Elliot, Re [1999] QMW 59

10247MLA.CHT 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 10247) IN THE CHARTERS TOWERS DISTRICT BEFORE: MR F W WINDRIDGE, WARDEN APPLICANT: Maurice James ELLIOT REPORT: The applicant (hereinafter referred to as the miner or applicant miner) seeks 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 GOLD, SILVER ORE, SAPPHIRE, ZIRCON, DIAMOND, and for associated infrastructure purposes namely TREATMENT PLANT, WORKSHPS, STOCKPILES, DAMS and LIVING QUARTERS. The application is for surface area of 356 hectares and is situated on LAVA PLAINS PASTORAL HOLDING. Access is through the same holding. The lease, if granted, is to be known as “LAVA PLAINS”. 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 Save 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 [1999] QMW 59 -- 1 of 8 -- Warden’s Court of Queensland 17 June 1999 10247MLA.CHT 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 CHARTERS TOWERS on 27 APRIL 1999. A certificate of application was issued on the same date (s.252 (1)) setting the last date for receipt of objections as 25 MAY 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 an eligible person as defined in s.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, 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(1)). At the time of marking out and lodging the application, the applicant was the holder of Prospecting Permit 10591 and Exploration Permit 10154.(s.232(1)). A declaration of posting was lodged on a date unknown and therefore it is not known if the time limit of section 252 (9) has been complied with. Service of documents was in accordance with s.399. -- 2 of 8 -- Warden’s Court of Queensland 17 June 1999 10247MLA.CHT 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 or substantially 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 lease is sought is appropriate. The application area is within an area generally recognised as gem bearing. The applicant is required to satisfy the Court that mineralisation exists. The area has produced sapphires in the past. The applicant has conducted exploration programs under EPM 10154 and it is believed that there is mineralisation over the whole of the application area. 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. The applicant has been a significant producer of sapphire in the Emerald District for the past 15 years. -- 3 of 8 -- Warden’s Court of Queensland 17 June 1999 10247MLA.CHT 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 in respect of which the mining lease is sought is not an appropriate size and shape. The area sought follows the mineralisation. The Field Officers Report does not indicate 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 10 years. The proposed lease is some 356 hectares in area, and it is proposed to work during the dry season. It will take therefore a number of years to work and rehabilitate the lease area. 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. Mining for sapphire 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 provided details of the plant and equipment that he has available for the project. The applicant has mined sapphires for a number of years and in my opinion 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]. -- 4 of 8 -- Warden’s Court of Queensland 17 June 1999 10247MLA.CHT 5 (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? 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 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 “undulating to hilly with flats disturbed by previous mining.” The Field Officer indicates vegetation is medium forest country mostly with iron bark and gum. Predominant native pasture is black spear grass. 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. -- 5 of 8 -- Warden’s Court of Queensland 17 June 1999 10247MLA.CHT 6 (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 lease is to become part of Project PJ100103. 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. There are no other 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? 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 term recommended for the following reasons: -- 6 of 8 -- Warden’s Court of Queensland 17 June 1999 10247MLA.CHT 7 ♦ A small scale operation is planned. ♦ 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 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 with disturbed land being Class VIII. Post mining, the land will return to Class VII with rehabilitation and the planting of tropical stylo. The proposed mining operation appears, on the evidence, an appropriate land use, taking into account the current and prospective uses of the land. There is no information before the Court in relation to compensation. However, the lease cannot issue until compensation is settled by the parties or determined by this Court. -- 7 of 8 -- Warden’s Court of Queensland 17 June 1999 10247MLA.CHT 8 Section 281(6) provides that any agreement or determination is binding on the parties and the parties’ personal representatives, successors and assigns. 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). In respect of liability, the owner has protection under section 387 of the MRA. 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 whole of the application area for the purpose of mining for GOLD, SILVER ORE, SAPPHIRE, ZIRCON, DIAMOND and for the establishment of infrastructure namely TREATMENT PLANT, WORKSHOP, STOCKPILES, DAMS and LIVING QUARTERS for a term of 10 (TEN) YEARS, subject to compensation being settled between the parties or determined by this Court. (s.270(2)). Dated at BRISBANE this 17th day of June 1999. F.W. WINDRIDGE MINING WARDEN  1999 -- 8 of 8 --