – see Figure 1 (below).15 That resulted in a significant reduction in the mining lease application area and also in the quantity of mineable sand which is available. Sand resources in ACI’s existing lease (ML1124) are close to exhaustion. Mr Marshall also said that if ML7064 were granted, in the short term, mining on ML1132 can be avoided while the possibility of mining an area to the south of ML7064 (and to the south-east of Dunwich), known as The Pines (MLA50135 and 50136), is further considered and progressed. If the requisite approvals could be secured and economic factors were satisfactory, Mr Marshall said that ACI would move to The Pines once mining on ML7064 was complete and so avoid mining ML1132 altogether – thus preserving it as a national park and reducing truck traffic along East Coast Road (which runs from Dunwich to Point Lookout via ML1132). Product from The Pines would not be transported along this road. Whereas if ML7064 were not granted, in order to maintain continuity of supply of product, ACI would have to move to ML1132 as soon as it could be made ready for mining. Having done that, ACI could then decide to stay on ML1132 and not progress development of The Pines. [24] I have taken these different scenarios into account. 15 Figure 1 is an extract from a cadastre mining leases diagram (Department of Mines and Energy, 1 March 2001) which was handed up by Ms Farmer during submissions on 11 May 2001 (see ts p.3 LL 37-40). -- 9 of 12 -- [25] Mr Marshall said (and I accept) that ACI’s North Stradbroke Island operations contribute significant revenue (a) to the State of Queensland through royalty payments, taxes, export income, Port Authority revenue and lease rental, and (b) to the local community through rates to the local shire council, employment of FIGURE 1 -- 10 of 12 -- island residents, purchase of infrastructure, plant and consumables locally, utilisation of other services and specialist industries and direct benefits to the Quandamooka Aboriginal community. [26] The operation supplies silica sand for glass-making to the Brisbane Glassworks owned by ACI. Mr Marshall said (and I accept) that a significant reason for the glassworks being located in Brisbane is the ready supply of silica sand from North Stradbroke Island. The glassworks contributes employment, taxes, rates etc to the local Brisbane economy. Export sand is mined, washed and spiralled, then trucked to Dunwich and loaded on to dedicated barges and transported to Brisbane for warehousing prior to export. [27] I am satisfied that no factors prejudicial to the public right and interest have been identified. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [28] Having regard to the matters previously discussed and to the material filed in respect of this application, in my view no good reason has been shown for a refusal to grant the mining lease sought. 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] Mr Marshall says that (a) the material provided by the Applicant demonstrates that the Applicant has taken into account land use suitability and environmental impacts and would manage these in a reasonable manner, (b) the mining project would have positive benefits for the whole community, and (c) in the circumstances, the development and operation of ML7064 is an appropriate land use. I am satisfied that this criterion has been established. Recommendation [30] For the foregoing reasons, I recommend to the Honourable the Minister for Natural Resources and Mines that Application for Mining Lease No. 7064, applied for by the Applicant for the mining of silica sand, rutile, zircon and -- 11 of 12 -- ilmenite/leucoxene, be granted over the whole of the application area (52.9034ha) for the term of 10 years. -- 12 of 12 --