BHP Minerals Pty Ltd, Re [1999] QMW 71

ML1923ASA.EME 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 ADDITIONAL SURFACE AREA IN RELATION TO MINING LEASE NUMBER 1923 IN THE EMERALD DISTRICT BEFORE: MR A J CHILCOTT, ACTING WARDEN APPLICANT: BHP MINERALS PTY LTD REPORT: This application for additional surface area for mining lease 1923 under the provisions of part 7 of the Mineral Resources Act 1989 (hereinafter referred to as the MRA or the Act) is for the purpose of mining for coal, gaseous hydrocarbons, construction of a water pipeline and on account of disturbance which may result from mining operations to be conducted beneath the application area. The application is for an area of 9.023 hectares and is situated on that part of Gordonstone Access Road abutting the eastern boundary of Lot 42 on Crown Plan 864579, County of Talbot, Parish of Yamala. Power to grant such an application for additional surface area to the 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 [1999] QMW 71 -- 1 of 8 -- Warden’s Court of Queensland 15 July 1999 ML1923ASA.EME 2 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 8 March 1999. A certificate of application was issued on 15 March 1999 (s.252 (1)) setting the last date for receipt of objections as 26 April 1999 (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 the Applicant is eligible as defined in s.5 of the Act and is entitled to make the application under s.275 of the Act. The application area is located on or forming part of a reserve. I find that the application is therefore 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 a relevant permanent building or relevant feature on the land as defined in s.5 namely a water pipeline requiring the consent of any person (s.238(1)). A declaration of posting was lodged on 4 May 1999 (s.252(9)), and service of documents was in accordance with s.399. 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). -- 2 of 8 -- Warden’s Court of Queensland 15 July 1999 ML1923ASA.EME 3 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 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 application for additional surface area sought is appropriate. 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 the application for the additional surface area. (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. (d) Is the area sought an appropriate size and shape? There is nothing in the information supplied by the Applicant to suggest that the additional surface area of the land in respect of which the mining lease is sought is not an appropriate size and shape. The area sought follows the mineralisation. -- 3 of 8 -- Warden’s Court of Queensland 15 July 1999 ML1923ASA.EME 4 (e) Is the term sought appropriate? The term of lease is concurrent with ML 1923 and is to expire on 31 March 2006. 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 of the Act, or surrender at an earlier date under section 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. In my opinion the applicant has the necessary experience 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 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? This application relates to additional surface area and there is no evidence that the holder of or applicant for any other tenure or mineral development licence has been affected. -- 4 of 8 -- Warden’s Court of Queensland 15 July 1999 ML1923ASA.EME 5 (i) Will the operations to be carried on under the proposed lease conform with sound land use management? 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. There are no environmental factors of significance which 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 outstanding 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? -- 5 of 8 -- Warden’s Court of Queensland 15 July 1999 ML1923ASA.EME 6 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 section 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 additional surface area) for the term recommended for the following reasons: ♦ The application is part of a larger scale operation. ♦ It is unlikely that the land applied for is of any interest to a large scale miner. ♦ 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. No person claiming any right or interest under native title has lodged an objection. 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 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 not been filed with the Registrar in accordance with s.279 of the Act. -- 6 of 8 -- Warden’s Court of Queensland 15 July 1999 ML1923ASA.EME 7 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 compensation, and if necessary, injunctive relief under the powers contained in s.363(6). RECOMMENDATION: Upon consideration of all the matters set forth in s.269(4) of the Act, I recommend that the mining lease be granted over the additional surface area applied for being for the purpose of mining for coal, gaseous hydrocarbons, construction of water pipeline and on account of disturbance which may result from mining operations conducted beneath the application area for a term concurrent with ML1923 to expire on 31 March 2006, subject to compensation being settled between the parties or determined by this Court. (s.270(2)). Dated at BRISBANE this 15 th day of July 1999. A.J. CHILCOTT ACTING MINING WARDEN  1999 -- 7 of 8 -- Warden’s Court of Queensland 15 July 1999 ML1923ASA.EME 8 -- 8 of 8 --