Aberdare Collieries Pty Ltd, Re [2001] QLRT 16

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Aberdare Collieries Pty Ltd [2001] QLRT 16 PARTIES: In the Matter of Mining Lease 50074 - Applications by Aberdare Collieries Pty Ltd FILE NO/S: LXX 40029/2000; LXX 40028/2000; LXX 40009/2001 PROCEEDING: Applications for inclusion of surface of land in Mining Lease DELIVERED ON: 6 April 2001 DELIVERED AT: Brisbane HEARING DATE: 14 March 2001 PRESIDING MEMBER: Kingham DP ORDER/S: 1. Hearing dispensed with. ([7]) 2. Recommendation made that the areas of surface land identified in the Applications be included in Mining Lease 50074. ([17]) CATCHWORDS: MINING – MINING LEASE – INCLUSION OF SURFACE LAND IN MINING LEASE - RECOMMENDATION – Mineral Resources Act 1989, ss 252(1), 269(4), 270(1), 275 COUNSEL: N/A SOLICITORS: N/A JUDGMENT, RECOMMENDATION and REASONS [1] KINGHAM DP: Aberdare Collieries Pty Ltd applied under s275 of the Mineral Resources Act 1989 (the Act) for the inclusion in mining lease 50074 (the mining lease) of the surface of three parcels of land. The mining lease, known as “Kogan Creek” and located approximately 9 kilometres south of Brigalow, was granted for a term of twenty years commencing on 1 March 2000 for the purpose of mining coal. -- 1 of 5 -- Background [2] The Applicant applied for the mining lease on 26 March 1993. The application and objections to it were heard over a number of days in July 1993 and February, June and August 1994. On 9 February 1995, the Mining Warden recommended that the mining lease be granted over the application area for a term of twenty years, but excluding the surface area protected as “restricted land” under the Mineral Resources Act 1989 (“the Act”). The surface area excluded was two parcels of land of 14.57ha and 3.39ha (“the restricted land”). The restricted land is the subject of two of the applications (LXX40028/2000 and LXX40029/2000). [3] The third application (LXX40009/20001) relates to a 29.71ha parcel of land owned by Mr Vellnagel when the application for the mining lease was made (“the Vellnagel land”). The Warden’s recommendation included the Vellnagel land. After the Warden’s recommendation was made, the Applicant amended the application for the mining lease to exclude the surface of the Vellnagel land due to difficulties in concluding a compensation agreement with Mr Vellnagel. [4] Allied Queensland Coalfields (Kogan Creek) Pty Ltd, a company related to the Applicant, is now the owner of the restricted land and has consented to those two Applications. The same company is the owner of the Vellnagel land. As there is no restricted land on that property, no consent is required. [5] One reason for the delay between the recommendation of the Mining Warden in February 1995 and the grant of the mining lease in March 2000, was negotiations regarding native title issues. Ultimately, the Applicant decided to resurvey the application area to almost totally exclude the area of a creek that ran through the application area. I am informed that the remaining area applied for was not subject to the right to negotiate under the Native Title Act 1994 C’wth. [6] The Applications seek the grants for the purpose of mining coal and purposes associated with the Kogan Creek mine. The applicant proposes to mine the restricted land in years 9 & 10 of the commercial operation of the mine. In relation to the Vellnagel land, the Applicant proposed to mine only the southern portion, with the balance to be used for a coal conveyor and to contain run-off from the ROM coal -- 2 of 5 -- stockpile. The Applicants propose to develop Kogan Creek in conjunction with a power station, which has been deferred for a period of some 3 – 6 years. Request to dispense with a hearing (s270(1)): [7] The applicant requested I dispense with a hearing of the application and deal with the matter on the basis of material lodged with the Mining Registrar and tendered as exhibits before the Tribunal, further affidavit evidence and submissions. Mr Griffin, the Marketing Manager of the Applicant made submissions in support of the request and in relation to the applications for the inclusion of surface area in the mining lease, during a hearing conducted on 14 March 2001. [8] I may dispense with a hearing if satisfied as to matters specified in s270(1). With respect to s270(1)(a), for reasons that follow at paragraphs 10 to 11, I am satisfied that the provisions of part 7 of the Act have been complied or substantially complied with in respect of the applications. With respect to s270(1)(b), I note that there were no objections to this application. S270(1)(c) is not relevant to these applications as there is no reserve land in the area applied for. With respect to s270(1)(d), I have already noted the consents given to the applications relating to the restricted land by the current owner. I am, therefore, satisfied that the requirements of s270(1) have been fulfilled. [9] Mr Griffin made submissions on each of the criteria that I must consider in making my recommendation on these applications. He also tendered relevant documents provided to the Tribunal by the Mining Registrar and supplemented this with an affidavit sworn by him as to the history of the application for the mining lease. I am satisfied that there is sufficient information before me to enable me to properly consider this matter. Accordingly, I order that a hearing of this application be dispensed with. Section 269 (4) criteria: [10] In taking account of and considering the criteria specified in section 269(4), I have relied upon the affidavit of Mr Griffin and the material tendered as exhibits. Section 269(4)(a) - Have the provisions of the Act been complied with? -- 3 of 5 -- [11] The Applicant tendered the Applications (exhibit 1) and a Declaration of Posting and Advertising (exhibit 3) in relation to each application, that certified compliance with the requirements for notifying the application. The Declarations in relation to the restricted land were lodged within the time required by the Act. With respect to the Vellnagel land, the Acting Assistant Mining Registrar allowed a longer period for lodgement of the declaration. [12] The Applicant also tendered Certificates of Application issued by the Mining Registrar in relation to each application (exhibit 1). Pursuant to Section 252 (1) of the Act, the Mining Registrar can only issue a Certificate 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. I note that the underlying tenure for the three areas applied for is freehold and, therefore, the native title provisions of the Act do not apply to these applications. On the basis of the evidence referred to above, I am satisfied that the provisions of the Act with respect to the Applications have been fulfilled. The remaining criteria: [13] The Applicant submitted that I was entitled to rely upon the Mining Warden’s recommendation and findings of fact in the hearings relating to the original application referred to above. I was provided with the Warden’s recommendation in that matter and note that he made a detailed assessment of the evidence presented by both the Applicant and the objectors. After considering that evidence, he was satisfied that, taking into account the criteria in s269(4), the mining lease should be granted in the terms sought, subject to the surface of the restricted land being excluded. That exclusion was apparently based solely on the protection provided by the Act to such land. The Warden otherwise expressed no concern about the suitability of that area for grant. I note that the Warden’s recommendation included the surface of the Vellnagel land and that the Applicant excluded that land in the circumstances described above. [14] Mr Griffin submitted that the only material change to the project as presented to the Mining Warden, is a reduction in the percentage of the Vellnagel land that is to be mined. This is due to further information now available to the Applicant regarding the -- 4 of 5 -- limits of the resource. Further, the Environmental Management Overview Strategy (EMOS) for the project has been amended to reflect the Department’s requirements regarding the rehabilitated landform. I note that the EMOS includes what appear to be appropriate strategies for dealing with all the activities proposed on the areas sought by these Applications. I also note that the Department has confirmed to the Applicant that the EMOS in its current form is acceptable. [15] I accept the Applicant’s submission that I am entitled to rely upon the Warden’s findings of fact in relation to the original application1. I am satisfied, on the basis of those findings and upon the basis of the further material provided that these Applications should be granted. [16] Recommendation: [17] I recommend to the Honourable the Minister for Natural Resources and Mines that the additional surface areas applied for be included in Mining Lease No 50074. 1 S92 Evidence Act 1977 -- 5 of 5 --