BHP Mitsui Coal Pty Ltd, Re [2000] QMW 100

IN THE WARDEN’S COURT OF QUEENSLAND HELD AT BRISBANE IN THE MATTER OF: APPLICATION UNDER PART 7 OF THE MINERAL RESOURCES ACT 1989 FOR ADDITIONAL SURFACE AREA FOR MINING LEASE NUMBER 4750 IN THE EMERALD DISTRICT BEFORE: MR F W WINDRIDGE MINING WARDEN APPLICANT: BHP MITSUI COAL PTY LTD REPORT: The applicant (hereinafter referred to as the miner or applicant miner) seeks additional surface area for mining lease 4750 under the provisions section 275 of part 7 of the Mineral Resources Act 1989 (hereinafter referred to as the MRA or the Act) for the purpose of mining for coal and gaseous hydrocarbons. Certain infrastructure required for the mining operation will also be constructed on the surface area. The application is for surface area of 692.012 hectares and is situated on LOT 1 on WHS 16, County of WODEHOUSE, Parish of KEMMIS. Power to grant such a lease is vested in the Governor-in-Council pursuant to section 234 of the Act after recommendation by the Minister. Except for the reservation in section 8(3), all minerals are the property of the Crown. The grant of a lease does not create any estate or interest in the land (s.10), although there is the power to determine title to land [2000] QMW 100 -- 1 of 8 -- Warden’s Court of Queensland 15 August 2000 ML4750ASA.EME 2 (s.363(5)). The landowner has no right of veto. The use of the land for the purposes nominated is a permitted use under s.319 of the MRA. Any mining tenure is not subject to the provisions of the Integrated Planning Act, being exempt from the provisions of the Local Government Planning and Environment Act 1990 by virtue of s.319 (Part 8) of the MRA. The application was lodged at the Mining Registrar’s Office at EMERALD on 5 APRIL 2000. A certificate of application was issued on 15 JUNE 2000 (s.252 (1)) setting the last date for receipt of objections as 12 JULY 2000 (s.252(2)). No objections were lodged pursuant to section 260(1) of the Act. The following matters have been taken into account and considered in making my recommendations. (s.269(4). (Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 p.481). (a) Have the provisions of the Act been complied with? The material indicates that the applicant is an eligible person as defined in section 5 of the act and is entitled to make the application under s.232 of the act. The application area is not located on or forming part of any reserve as defined in s.5. I find that the application is therefore not in respect of land over which, pursuant to s.238(1) of the MRA, a mining lease shall not be granted without the consent of another person or persons. There is no relevant permanent building on the land as defined in s.5 requiring the consent of any person. There is a relevant feature namely the Hutwell Bore. However, consent in relation to this feature has been given (s.238(2)). At the time of marking out and lodging the application, the applicant was the holder of MINING LEASE 4750(s.232(1)). A declaration of posting was lodged on 17 JULY 2000 (s.252(9)), and service of documents was in accordance with s.399. -- 2 of 8 -- Warden’s Court of Queensland 15 August 2000 ML4750ASA.EME 3 I am satisfied, on the material, including the uncontested information in the application form and the declaration of posting and advertising that all the provisions of the act (other than the provisions requiring the hearing) have been complied with or substantially complied with. (s.392). I find that I am satisfied that, (a) the provisions of the act have been complied with, (b) there is no valid objection, and (c) the consent of any trustee or other person is not required. I therefore dispense with the hearing and proceed under the provisions of s.270(1) of the act. (b) Is the land mineralised or is the other purpose for which the lease is sought appropriate? I am satisfied that the resources sought are minerals (s.5), and that the proposed infrastructure is necessary to assist in the winning of those minerals. (s.234 (1)). I accept the applicant’s advice and I am satisfied on the information given that the purpose for which the lease is sought is appropriate. The application area is within the South Walker Creek mining lease. The surface area to be taken is part of the South Walker Creek Mine. The economic viability of the project is a matter for the applicant’s commercial assessment, but I am satisfied that there is sufficient cause to warrant the grant of additional surface area for inclusion in ML 4570. (c) Will there be an acceptable level of development and utilisation of the resources within the area applied for? From documentation lodged with the application, I am satisfied the applicant has sufficient resources to progress development to an acceptable level. The applicant owns South Walker Creek Mine and the Riverside Mine in Central Queensland. -- 3 of 8 -- Warden’s Court of Queensland 15 August 2000 ML4750ASA.EME 4 (d) Is the area sought an appropriate size and shape? There is nothing in the information supplied by the applicant to suggest that the surface area of the land over which the additional surface area is sought is not an appropriate size and shape. (e) Is the term sought appropriate? The surface area is to be incorporated into ML 4750 which will expire on 31 JULY 2020. I am satisfied that the term sought is appropriate and will allow for mining and rehabilitation to be completed. The applicant has the option of renewal under s.286 or surrender at an earlier date under s.309. (f) Has the applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? From the information supplied, I am satisfied the applicant has the necessary financial and technical capabilities or access to those resources to carry out the mining operation. The applicant also owns and operates the Riverside Mine in Central Queensland. The applicant can rely on its own resources for injections of capital. The applicant has mined COAL for a number of years and in my opinion has the experience necessary to complete the mining operation. [Carr –v- Simnovec (1980) 26 SASR 263 at 268, and Pacminex – v- Aust. Nephrite Jade Mines (1974) 7 SASR 401 at 415]. (g) Has the past performance of the applicant been satisfactory? There is no material before me to suggest that the past performance of the applicant has been unsatisfactory. The local Field Officer and Environmental Officer will be available to monitor performance and rehabilitation and report any breach of conditions. The Inspectorate should monitor the methods adopted for mining, ensuring that industry -- 4 of 8 -- Warden’s Court of Queensland 15 August 2000 ML4750ASA.EME 5 standards are maintained and that all machinery is operated in a safe and competent manner by licensed persons. (h) Is there any disadvantage to the holder of or applicant for exploration permits or mineral development licences? The applicant was the holder of mining lease 4750 at the time of marking out. It does not appear that the holder of or applicant for any other exploration permit or mineral development licence has been affected. (i) Will the operations to be carried on under the proposed lease conform with sound land use management? The land appears to be used for low intensity grazing under favourable conditions, and it seems the proposed mining operation will cause significant disturbance to stock or stock watering or management facilities. Any land not owned by the applicants will be subject to compensation agreements. Information has been supplied as to the Applicant’s site management proposals. The evidence leaves me with no reason to believe that the proposed mining operations do not conform with sound land use management. (j) Will there be adverse environmental effects caused by the proposed operation, and if so, the extent thereof? An Environmental Management Overview Strategy (EMOS) has been lodged with the Registrar and accepted under delegation, subject to any recommendation of this Court and any further requirement of the Minister. Matters raised in the preliminary report have been dealt with satisfactorily and the EMOS for the Mulgrave Pit has been referred to the Honourable the Minister for approval. -- 5 of 8 -- Warden’s Court of Queensland 15 August 2000 ML4750ASA.EME 6 The proposed mining activity is in an isolated area at least 2 kilometres away from the nearest human habitation. Chemicals will not be used in the mining process. Due to low rainfall and the method of mining, erosion will not be a problem provided the usual control measures are put in place. There are no other environmental factors of significance, which may be adversely affected by the operation, that have not been addressed in the EMOS. By Section 35 of the Mineral Resources Regulations 1990, the applicant is required to maintain the lease and access free of parthenium weed and any other weed declared under the Rural Lands Protection Act 1985. The applicant has adopted a week control program in the EMOS for the Mulgrave Pit. (k) Will the public right and interest be prejudiced? No factors prejudicial to the public right and interest have been identified. There are no public utilities on or across the application area. Sites of historical interest or aboriginal significance within the area are allowed for in the EMOS. If any such sites are identified, the EMOS can be amended to put forward specific site protection or site avoidance strategies. (l) Has any good reason been shown for a refusal to grant the mining lease? The economic viability of this project is a commercial decision of the applicant. When all other aspects of the application and the matters referred to in s.269 are taken into account, I am satisfied that the objects of s.2(a), (b), (c), (d), (e) and (g) will be attained this surface area application is granted. In my view, no good reason has been shown for a refusal to grant the additional surface area application (Carr –v- Simnovec, Pacminex –v- Aust Nephrite Jade Mines supra). -- 6 of 8 -- Warden’s Court of Queensland 15 August 2000 ML4750ASA.EME 7 (m) Is the proposed mining lease operation an appropriate land use, taking into consideration the current and prospective uses of the land? The material indicates that the land is currently used for grazing purposes and appears, on the evidence, to be suitable for no other use. In my view, there appears to be risk of significant conflict between the current land use, or any prospective land use and the proposed mining operation. The land appears to be Class V,VI and VII, and post mining will return to Class VI and VIII. The proposed mining operation appears, on the evidence, an appropriate land use, taking into account the current and prospective uses of the land. A compensation agreement or determination of the Court will compensate the landowner for any conflict or loss over land use for any land that is not under the ownership or control of the applicant (s.281). GENERAL COMMENTS This recommendation is based on an assessment of the information supplied. Should there be any dispute over damage or loss, or should the miner depart from his plan of operations or EMOS and cause loss or damage or interruption to the management of the property not envisaged or not foreseen in the terms of any compensation agreement, the parties are at liberty to apply to the Court for a determination or award of damages, and if necessary, injunctive relief under the powers contained in s.363(6). -- 7 of 8 -- Warden’s Court of Queensland 15 August 2000 ML4750ASA.EME 8 RECOMMENDATION: Upon consideration of all the matters set forth in s.269(4) of the Mineral Resources Act 1989, I recommend to the Honourable the Minister that the application for additional surface area for mining lease 4750 be granted for the purpose of mining for COAL and GASEOUS HYDROCARBONS and for the establishment of INFRASTRUCTURE, subject to compensation being settled between the parties or determined by this Court. Dated at BRISBANE this 15 th day of August 2000. F.W. WINDRIDGE MINING WARDEN  2000 -- 8 of 8 --