BHP Minerals Pty Ltd & Ors, Re [2001] QLRT 13

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Minerals Pty Ltd & Ors [2001] QLRT 13 PARTIES: In the Matter of Mining Lease No. 1923 – Applications by BHP Minerals Pty Ltd and Others for Additional Surface Areas of Land FILE NO/S: LXX40068/2000 LXX40069/2000 PROCEEDING: Applications for additional surface areas of land DELIVERED ON: 20 March 2001 DELIVERED AT: Brisbane HEARING DATE: 2 February 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 the additional surface areas of land applied for (namely (a) Additional Surface Area No. 4, comprising 531.5ha and (b) Additional Surface Area No. 6, comprising 418ha)) by the applicants for the mining of coal and hydrocarbons be included in Mining Lease 1923, with the terms to be concurrent with ML 1923 to expire on 31 March 2006. (at [24]) CATCHWORDS: MINING – MINING LEASE – DISPENSING WITH HEARING – ADDITIONAL SURFACE AREAS – RECOMMENDATION 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 ACI Operations Pty Ltd (Applicant and Quandamooka Land Council Aboriginal -- 1 of 8 -- Corporation and Others (Objectors) [No 2] [2000] QLRT 14, referred to 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 Applicant REASONS FOR JUDGMENT [1] KOPPENOL P: These are 2 applications by BHP Minerals Pty Ltd and Others under s. 275 of the Mineral Resources Act 1989 (MRA) for additional surface areas of land (described in the applications as Additional Surface Areas (ASA) Nos. 4 and 6) to be included in a mining lease for 2 existing coal mines (Gregory and Crinum Mines, which are situated within ML 1923 and ML 1789). The additional areas of 531.5ha and 418ha, 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 applicant comprises 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. LXX400069/2000: Mining Lease No. 1923 – Application for additional surface area No. 4 (531.5ha), to expire on 31 March 2006. (b) Tribunal File No. LXX40068/2000: Mining Lease No. 1923 – Application for additional surface area No. 6 (418ha), to expire on 31 March 2006. [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 areas concerned. 1 Those other companies are QCT Mining Pty Ltd, QCT Investment Pty Ltd, QCT Management Ltd and Mitsubishi Development Pty Ltd. -- 2 of 8 -- [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 12 December 2000, following submissions by the solicitor for the applicant, 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 applicant on 2 February 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 mine manager (Mr Hansen) of BHP Coal Pty Ltd, the company which operates and manages the Gregory and Crinum mines on behalf of the applicant, has sworn an affidavit which establishes that (b) no objections have been lodged, (c) the application does not relate to land that is the surface of a reserve, and (d) nor does it relate to any land which is subject to s. 238(2). [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 affidavit of Mr Hansen (whose evidence was not -- 3 of 8 -- disputed) and the oral and written submissions of the applicant’s legal representatives (Ms Driver and Ms Temple-Smith).2 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 15 September 2000 (ASA 4) and 18 September 2000 (ASA 6). 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 Hansen’s evidence as to the applicant’s compliance. The Applicant has also lodged with the mining registrar the s. 252(9) declarations of posting and advertising.3 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 in the present case. Section 269(4)(a) applies not only to the applicant’s compliance but also to compliance by all relevant parties with all relevant provisions of the MRA;4 however there is no suggestion in this matter that any other provisions of the MRA have not been complied with. 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 applicant is the holder of existing Mining Leases 1923 and 1789 which comprise the Gregory and Crinum Mines. Mr Hansen said (and I accept) that the additional areas sought will be used as part of those mines for underground 2 Ms Temple-Smith appeared for the applicant on 13 March 2001 and subsequently made further written submissions. 3 The declarations were in fact filed 3 days (ASA4) and 1 day (ASA6) 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 Re ACI Operations Pty Ltd (Applicant) and Quandamooka Lands Council Aboriginal Corporation and Others (Objectors) [No 2] [2000] QLRT 14, at [17]. -- 4 of 8 -- and open cut extraction and associated infrastructure, including environmental dams, water pipelines, buildings, conveyors, coal handling facilities and dewatering facilities. The additional areas are estimated to contain 33.9 million tonnes of mineable reserves (namely coal) which I was told at the hearing,5 constituted at least 10 years supply of mineable resources. 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 Hansen’s evidence that the additional surface land will be used 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 Applicant’s mining operations. I also note that the (former) Department of Mines and Energy has approved a plan of operations and an environmental management overview strategy (EMOS) in respect of that mine. 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 Hansen’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 2 mines. Having considered the project geologist’s map (Ex. F) which was exhibited to Mr Hansen’s 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 boundaries. I am satisfied that this criterion has been established. Section 269(4)(e) – Is the term sought appropriate? [15] The term sought for the additional surface areas is intended to match the term of the existing mining lease (ML 1923), which expires on 31 March 2006. 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. 5 Transcript 2 February 2001, p. 21 L 16. -- 5 of 8 -- 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 Hansen’s evidence that the applicant has provided and will continue to provide the necessary finance for the continued operation of Gregory and Crinum mines. I also accept Mr Hansen’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 Hansen has sworn that (a) the applicant has at all times operated their mines satisfactorily in respect of every aspect of the mining operations conducted on ML 1923 and ML 1789, (b) has never had a security deposit withheld or the like or received a show cause notice and (c) has 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 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] There is no evidence that there are any such 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 -- 6 of 8 -- conducted in conformity with the EMOS,6 which prescribes the various mechanisms for ensuring that operations are conducted in conformity with sound land use management. 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 – including upon, as I apprehend it, the proposed additional surface areas. These include impacts on land resources, water resources, industrial waste, noise and vibration, air quality and weeds. However a number of control measures and other strategies were identified in the EMOS to deal with or to lessen the adverse impacts which would otherwise have occurred. These include rehabilitation, water control, recycling, noise minimisation, dust control, weed impact minimisation, subsidence management and environmental management. The applicant has undertaken 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 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, nor the right of way of any person. The land concerned is freehold and is owned by the applicant. Mr Hansen swears that within the additional surface areas sought, there are no sites of recreational, scientific, cultural, historical, religious or scenic significance, and that to the best of his knowledge, there are no Aboriginal sites within or surrounding the application areas. The EMOS states (p. 30) that when surveys were conducted for the EIS, 6 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 8 -- no area of cultural note or Aboriginal artefacts were located, and that should any areas of heritage or cultural value become apparent, they will be referred to suitably qualified personnel for assessment. Mr Hansen 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 this application, in my view no good reason has been shown for a refusal to grant the additional surface areas 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? [23] At present, the land the subject of the applications for additional surface area is within existing Mining Lease 1923. The proposed usages of the additional surface areas sought are consistent with and complementary of the existing mining operations carried out on ML 1923 and on the Applicants’ adjoining mining lease, ML 1789. The applicant considers the proposed continued land use for mining operations and associated infrastructure to be the most beneficial use of the land – given the quality and quantity of mineable coal reserves situated within the application areas, the employment opportunities that are generated by operation of the mines and the royalty payments made to the State. There is no contrary evidence. 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 the additional surface areas of land applied for (namely (a) Additional Surface Area No. 4, comprising 531.5ha and (b) Additional Surface Area No. 6, comprising 418ha)) by the applicants for the mining of coal and hydrocarbons be included in Mining Lease 1923, with the terms to be concurrent with ML 1923 to expire on 31 March 2006. -- 8 of 8 --