Curin & Dowd, Re [2000] QMW 97

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 95309) IN THE WINTON DISTRICT BEFORE: MR F W WINDRIDGE MINING WARDEN APPLICANT: Stjepan CURIN 50% Michael Lawrence DOWD 50% REPORT: The applicants (hereinafter referred to as the miners or applicant miners) seek a mining lease under the provisions 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 OPAL. The application is for surface area of 4.158100 hectares and is situated on LOT 1093 on PLAN PH1917, County of ROSEBROOK, Parish of CALPINDA being part of BAREEDA HOLDING. Access is through the same property. The lease if granted is to be known as “HELL FIRE”. 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 97 -- 1 of 8 -- Warden’s Court of Queensland 23 June 2000 95309MLA.WIN 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 WINTON on 14 APRIL 2000. A certificate of application was issued on the same date (s.252 (1)) setting the 14th of MAY 2000 as the last date for receipt of objections. (s.252 (2)). No objections were lodged pursuant to s.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 each of the applicants 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. 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, at least one of the applicants was the holder of PROSPECTING PERMIT 95747 (s.232 (1)). A declaration of posting was lodged on 15 JUNE 2000 (s.252 (9)), and service of documents was in accordance with s.399. -- 2 of 8 -- Warden’s Court of Queensland 23 June 2000 95309MLA.WIN 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 resource sought is a mineral (s.5). There is no proposed infrastructure, although the applicants have the right to erect infrastructure under 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 an area generally recognised as opal bearing. The applicants have prospected the area and located surface trace. The area has been disturbed by previous mining. The economic viability of the project is a matter for the applicant’s commercial assessment, but 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 applicants have sufficient resources to progress development to an acceptable level. -- 3 of 8 -- Warden’s Court of Queensland 23 June 2000 95309MLA.WIN 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 evidence of any 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 applicants have the option of renewal under s.286 of the act, 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 applicants have the necessary financial and technical capabilities or access to those resources to carry out the mining operation. Mining for opal is basically an extractive industry utilising shallow open cuts and does not require extensive plant, processing equipment, or large injections of capital. The applicants have mined opal for a number of years and in my opinion have 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 -- 4 of 8 -- Warden’s Court of Queensland 23 June 2000 95309MLA.WIN 5 to monitor performance and rehabilitation and report any breach of conditions. The Inspectorate should monitor the methods adopted for mining, ensuring that industry 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? At lease one of the applicants was the holder of the relevant pre-requisite title under s.232 of the MRA 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 no significant disturbance to stock or stock watering or management facilities. The general nature of the land is described as “spinifex and gidyea”. There are no pasture grasses. 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 with sound land use management. (j) Will there be adverse environmental effects caused by the proposed operation, and if so, the extent thereof? -- 5 of 8 -- Warden’s Court of Queensland 23 June 2000 95309MLA.WIN 6 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. 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 controls are in place. There are no other environmental factors of significance that may be adversely effected by the operation. It is observable from other operations that the disturbed crust retains more of the natural rainfall, thereby encouraging the regeneration of native flora. The applicant will be required to backfill where possible as mining progresses, keeping out-standing rehabilitation to a bare minimum where possible. (k) Will the public right and interest be prejudiced? No factors prejudicial to the public right and interest have been identified. There appears to be 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. (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 section 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 23 June 2000 95309MLA.WIN 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. A compensation agreement or determination of the Court will compensate the landowner for any conflict or loss over land use (s.281). I note that a compensation agreement has been filed with the Registrar in accordance with s.279 of the Act. 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 -- 7 of 8 -- Warden’s Court of Queensland 23 June 2000 95309MLA.WIN 8 parties are at liberty to apply to the Court for a determination or award of compensation, and if necessary, injunctive relief under the powers contained in s.363 (6). Any living quarters erected on this lease must be regarded as temporary and removed at the completion of mining and rehabilitation. 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 OPAL for a term of FIFTEEN YEARS (s.270 (2)). Dated at BRISBANE this 23 rd day of June 2000. F.W. WINDRIDGE MINING WARDEN  2000 -- 8 of 8 --