Brinsmead, Re [1999] QMW 73

60239MLA.QUI.REH 1 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 60239 IN THE QUILPIE DISTRICT BEFORE: MR A J CHILCOTT, ACTING WARDEN APPLICANT: REGINALD HENRY BRINSMEAD This application for a mining lease under section 232 of Part 7 of the Mineral Resources Act 1989 (the Act) for the purpose of mining for OPAL is for an area of O.8352 hectares being situated on Lot 4919 PH2151 County of Wellington Parish of Bundilla and being approximately 100 kilometres west of Eulo. One form of objection was lodged by Colin Vagg who was the landowner of the subject property. As a result of the objection being lodged the matter was set down for hearing at Cunnamulla Wardens Court on 12 November 1996. Subsequent to the hearing on 12 November 1996 a recommendation was made to the Minister that the mining lease be granted over the application area for a term of ten (10) years subject to compensation being settled or determined by this Court. It is noted that at the conclusion of proceedings in the compensation hearing before Warden Windridge, Mr Brinsmead stated he would voluntarily apply to have the term reduced to five years. A survey was completed on 8 September 1997 by a Departmental Surveyor which indicated that it appeared that a water hole was within 50 metres laterally of the subject lease area. The then Honourable Minister for Mines & Energy Mr Tom [1999] QMW 73 -- 1 of 3 -- Warden’s Court of Queensland 22 July 1999 60239MLA.QUI.REH 2 Gilmore MLA pursuant to Section 271(1)(c) of the Mineral Resources Act 1989 directed the Wardens Court hold a further hearing into Mining Lease Application Number 60239 limited to the determination as to whether the water hole met the definition of “restricted land” under the Act As a result of the Minister’s direction a further hearing was scheduled on 19 May 1999 at Cunnamulla Warden’s Court. Notices were subsequently sent to both the parties advising of the new hearing date. The applicant miner was the only party to appear at the further hearing on 19 May 1999. The lengthy delay in the re-hearing was due to the illness and unavailability of both the parties. Evidence received on 19 May 1999 from Reginald Henry Brinsmead indicated that the property had changed hands since the original hearing. During the course of taking evidence on 19 May 1999, photographs were tendered to the Court by the applicant miner giving an indication of how the waterhole in question appeared around the time of the original hearing. The original landowner Colin Vagg had argued at the initial hearing and in a submission to the Honourable the Minister for Mines and Energy that this water hole was within 50 metres laterally of the boundary of the lease. The question that then arises as a result of the survey is whether the water hole meets the definition of “restricted land” under the Mineral Resources Act. Turning to the Mineral Resources Act “restricted land (category B)” is defined in Section 5 as meaning land within 50 metres laterally of any of the following features – (a) a principal stockyard; (b) a bore or artesian well; (c) a dam; (d) another artificial water storage connected to a water supply; (e) a cemetery or burial place. Having considered the legislation, the evidence and having had the advantage of inspecting the proposed lease area at an earlier time, I am of the view that the -- 2 of 3 -- Warden’s Court of Queensland 22 July 1999 60239MLA.QUI.REH 3 waterhole in question does not constitute a “dam”, and does not fall within the definition of “restricted land” for the purposes of the Mineral Resources Act. The waterhole in question is merely a shallow open cut left from previous mining activities and fills with water suitable for stock watering purposes after rainfall. Further, when considering the Mineral Resources Act I am of the opinion that the waterhole does not come under the category of restricted land as being an artificial water storage connected to a water supply. In the circumstances and following the direction given by the Honourable the Minister dated 1 April 1998, I determine that the water hole in question does not meet the definition of “restricted land Category B” under the Act. RECOMMENDATION Having considered the evidence, the legislation, and the further evidence tendered to the Court on 19 May 1999, I recommend to the Honourable the Minister that a mining lease be granted over the application area for a term of five years subject to compensation being settled or determined by this Court. Dated at Brisbane this 22 nd day of July 1999. A.J. CHILCOTT ACTING MINING WARDEN © 1999 -- 3 of 3 --