Anglo Coal (Callide) Pty Ltd, Re [2001] QLRT 21

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: In the matter of Anglo Coal (Callide) Pty Ltd [2001] QLRT 21 PARTIES: In the Matter of Mining Lease 80093 and Mining Lease 80092 – Applications by Anglo Coal (Callide) Pty Ltd for Mining Leases FILE NO/S: LXX 40085/2000 LXX 40088/2000 PROCEEDING: Applications for Mining Leases DELIVERED ON: 20 April 2001 DELIVERED AT: Brisbane HEARING DATE: 30 January, 5 February and 6 March 2001 PRESIDING MEMBER: Kingham DP ORDER/S: 1. Hearing dispensed with. (at [6]) 2. Recommendation made that the Mining Leases be granted subject to the following recommendation: (at [29]) 3. That the term of these leases expire at the same time as ML 6993. (at[17]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION – SUBSTANTIAL COMPLIANCE Mineral Resources Act 1989, ss. 269(4), 270(1), 238, 392 COUNSEL: N/A SOLICITORS: Swanwick Murray & Roche JUDGMENT, RECOMMENDATION and REASONS [1] KINGHAM DP: Anglo Coal (Callide) Pty Ltd (“the Applicant”) applied under s. 245 of the Mineral Resources Act 1989 (the Act) for 2 mining leases. Application for Mining Lease 80092 relates to a 66.55ha parcel of land approximately 15 kilometres north east of Biloela. That lease is sought for the purposes of a treatment plant and mill site; to stockpile ore and overburden and for a sedimentation dam. Application for -- 1 of 7 -- Mining Lease 80093 relates to a 1.3334 ha parcel of land, approximately 12 kilometres north east of Biloela, for the purpose of a tailings/settling dam. Both leases are proposed to form part of the Callide Mine Project. These recommendations and reasons address both applications. Request to dispense with a hearing (s. 270(1)): [2] The Applicant requested I dispense with a hearing of the applications and deal with them on the basis of affidavits of Raymond Bruce Patrick, the Technical Services Manager of the Applicant, filed on 25 January 2001 (ML 80093) and 21 February 2001 (ML 80092). Mr Beaumont, a solicitor with Swanwick Murray & Roche made submissions in support of the request and in relation to the applications for the mining leases during directions hearings conducted on 30 January , 5 February and 6 March 2001. [3] I may dispense with a hearing if satisfied as to matters specified in s. 270(1). With respect to s. 270(1)(a), for reasons that follow at paragraphs 4 to 6 and 8 to 12, I am satisfied that the provisions of part 7 of the Act have been complied with or substantially complied with in respect of the applications. With respect to s. 270(1)(b), I note that there were no objections to these applications. Section 270(1)(c) and (d) are not relevant to application for ML 80093 as there is neither reserve nor restricted land in the area applied for. [4] In relation to application for ML 80092, there is no restricted land but there is a gazetted road and road vested in Queensland Rail. Both of these are “reserve land” within the meaning of the Act. The Applicant has obtained the consent of Queensland Rail to the application and has compensation agreements relating to all the reserve land. The compensation agreement with Queensland Rail (Exhibit D to the Affidavit of Mr Patrick) contains its consent to the application. The Applicant did not produce express consent from the Department of Natural Resources (as it then was) in relation to the gazetted road. However, it is clear from the terms of the compensation agreement (Exhibit G to the Affidavit of Mr Patrick) that the Department was aware of and was not opposed to the application. I further note that neither compensation agreement was lodged with the Mining Registrar before 13 December 2000, the last day for objections, as is required by s. 238. -- 2 of 7 -- [5] I am satisfied that there is no prejudice to any party arising from the Applicant’s failure to strictly meet the requirements of s. 238. I consider it to be appropriate in these circumstances to accept the lodgment with the Mining Registrar of the compensation agreements with Queensland Rail and the Department of Natural Resources as substantial compliance with the requirements of s. 2381. [6] I am, therefore, satisfied that the requirements of s. 270(1) have been complied with or substantially complied with. The affidavits of Mr Patrick address each of the criteria that I must consider in making my recommendation on these applications, and exhibit relevant documents. Further exhibits tendered by Mr Beaumont during the directions hearings supplemented the affidavits. I am satisfied that there is sufficient information before me to enable me to properly consider these applications. Accordingly, I order that a hearing of these applications be dispensed with. Section 269 (4) criteria: [7] In taking account of and considering the criteria specified in s. 269(4), I have relied upon the affidavits of Mr Patrick and the further exhibits tendered by the Applicant. 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? [8] The Affidavits exhibit Declarations of Posting and Advertising that certify compliance with the requirements for notifying the applications. [9] I note that the underlying land tenure for ML 80093 is freehold land owned in fee simple by Raymond Douglas Cridland and that he has entered into a compensation agreement with the Applicant. With respect to ML 80092, Mr Patrick exhibited a letter (Exhibit I to the Affidavit of Mr Patrick) from the Department of Mines and Energy (as it then was) confirming that the underlying land tenures were either “exclusive possession” or “previously exclusive possession” tenures. Accordingly, the native title provisions of the Act are not applicable to either application. 1 s. 392 Mineral Resources Act 1989 -- 3 of 7 -- [10] With respect to ML 80093, I note that the land is encumbered by easements in favour of Powerlink Queensland relating to the Calvale – Stanwell Transmission Line. Powerlink Queensland consented to the Applicant having access over the easements on conditions agreed to by the Applicant (Exhibit D to the Affidavit of Mr Patrick). [11] The Mining Registrar issued Certificates of Application on 27 October 2000 (ML 80093) and 1 November 2000 (ML 80092). Pursuant to s. 252(1) of the Act, the Mining Registrar can only do so 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. Her Certificates are evidence, therefore, of compliance with those requirements of the Act. [12] I have already dealt with the reserve land in relation to the Application for ML 80092. I am satisfied that the requirements of the Act have been complied with or substantially complied with. Section 269(4)(b) - Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [13] The purposes for which the leases are sought do not include mining. Mineralisation of the area is, therefore, not relevant. The Applicant proposes to use ML 80093 for a sedimentation dam to collect run off water from the adjoining Callide mine. The Applicant proposes to use ML 80092 for a coal handling facility, stockpile area and water storage dam. The coal handling facility and stockpile area are to be constructed at the rail loop. [14] The Applicant proposed both the water storage dam (ML 80092) and the sedimentation dam (ML 80093) in a draft Environmental Management Program lodged with the Environmental Protection Agency (EPA) to improve compliance with the Callide mine’s environment conditions. The EPA has indicated by letter (Exhibit H to the Affidavit of Mr Patrick for ML 80092) that these two facilities are important to the successful integration of the water management system at the Callide mine. I consider the purposes for which these leases are sought are appropriate uses for mining leases. 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? [15] Given the purposes for which the mining leases are sought, this criteria is not relevant. -- 4 of 7 -- 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 size and shape of the areas applied for have been determined by a number of factors: the requirements for effective operation of the dams; the location of the adjoining operations; the topography of the land and the location of the natural waterway and the rail loop. There is no evidence that the size and shape of the areas are not appropriate. Section 269(4)(e) - Is the term sought appropriate? [17] The Applications nominated a term of 50 years. During submissions, Mr Beaumont indicated that the term should be linked to the term of other leases in the Callide mine project. Mr Beaumont informed me that the latest expiry date is sometime in 2021 for ML 6993. I recommend that the term of these leases expire at the same time as ML 6993. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [18] The Applicant is a company in the Anglo American PLC group, one of the world’s largest mining and natural resource groups with operations in Southern Africa, Europe, South and North America and Australia. The Applicant employs 287 full time staff and produces in excess of 6 million tonnes of coal annually. These applications relate to infrastructure for the Callide mine. The Applicant has already demonstrated the capacity to operate that mine. I am satisfied that the Applicant has the necessary financial and technical capabilities to carry on the operations on these proposed mining leases. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [19] Statements made by Mr Patrick in his affidavits were contradicted by information from the EPA exhibited to one of his affidavits. Mr Patrick stated that he was not aware of any unsatisfactory past performance on the part of the Applicant. It is clear, however, from the letter from the EPA that there has been unsatisfactory performance of environment conditions, in particular in relation to water management. [20] I view this discrepancy very seriously. In cases where there is no objection, the only source of information for the Tribunal is the Applicant. It is incumbent upon the -- 5 of 7 -- Applicant to provide complete and accurate information. The letter from the EPA does indicate that it considers the facilities proposed by the Applicant are appropriate to improve compliance with environment conditions. I also note that the environmental authorities that will be issued for these leases, if granted, will be “transitional authorities” under the Environmental Protection Act 1994. Transitional authorities are subject to review by the EPA during the 5-year transitional period following the commencement of the new mining provisions of that Act. I also note that the EPA will have ongoing supervision of compliance with environment conditions under that Act and pursuant to the Environmental Management Program. [21] Whilst I am not satisfied that the past performance of the Applicant has been satisfactory, I am satisfied that these applications are made to facilitate improved performance. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permit or mineral development licences or existing applicants for exploration permits or mineral development licences? [22] There are no other holders of or applicants for exploration permits or mineral development licences affected by these applications. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [23] I am satisfied that the proposed operations seek to address deficiencies in the way the Callide mine is operated and conform with sound land use management. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof. [24] I am satisfied that the conditions imposed by the Environmental Management Program will be appropriate for dealing with any adverse environmental impacts from these operations. I am also satisfied that these facilities will improve the Callide mine’s environmental performance. Section 269(4)(k) – Will the public right and interest be prejudiced? [25] There was no evidence before me that indicated that the public right and interest would be prejudiced. It is significant that there were no objections to the application. Further, -- 6 of 7 -- consents have been obtained from or agreements reached with the easement holder (ML 80093) and the owners of road and rail infrastructure (ML 80092). Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [26] Whilst I have expressed my concern about the Applicant’s evidence of past performance, I do not consider that these applications should be refused for that reason. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [27] The Applicant has entered into compensation agreements with all the landholders. For the reasons outlined above, I am satisfied that the proposed operations are an appropriate land use. Recommendation: [28] Subject to my recommendation at paragraph 17 with respect to the term of the leases, I recommend to the Honourable the Minister for Natural Resources and Mines that the Mining Leases be granted over the entire application areas, for the purposes sought by the Applicant. -- 7 of 7 --