Curin & Dowd, Re [2000] QMW 98

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 A MINING LEASE (NUMBER 80085) IN THE ROCKHAMPTON DISTRICT BEFORE: MR F W WINDRIDGE MINING WARDEN APPLICANT: MOONBOONBURY SANDSTONE PTY LTD REPORT: The applicant (hereinafter referred to as the miner or applicant miner) seeks a mining lease under the provisions of section 234 of part 7 of the Mineral Resources Act 1989 (hereinafter referred to as the MRA or the Act) for the purpose of mining for SLATE and SANDSTONE as BUILDING STONE. The application is for surface area of 56.2668 hectares after abandonment of part of the initial application, and is situated on LOT 34 and 35 on NT268, County of NEWCASTLE, Parish of MOONBOONBURY. Access is off public roads. The lease, if granted, is to be known as MOONBOONBURY. 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 (s.363(5)). The landowner has no right of veto. The use of the land for the purposes [2000] QMW 99 -- 1 of 8 -- Warden’s Court of Queensland 4 July 2000 80085MLA.ROC 2 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 ROCKHAMPTON on 1 DECEMBER 1999. A certificate of application was issued on 31 MARCH 2000 setting the 28th of APRIL 2000 as the last date for receipt of objections (s.252 (2)). One objection was lodged pursuant to section 260(1) of the Act. After discussions that resulted in a changed route for haul out, that objection was withdrawn. 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 or relevant feature on the land as defined in s.5 requiring the consent of any person (s.238(2)). At the time of marking out and lodging the application, the applicant at the time (Kenneth Joseph ARKINSTALL) was the holder of EXPLORATION PERMIT 12708 (s.232 (1)). The assignment from Arkinstall to Moonboonbury Sandstone Pty Ltd was approved on 27 June 2000. A declaration of posting was lodged on 12 MAY 2000 (s.252 (9)), and service of documents was in accordance with s.399. -- 2 of 8 -- Warden’s Court of Queensland 4 July 2000 80085MLA.ROC 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)). A small workshop is to be erected on site. 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. There is visual evidence of large outcrops in the application area. Blocks of stone are to be removed from the lease and cut at a site yet to be decided in Mundubbera or Bundaberg. At this stage there is a proven reserve of 312,500 cubic metres, with a further possible reserve of 490,000 cubic metres. While the economic viability of the project is a matter for the applicant’s commercial assessment, I am satisfied that there is sufficient evidence of mineralisation to warrant the grant of a lease. (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. Some machinery is available for this project. The applicant will build other equipment necessary. -- 3 of 8 -- Warden’s Court of Queensland 4 July 2000 80085MLA.ROC 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 mining lease is sought is not an appropriate size and shape. There is no conflict with the boundary of any other tenement, and therefore the cost and delay of a survey would appear to be not warranted. (e) Is the term sought appropriate? The term of lease applied for is 15 years. 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. Removal of slate and sandstone is basically an extractive industry utilising shallow open cuts and does not require extensive plant, processing equipment, or large injections of capital. The applicant has been involved in the building industry where the product is to be utilised. Persons with suitable experience will conduct mining. In my opinion the applicant 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 4 July 2000 80085MLA.ROC 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 at the time of marking out was the holder of the relevant pre-requisite title under s.232 of the MRA. 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 no significant disturbance to stock or stock watering or management facilities. The general nature of the land is described as “sandstone ridges,” stony ground, and undulating country. There is no arable top soil. Rainfall is low. Stock fodder is generally of poor quality on the application area with little or no fodder in deficit rainfall years. 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 to sound land use management. Blocks are to be removed from the lease and processed into the finished product at another centre. (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. -- 5 of 8 -- Warden’s Court of Queensland 4 July 2000 80085MLA.ROC 6 The proposed mining activity is in an isolated area away from human habitation. The mining will not have any deleterious effect on any river or creek system. 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. (k) Will the public right and interest be prejudiced? No factors prejudicial to the public right and interest have been identified. It appears there are no endangered flora or fauna within the application area. There are no public utilities on or across the application area. There are no sites of historical interest or aboriginal significance within the area. If any such sites are identified, the EMOS can be amended to put forward specific site protection or site avoidance strategies. It is in the public interest to encourage and facilitate the extraction of minerals (19 AMPLJ Wardens Court Darwin 11 June 1999 – Darwin Dolomite Pty Ltd v Top End Native Plant Society.) (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 if a mining lease is granted for the term recommended for the following reasons: ♦ A small scale/low impact operation is planned. ♦ It is unlikely that the land applied for is of any interest to a large scale miner. -- 6 of 8 -- Warden’s Court of Queensland 4 July 2000 80085MLA.ROC 7 ♦ The location of the proposed mining operation and the proposed method of mining is unlikely to cause environmental or public interest concerns about safety. ♦ A realistic security deposit will be imposed to guard against financial failure of the miner to ensure rehabilitation is completed. ♦ The applicant appears to have sufficient experience in the industry to accurately assess the potential of the project. ♦ There is a market for the product and the project will provide employment. In my view, no good reason has been shown for a refusal to grant the lease application (Carr –v- Simnovec, Pacminex –v- Aust Nephrite Jade Mines supra). (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 no 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 VII, and post mining will return to Class VII. The proposed mining operation appears, on the evidence, an appropriate land use, taking into account the current and prospective uses of the land. 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 the 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). Any infrastructure erected on this lease area must be removed at the completion of mining and rehabilitation. -- 7 of 8 -- Warden’s Court of Queensland 4 July 2000 80085MLA.ROC 8 RECOMMENDATION: Upon consideration of all the matters set forth in s.269 (4) of the Mineral Resources Act 1989, I recommend that the mining lease be granted over the whole of the application area for the purpose of mining for SLATE and SANDSTONE as BUILDING STONE, and for the establishment of infrastructure namely WORKSHOP and LIVING QUARTERS for a term of 15 YEARS (s.270 (2)), subject to compensation being settled between the parties or determined by this Court. Dated at BRISBANE this 4 th day of July 2000. F.W. WINDRIDGE MINING WARDEN  2000 -- 8 of 8 --