BHP Minerals Pty Ltd & Ors, Re [2001] QLRT 15

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Minerals Pty Ltd & Ors [2001] QLRT 15 PARTIES: In the Matter of Mining Lease Nos. 1923 and 1789 – Applications by BHP Minerals Pty Ltd and Others for Additional Surface Areas of Land FILE NO/S: LXX40003/2001 LXX40004/2001 PROCEEDING: Applications for additional surface areas of land DELIVERED ON: 4 April 2001 DELIVERED AT: Brisbane HEARING DATE: 5 March 2001 PRESIDING MEMBER: Koppenol P ORDER/S: 1. Hearing dispensed with. (at [9]) 2. I recommend to the Honourable the Minister for Natural Resources and Mines that: (a) Additional Surface Area No. 5, comprising 163.8ha, applied for by the applicants for the mining of coal and hydrocarbons, be included in Mining Lease No. 1923, with the term to be concurrent with ML 1923 to expire on 31 March 2006. (at [24]) (b) Additional Surface Area No. 3, comprising 47.41ha, applied for by the applicants for the mining of coal and hydrocarbons, be included in Mining Lease No. 1789, with the term to be concurrent with ML 1789 (if renewed) to expire on 30 November 2019. (at [24]) CATCHWORDS: MINING – MINING LEASES – DISPENSING WITH HEARING – APPLICATIONS FOR ADDITIONAL SURFACE AREAS – RECOMMENDATION -- 1 of 9 -- Mineral Resources Act 1989, ss. 238(2), 252(1), 252(9), 252C, 269(4), 270, 275, 392 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 News Corporation Ltd (1993) 11 ACLC 733, followed COUNSEL: N/A SOLICITORS: Ms K. Driver, for the Applicants REASONS FOR JUDGMENT Applications [1] KOPPENOL P: These are 2 applications by BHP Minerals Pty Ltd and Others (the applicants) under s. 275 of the Mineral Resources Act 1989 (MRA) for additional surface areas of land (described in the applications as Additional Surface Areas Nos. 5 and 3) to be included in the mining leases for 2 existing coal mines (Gregory and Crinum Mines, which are situated within ML 1923 and ML 1789, respectively). The additional areas of 163.8ha and 47.41ha, respectively, were sought for the mining of coal and hydrocarbons. The land concerned is situated in the Emerald district. The existing mining operations have been in existence for about 25 years. The applicants comprise a joint venture between BHP Minerals Pty Ltd and BHP Queensland Coal Ltd (64.14%) and 4 other companies (whose interests total 35.86%).1 [2] Details of the additional areas sought are as follows: (a) Tribunal File No. LXX40003/2001: Mining Lease No. 1923 – Application for additional surface area No. 5 (163.8ha), to expire on 31 March 2006 (ASA5). 1 Those other companies are QCT Mining Pty Ltd, QCT Investments Pty Ltd, QCT Management Ltd and Mitsubishi Development Pty Ltd. -- 2 of 9 -- (b) Tribunal File No. LXX40004/2001: Mining Lease No. 1789 – Application for additional surface area No. 3 (47.41ha), to expire on 30 November 2019 (ASA3). [3] It is convenient that the applications be dealt with together because of the similarity of issues raised in each application and because of the physical proximity inter se of the mining leases and areas concerned. [4] Such applications are dealt with in the same manner under the MRA as if they were mining lease applications: s. 275(2). No objections to the applications have been lodged. [5] On 6 February 2001, following submissions by the solicitor for the applicants, I ordered (pursuant to ss. 39 and 40 of the Land and Resources Tribunal Act 1999) that the Tribunal be constituted for these matters by me. Dispensing with hearing [6] Ms Driver, who appeared for the applicants on 5 March 2001, 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. [7] 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). [8] For reasons which will appear, I am satisfied that criterion (a) has been complied with. The business planning manager (Mr Cox) of BHP Coal Pty Ltd, the company which operates and manages the Gregory and Crinum mines on behalf of the applicants, has sworn affidavits which establish that (b) no objections have been lodged, (c) the applications do not relate to land that is the surface of a reserve, and (d) ASA5 does not relate to any land which is subject to s. 238(2), and whilst the ASA3 land is “restricted land” as defined, the owner (the applicants) has given consent to the application. -- 3 of 9 -- [9] In the circumstances, I regard this as an appropriate case to dispense with a hearing under s. 270. I order accordingly. 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. For such purposes, I have also had the benefit of the detailed affidavits of Mr Cox (whose evidence was not disputed) and the comprehensive oral and written submissions of the applicants’ legal representatives. Section 269(4)(a) – Have the provisions of the Mineral Resources Act been complied with? [11] Certificates of application were issued by the mining registrar on 18 September 2000 (ASA 5) and 1 August 2000 (ASA 3). Under s. 252(1) of the MRA, 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 Cox’s evidence as to the applicant’s compliance. The applicants have also lodged with the mining registrar the s. 252(9) declarations of posting and advertising.2 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 (substantial) compliance with that provision, and not with the new s. 252C, is that which is required (and has been satisfied) 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? 2 The declaration for ASA3 was lodged within time but that for ASA5 was in fact lodged 1 day late. However I am satisfied that having regard to the nature of this particular lodgment obligation and the absence of evidence of prejudice by reason of the late lodgment, the provisions of s. 252(9) have been substantially complied with: see s. 392 of the MRA and Re News Corporation Ltd (1993) 11 ACLC 733, 734 (FCA: Hill J). -- 4 of 9 -- [12] The applicants are the holders of existing Mining Leases 1923 and 1789 which comprise the Gregory and Crinum Mines. Mr Cox said that the additional areas sought will be used as part of those mines for (a) the progression of underground mining operations of the Crinum Mine and associated infrastructure (ASA5) and (b) for Crinum Mine’s surface facilities, including environmental dam, mine water, pipelines, buildings, conveyors and coal handling facilities, an overland conveyor and water pipeline (ASA3). Ms Driver also informed me on 5 March 2001 that ASA3 was for the construction of combination infrastructure for the benefit of both Gregory and Crinum Mines.3 ASA5 is estimated to contain 6.54 million tonnes of mineable reserves (namely coal). 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] I accept Mr Cox’s evidence that the additional surface areas are required for surface infrastructure to progress current open cut and underground mining operations at the Gregory and Crinum mines – and thus to fully utilise the land as part of the applicants’ mining operations. I also note that the (former) Department of Mines and Energy has approved a plan of operations in respect of the proposed underground mining activities and infrastructure. 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] I accept Mr Cox’s evidence that the additional surface areas sought are the minimum possible to extract the mineable reserves and to allow for the construction, use and maintenance of the required infrastructure for the mines. Having considered the technical services officer’s map (Ex. F) which was exhibited to Mr Cox’s first affidavit, I am satisfied that the size and shape sought have been determined having regard to the extent of coal reserves and required infrastructure, as well as the existing mining lease and freehold land boundaries, abutting railway, public road and road reserve. I am satisfied that this criterion has been established. 3 Transcript 5 March 2001, p. 6 LL. 51-53. -- 5 of 9 -- Section 269(4)(e) – Is the term sought appropriate? [15] The term sought for ASA5 is intended to match the term of the existing mining lease (ML 1923), which expires on 31 March 2006. The term of ASA3 is intended to match that of ML1789. That mining lease expired on 30 November 1998 and the applicants have applied for a further term of 21 years. Thus the term sought for ASA5 (as well as for ML 1789, if renewed) would presumably expire on 30 November 2019. Having regard to the uses for which the additional land is sought, and to the fact that a concurrent term is sought, 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 Cox’s evidence that the applicants have provided and will continue to provide the necessary finance for the continued operation of Gregory and Crinum mines. I also accept Mr Cox’s evidence that the Gregory and Crinum mines have available the technical resources of staff on site and the business development and environmental services departments of BHP Coal Pty Ltd, including engineers, geologists, surveyors and environmental scientists, to carry on the mining operations of Gregory and Crinum mines. The applicants are experienced mining operators in this region. I am satisfied that this criterion has been established. Section 269(4)(g) – Has the past performance of the applicant been satisfactory? [17] Mr Cox has sworn that (a) the applicants have at all times operated their mines satisfactorily in respect of every aspect of the mining operations conducted on ML 1923 and ML 1789, (b) have never had a security deposit withheld or the like or received a show cause notice and (c) have never had a mining lease or mining claim forfeited due to non-payment of rent or for any other reason. I accept that evidence. There is no material before me which suggests that the applicants’ 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? -- 6 of 9 -- [18] There is currently an application for an exploration permit over the area the subject of ASA5. That application was recently made by the applicants themselves. There is no evidence that there are any other relevant tenement holders (or applicants therefor) over the subject land. The applicant is not aware of any. No relevant disadvantage should therefore result. Section 269(4)(i) – Do the operations to be carried on under the authority of the additional surface area of the mining lease conform with sound land use management? [19] The Gregory and Crinum mines are existing and operating coal mines. The additional surface areas sought are to be used as part of those mines for the extraction of coal and for associated infrastructure. Operations are to be conducted in accordance with the environmental management overview strategy (EMOS),4 which prescribes the various mechanisms for ensuring that operations are conducted in conformity with sound land use management. The EMOS has been accepted by the (former) Department of Mines and Energy. 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 EMOS reveals that the mining and related activities will have a number of significant impacts upon the environment in the application area. These include impacts on land resources, waste management, water resources, noise, air quality, conservation, heritage and cultural values. 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, erosion control, waste removal and minimisation, water management and recycling, noise minimisation, dust control, disturbance minimisation to flora and fauna and environmental management and monitoring. The applicants have undertaken to adopt good management practices and to comply with all statutory requirements as well as the various commitments and other measures outlined in the EMOS. These should reduce as much as possible the environmental impact caused by the 4 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 these applications. -- 7 of 9 -- proposed operations and by the disturbance to the land which will occur during the life of the mine. 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 applications. Section 269(4)(k) – Will the public right and interest be prejudiced? [21] I accept that the proposed operations will not affect the use by the public of any public road or highway. The land concerned is freehold and is owned by a company, the shareholders of which are the Coppabella Joint Venturers. The mining operation will not adversely affect public infrastructure or existing use by the public of the site or surrounds. The road does not form part of a catchment area for a town or city water supply. Mr Wood swears that within the application area sought, there are no sites of recreational, scientific, cultural, historical, religious or scenic significance nor any Aboriginal sites of significance. The EMOS states (Commitment 18, p. 38) that should future activities associated with mining recover anything which may be interpreted as Aboriginal or historic in origin, this information will be immediately passed on to the Cultural Heritage Branch, Environmental Protection Agency and the Traditional Owners for further discussion and impact mitigation. All mine contractors will also receive adequate training with respect to this issue to ensure that the applicants meet their legislative responsibilities. Mr Wood also said that the applicants are not aware of any public right or interest that would be prejudiced should the applications be granted. I am satisfied that no factors prejudicial to the public right and interest have otherwise been identified. Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [22] Having regard to the matters previously discussed and to the material filed in respect of theis 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? -- 8 of 9 -- [23] Mr Wood says (and I accept) that at present, the application area is used for grazing cattle on native pasture grasses. The land is not suitable for cultivation or improved pastures. [Insert 3)] I am satisfied that this criterion has been established. Recommendation [24] For the foregoing reasons, I recommend to the Honourable the Minister for Natural Resources and Mines that Application for Mining Lease No. 70236, applied for by the applicants for the mining of coal and associated purposes, be granted over the whole of the application area (581.8 ha) for the term of 21 years, -- 9 of 9 --