Adams and Tobler, Re [2001] QLRT 22

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Reginald Noel Adams and Kenneth Arthur Tobler [2001] QLRT 22 PARTIES: In the Matter of Application for Mining Lease No 20341 by Reginald Noel Adams and Kenneth Arthur Tobler FILE NO: LXX40010/2001 PROCEEDING: Application for Mining Lease DELIVERED ON: 2 May 2001 DELIVERED AT: Brisbane HEARING DATE: 17 March 2001 PRESIDING MEMBER: Smith DP ORDER/S: I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease 20341 be granted over the entire application area, for the purpose of mining and camp sought by the Applicants, for the term of 25 years, provided that the conditions set out in the Agreement between the Herberton Shire Council and the Applicants contained in Exhibit 9 and detailed in paragraph 42 of these reasons are included as conditions of the mining lease, and provided further that the mining lease be granted for the mining of the mineral Diatomaceous Earth (Diatomite) only. (at [46]) CATCHWORDS: MINING – MINERAL – ROCK– DIATOMACEOUS EARTH - MINING LEASE – REHABILITATION – RECOMMENDATION Mineral Resources Act 1989, ss. 252(1), 269(4), 276(1), Dictionary Schedule 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 -- 1 of 10 -- COUNSEL: N/A SOLICITORS: Reginald Noel Adams and Kenneth Arthur Tobler represented themselves REASONS FOR JUDGMENT [1] SMITH DP: On 5 December 2000 Reginald Noel Adams and Kenneth Arthur Tobler (hereafter referred to as “the Applicants”) lodged Mining Lease Application No. 20314 with the Mining Registrar, Mareeba District. The Application was lodged pursuant to s. 245 of the Mineral Resources Act 1989 (hereafter referred to as “the Act”) for the purposes of mining diatomaceous earth and for a camp. [2] Two objections were duly lodged to the Mining Lease Application. However, the objections were subsequently withdrawn (see Exhibits 8 and 9). [3] The Application was heard in Brisbane on 17 March 2001. The Applicants represented themselves and appeared by telephone. [4] The Applicants were sworn and gave evidence at the hearing. I have relied upon their evidence and the exhibits tendered during the course of the hearing. My decision in this matter is principally based on the evidence of the Applicants and on the exhibits. 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 Anor (1975) 132 CLR 473 and Beattie v. McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993. I have also considered the provisions of the Act, in particular sections 252, 269, 276 and the Dictionary Schedule. [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 -- 2 of 10 -- components of the Applicants evidence and the exhibits into the subheadings listed below based on each criterion set out in section 269(4) of the Act. Section 269(4)(a) – Have the provisions of the Act been complied with? [7] On 8 December 2000, the Mining Registrar, Mareeba District, issued a Certificate of Application (Exhibit 5). Pursuant to section 252(1) of the Act, the Mining Registrar can only issue a Certificate of Application if satisfied that the Applicants are eligible to apply for the mining lease and have complied with the requirements of the Act with respect to the application. [8] The Applicant Adams gave evidence that in his opinion all the provisions of the Act had been complied with. Further, Exhibit 6 is a Field Inspection Form completed by A. Smith for the Mareeba District which includes the comment: “Application complies with the requirements of the Mineral Resources Act 1989”. [9] In my opinion, the evidence given by the Applicant Adams and the exhibits referred to above are 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? [10] As detailed in Exhibit 1, the Applicants are seeking to mine diatomaceous earth. Relevant dictionary definitions for diatomaceous earth are as follows:- “ diatomaceous earth See: diatomite diatomite A light-coloured soft friable siliceous sedimentary rock, consisting chiefly of opaline frustules of the diatom, a unicellular aquatic plant related to the algae. Some deposits are of lake origin, but the largest are marine. Owing to its high surface area, high absorptive capacity, and relative chemical stability, diatomite has a number of uses, esp. as a filter aid and as an extender in paint, rubber, and plastics. The term is generally reserved for deposits of actual or potential commercial value.”1 1 U.S. Bureau of Mines Dictionary of Mining, Mineral, and Related Terms, http://imcg.wr.usgs.gov/dmmrt/dmmrt333.html, date visited 1 May 2001. -- 3 of 10 -- [11] Relevant definitions in the Act are set out in the dictionary in the schedule to the Act. The definition of mineral includes relevantly the following: “ “mineral” means a substance which normally occurs naturally as part of the earth’s crust or is dissolved or suspended in water within or upon the earth’s crust and includes a substance which may be extracted from such a substance, and includes– … (j) silica, including silica sand, if mined for use for its chemical properties; … (k) rock mined in block or slab form for building or monumental purposes; but does not include– … (n) soil, sand, gravel or rock (other than rock mined in block or slab form for building or monumental purposes) to be used or to be supplied for use as such, whether intact or in broken form;” [12] I note the definition of rock contained in U.S. Bureau of Mines, Dictionary of Mining, Mineral, and Related Terms, is in part as follows: “rock a. An aggregate of one or more minerals. eg., granite, shale, marble; or a body of undifferentiated mineral matter, e.g., obsidian, or of solid organic material, e.g., coal. AGI…….. e. Strictly, any naturally formed aggregate or mass of mineral matter, whether or not coherent, constituting an essential and appreciable part of the Earth’s crust. Ordinarily, any consolidated or coherent and relatively hard, naturally formed mass of mineral matter; stone. In instances, a single mineral forms a rock, as calcite, serpentine, kaolin, and a few others but the vast majority of rocks consist of two or more minerals. f. A local term used in New York and Pennsylvania for the more massive beds of bluestone that are not jointed and are, therefore, well-suited for structural purposes. g. In the geological sense, any natural deposit or portion of the Earth’s crust whatever be its hardness or softness, but used by miners to denote sandstone. TIME h. In geology, the material that forms the essential part of the Earth’s solid crust, and includes loose incoherent masses, such as a bed of sand, gravel, clay, or volcanic ash, as well as the very firm, hard and solid masses of granite, sandstone, limestone, etc. Most rocks are aggregates of one or more minerals, but some are composed entirely of glassy matter, or of mixtures of glass and minerals. Hunt i. In the Lake Superior region, crude copper ore as it comes from the mines. The concentrate obtained is called mineral, and contains about 65% metallic copper.”2 [13] In light of the above definitions, I am satisfied that diatomaceous earth as a siliceous based substance is a mineral for the purposes of the Act and not a rock for the purposes of the exclusions to the definition. [14] During the hearing, the Applicant Adams gave the following evidence:- “I’ve known about – we’ve known about the mineralised area since 1970 and in 1970 there was no market for diatomaceous earth. In 1984 we attempted to lease it and do some market research and we couldn’t get anybody to sit in it because it wasn’t really – there wasn’t a lot of money involved. And then recently, as early as last year, we were 2 U.S. Bureau of Mines Dictionary of Mining, Mineral. And Related Terms, http://imcg.wr.usgs.gov/dmmrt/dmmrt994.html, visited 1 May 2001. -- 4 of 10 -- looking on the internet and we discovered that this is an environmentally friendly product that they use to kill 6,000 different varieties of insects in – most successfully done in America. So, we again pegged a lease and we’ve gone through the process and we’re up to this point in time at the moment and we estimate that there’s probably – we did it by standing and mapping with the theodolite. There about 10 million tonnes in that lease alone and in the AP – EPM at the southern side of it. There’s an enormous amount of the resource in there … in 1970 I was involved in mining and my father had a company – a mining company and in those days we were prospecting all through North Queensland … we used to go through and prospect and that’s how we discovered it and we got it assayed – we got a basic assay. We tried to do something with it then because we could see it was a unique product then … I’ve sent the assay reports to the three years that I’ve mentioned, 1970, 1984 and 2001. The latest, 2001, its shows you all the trace elements which are beneficial to farmers and all that sort of business and because it’s environmentally friendly it’s getting to be known in the animal and horticultural industry.” [15] The assay reports referred to by the Applicant Adams form part of Exhibit 13 and are consistent with Mr Adams evidence. [16] In light of the evidence given by the Applicant Adams and the contents of Exhibit 13, 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? [17] The Applicant Adams gave evidence that 80% of the mining lease application area is mineralised and will be progressively mined. The balance area will be used for stocking material, rehabilitation and camp site. [18] The Applicant Adams further provided evidence of the equipment to be used in the mining operations. I also note the contents of the EMOS (Exhibit 2). I also note the evidence and material relating to s. 269(4)(b) above. [19] In light of the evidence given by the Applicant Adams and the exhibits, I am satisfied that there will be an acceptable level of 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? [20] Exhibits 1, 10 and 13 include plans and other details of the proposed mining lease, supported by evidence from the Applicant Adams. [21] I am satisfied that the size and shape of the mining lease application is appropriate. -- 5 of 10 -- Section 269(4)(e) -Is the term sought appropriate? [22] The term applied for for this mining lease is 50 years. However, the Applicant Adams gave evidence that, because of the level of demand for the mineral, the Application area can be fully utilised in 25 years.. [23] In light of the evidence given by the Applicant Adams, I am satisfied that an appropriate term in this instance is 25 years. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [24] The Applicants gave evidence that they have cash reserves of $240,000 as well as three unencumbered farming properties which can be mortgaged for between $600,000 to $700,00. [25] As regards the Applicants technical capabilities the Applicant Adams, gave the following evidence: “I’ve been mining since I left school in ’64 on and off and I’ve worked underground, I’ve worked open cut, I’ve worked pit mining, alluvial, for just about all of ‘em, you know, tin at Wolfram, copper, gold and most of it has been North Queensland. I’ve worked sapphire mines, I’ve been employed as a shift boss, a manager and a mine hand, I’ve been a plant operator and I was using explosives underground when I was 18 years old before the laws came out that weren’t allowed to use explosives underground at that age. I’ve sort of – probably 30 years may be been involved in mining at North Queensland, Mr Deputy President.” [26] The Applicant Adams further gave evidence that in his over 30 years experience in the mining industry he has not been involved in any accidents, nor has he ever received any breach notices or had any cause to receive any adverse attention from the Department of Mines in its various forms. [27] The Applicant Tobler gave evidence in the following terms: “Well, I was a rock driller with – a rock driller with Mount Carbine Roach Brothers for eight years. That’s the only experiences I’ve had as mining … Do you run a successful business? - - Yes, sir. As – well, at the moment it’s quite – going quite all right. And before I was a – I was a concreter for 20 years and I had a turnover of over a million dollars a year. That’s it, sir. At the time you were undertaking mining for the eight years as a rock driller, were you involved in any accidents? - - No, sir. None at all. Did you ever have any adverse comments by a safety inspector from the department? - - No, Mr Deputy President. None whatsoever. And no unsafe practices that you were aware of? - - No, sir. None at all.” -- 6 of 10 -- [28] In light of the evidence given I am satisfied that the Applicants have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease application. Section 269(4)(g) – Has the past performance of the Applicants been satisfactory? [29] With respect to this criterion, I also rely on the evidence given with respect to section 249(4)(f) above. [30] I accordingly find that the Applicants’ 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] The land the subject of this Application is currently subject to EPM 13148 held by Dennis Harold Mainwood. Exhibit 7 is a letter from Mr Mainwood to the Department of Mines and Energy received on 8 December 2000. The letter contains the following: “I will not withhold consent to mine Diatomaceous Earth [D.E.] after certain conditions have been agreed upon.” [32] The Applicant Adams gave evidence that there are no other interested parties in the area. I am satisfied that the consent of the EPM holder has been obtained to the granting of the proposed mining lease for the mining of the mineral Diatomaceous Earth only. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [33] The Applicant Adams’ evidence demonstrates a commitment to work with the landholder and the E.P.A. to ensure sound land use practices are used in the mining and rehabilitation of the land. [34] The Applicant Adams gave evidence that the land where the mining activity is to occur consists of rocky granite ridges and that, following proper rehabilitation, the land will be improved pasture with improved carrying capacities. -- 7 of 10 -- [35] The evidence of the Applicant Adams indicates that the proposed mining lease would conform with sound land use management. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof. [36] As with virtually any mining operation, there will necessarily be environmental impacts. [37] In considering this criterion I have relied upon the evidence given by the Applicant Adams and Exhibits 1, 2, 3, 8, 9, 13 and 14. [38] Additionally, the Applicant Adams described in some detail the nature of the land the subject of this Application and the proposed rehabilitation. I also rely on the evidence given with respect to section 269(4)(I). [39] Issues relating to environmental management of the site are sufficiently detailed in the Exhibits referred to and the evidence of the Applicant Adams. [40] 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? [41] With respect to this criterion, there are no public utilities anywhere on or in close vicinity to the proposed mine. [42] Exhibit 9 includes an agreement between the Herberton Shire Council (previously an objector) and the Applicants. The Agreement is in the following terms: -- 8 of 10 -- “Mining Lease Application 20341 Over Land Described as Lot 4 GU30 Parish of Gunnawarra (Glen Eagle Station) The Parties acknowledge that agreement has been reached on Conditions to be imposed for the proposed Mining Lease as follows: (a) Grade the road for twenty-five hours per annum or pay the equivalent monetary contribution for the maintenance of the road. This is due after twelve (12) months of operations on an annual basis. (b) Two signs are required on Cashmere-Kirrama Road, one on either side 200 metres from the intersection with Glen Eagle Road. Signs are to be W5-22 B Trucks (crossing or entering) with the supplementary slow down sign underneath. (c) The Cashmere-Kirrama Road, Glen Eagle Road intersection will require a heavy gravel floodway with bed log protection on the downstream side. This floodway will allow the table drain to continue parallel with the Cashmere-Kirrama Road. (d) Should the operations expand in excess of ten vehicles movements per day that Council have the ability to reassess its requirements in relation to road transport matters. (e) The haulage over roads in the area is to be curtailed during the wet season and when the roads are affected by rain. It is further agreed that upon the above conditions being made a condition relating to the Mining Lease (granted by the District Mining Registrar) that Council will withdraw its objection to Mining Lease Application 20341 submitted by RA Adams and KA Tobler.” [43] In light of the evidence and the contents of Exhibit 9, I am satisfied that, provided that the conditions set out in the Agreement in Exhibit 9 are included as conditions of the mining lease, the public right and interest will not be prejudiced by the grant of the proposed mining lease. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [44] 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? [45] The Applicants evidence indicates a potentially valuable resource that can be accessed with minimal long term impact on the land. Recommendation: [46] 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 -- 9 of 10 -- Resources and Mines that Mining Lease 20341 be granted over the entire application area, for the purposes of mining and camp sought by the Applicants, for the term of 25 years, provided that the conditions set out in the Agreement between the Herberton Shire Council and the Applicants contained in Exhibit 9 and detailed in paragraph 42 of these reasons are included as conditions of the mining lease, and provided further that the mining lease be granted for the mining of the mineral Diatomaceous Earth (Diatomite) only. -- 10 of 10 --