Arco Coal Australia Inc & Mitsui Coal Development (Australia) Pty Ltd, Re [2000] QMW 94

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 80086) IN THE ROCKHAMPTON DISTRICT BEFORE: MR F W WINDRIDGE MINING WARDEN APPLICANT: ARCO COAL AUSTRALIA INC 87% MITSUI COAL DEVELOPMENT (AUSTRALIA) PTY LTD 13% REPORT: The applicants (hereinafter referred to as the miners or applicant miners) seek a mining lease under the provisions 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. The application is for surface area of 3026.19 hectares and is situated land as described in detail in the application. Access is through land currently owned by the applicants or associated companies thereof. The lease, if granted, is to be known as CURRAGH EAST. 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 94 -- 1 of 8 -- Warden’s Court of Queensland 19 June 2000 80086MLA.ROC 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 ROCKHAMPTON on 10 APRIL 2000. A certificate of application was issued on 13 APRIL 2000 (s.252 (1)) setting 22 MAY 200 as the last date for receipt of objections (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 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 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, at least one of the applicants was the holder of PROSPECTING PERMITS 80222, 80223 and MDL 162. (s.232(1)). A declaration of posting was lodged on 9 June 2000, and service of documents was in accordance with s.399. -- 2 of 8 -- Warden’s Court of Queensland 19 June 2000 80086MLA.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 resource sought is a mineral (s.5).The applicant is entitled to construct any infrastructure 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 an area known for the production of coal. This lease is to the east of current operations. A resource of greater than 50 million tonnes has been identified. Exploration included 1000 drill holes. The applicant is required to satisfy the Court that mineralisation exists. 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 applicant has sufficient resources to progress development to an acceptable level. -- 3 of 8 -- Warden’s Court of Queensland 19 June 2000 80086MLA.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. (e) Is the term sought appropriate? The term of lease applied for is 25 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 applicants have the necessary financial and technical capabilities or access to those resources to carry out the mining operation. The applicants currently conduct a mining operation on adjoining leases. The applicants have mined coal 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 applicants 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 standards are maintained and that all machinery is operated in a safe and competent manner by licensed persons. -- 4 of 8 -- Warden’s Court of Queensland 19 June 2000 80086MLA.ROC 5 (h) Is there any disadvantage to the holder of or applicant for exploration permits or mineral development licences? The applicant 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 capable for use as 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 “flat to gently sloping” with buffel, hairy panic, ruby saltbush and annual saltbush pasture. There is no arable top soil. Rainfall is often low. Stock fodder can vary and is dependent on good seasonal rainfall. 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. This application will form part of project PJ- 80028 known as “CURRAGH”. 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 -- 5 of 8 -- Warden’s Court of Queensland 19 June 2000 80086MLA.ROC 6 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. (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 applicants. 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: ♦ This lease will become part of the larger CURRAGH operation and extend the life of the current mining operation. ♦ 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. -- 6 of 8 -- Warden’s Court of Queensland 19 June 2000 80086MLA.ROC 7 ♦ There is a market for the product and the project will provide continuing employment opportunities in this area. 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 capable for use as grazing land 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. Companies associated with the applicants control all the land in the lease area except for one portion. 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 for that part of the proposed lease not controlled by the applicants through associated companies. 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). -- 7 of 8 -- Warden’s Court of Queensland 19 June 2000 80086MLA.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 COAL for a term of 25 YEARS (s.270(2)). Dated at BRISBANE this 19 th day of JUNE 2000. F.W. WINDRIDGE MINING WARDEN  2000 -- 8 of 8 --