Cameron, Re [1998] QMW 71

90133MLA.ISA 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 90133) IN THE MOUNT ISA DISTRICT BEFORE: MR F W WINDRIDGE, WARDEN APPLICANT: ROBERT BOND CAMERON REPORT: The applicant seeks a mining lease under the provisions of part 7 of the Mineral Resources Act 1989 (the Act) for the purpose of mining for BUILDING STONE IN BLOCK/SLAB, and infrastructure purposes namely TEMPORARY LIVING QUARTERS. The application is for surface area of 4.50 hectares and is situated on LOT 5, CP 865892, 13 kilometres west of Mt Cuthbert. 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. All minerals are the property of the Crown. The grant of a lease does not create any estate or interest in the land, although there is the power to determine title to land. The application was lodged at the Mining Registrar’s Office at MOUNT ISA on 1 DECEMBER 1997. A certificate of application was issued on the same date (s.252 (1)) setting the last date for receipt of objections as 19 JANUARY 1998 (s.252(2)). [1998] QMW 71 -- 1 of 8 -- Warden’s Court of Queensland 20 November 1998 90133MLA.ISA 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)). (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. I accept, on the material before me, that the land applied for is not within a reserve as defined in the Act, and that there is no relevant permanent building or relevant feature as defined on the land. (s.238(1)). I find that the Application is in respect of land over which, pursuant to s.238(1) of the Act, a mining lease shall not be granted without the consent of another person or persons. This consent relates to the road reserve which “cuts through” the lease. At the time of marking out and lodging the application, the applicant was the holder of PROSPECTING PERMIT 90413 (s.232(1)). A declaration of posting was lodged on 22 MAY 1998 (s.252(9)), and service of documents was in accordance with s.399. The declaration was lodged outside the time limits imposed by s.252(9). The applicant has explained that he was under the mistaken impression that he had lodged the declaration with other documents. When contacted by the Registrar, he arranged for the declaration to be lodged. It appears that no person has been disadvantaged by this omission, the only effect being on the applicant himself i e delay. I am prepared to find substantial compliance in relation to the lodgment of this declaration as it appears to be an oversight. However, as the consent of the trustees of the road reserve has not been lodged before the last day of objection, the area contained in the road reserve will be exempted from the lease. -- 2 of 8 -- Warden’s Court of Queensland 20 November 1998 90133MLA.ISA 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 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 required. The hearing was conducted at Townsville on 18 November 1998. The applicant appeared and provided further information. (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), and that the proposed infrastructure is necessary to assist in the winning of that mineral. (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 applicant has prospected the area under a prospecting permit and has confirmed the presence of the material he desires to extract from surface signs. Material to be removed is close to the surface. (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 operation will be of low impact because it involves only the removal of selected small boulders by hand in the first instance. -- 3 of 8 -- Warden’s Court of Queensland 20 November 1998 90133MLA.ISA 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. The deposits are located on the side of a rocky outcrop close to a public road. 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 20 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 section 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 applicant has the necessary financial and technical capabilities or access to those resources to carry out the mining operation. The applicant intends to hand pick selected rock in the first instance, utilising a bulldozer for ripping at a later date if necessary. The operation 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 experience in the gemstone industry and for the purposes of this operation 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]. (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 -- 4 of 8 -- Warden’s Court of Queensland 20 November 1998 90133MLA.ISA 5 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 exploration title 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 “hilly and rocky covered in spinifex with native grasses adjacent to creeks”. 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? 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. -- 5 of 8 -- Warden’s Court of Queensland 20 November 1998 90133MLA.ISA 6 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. The applicant will be able to backfill 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. It appears there are no endangered flora or fauna within the application area. There is a public road across the application area. The applicant does not intend to disturb the road 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 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: ♦ A small scale operation is planned. ♦ It is unlikely that the land applied for is of any interest to a large scale miner with greater resources. ♦ 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, subject to EMOS discounts if appropriate will be imposed to guard against financial failure of the miner to ensure rehabilitation is completed. -- 6 of 8 -- Warden’s Court of Queensland 20 November 1998 90133MLA.ISA 7 ♦ 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. The proposed operation is low impact and required only to ensure an adequate supply of material which the applicant intends to use in the ornamental stone industry, supplying commercial outlets with carved products. 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 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. 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 20 November 1998 90133MLA.ISA 8 As the applicant has not obtained the consent of the Cloncurry Shire Council prior to close of objections in relation to the roadway which crosses the application area, the area of the road reserve will be excluded from the surface area of the lease. RECOMMENDATION: Having dispensed with the hearing and 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 and associated infrastructure namely LIVING QUARTERS for a term of 20 YEARS (s.270(2)) subject to compensation being settled between the parties or determined by this Court, and excluding the surface area of the road reserve. Dated at BRISBANE this 20 th day of November 1998. F W WINDRIDGE MINING WARDEN  1998 -- 8 of 8 --