De Lacey, Re [1998] QMW 58

20309MLA.MAR 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 20309 IN THE MAREEBA DISTRICT BEFORE: MR F W WINDRIDGE, WARDEN APPLICANT: Ralph DE LACEY. 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 GOLD and SILVER ORE, and the establishment of infrastructure namely a TREATMENT PLANT, WATER SUPPLY, TAILINGS DAM and LIVING QUARTERS. The application is for surface area of 84.8725 hectares on PLAN 1/CF11, County of CHELMSFORD, Parish of MAYTOWN, being on a Reserve in the Palmer River area formerly known as R.16. 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 MAREEBA on 28 AUGUST 1998. A certificate of application was issued on the same date (s.252 (1)) [1998] QMW 58 -- 1 of 9 -- Warden’s Court of Queensland 28 October 1998 20309MLA.MAR 2 setting the last date for receipt of objections as 2 OCTOBER 1998 (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)). (a) Have the provisions of the Act been complied with? The material indicates that the Applicant is an eligible person as defined in section 5 of the Act and is entitled to make the application under section 232 of the Act. I accept, on the material before me, that the land applied for is within a reserve as defined in the Act, but there is no relevant permanent building or relevant feature as defined on the land. (s.238(1)). The Reserve is jointly administered by the Department of Mines and Energy and the Department of Environment and Heritage. Formal consent of the joint trustees is not finalised. However, D.E.H. has given tacit approval for the application to proceed subject to the findings of a Heritage Survey. 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. At the present time, this consent is conditional. At the time of marking out and lodging the application, the applicant was the holder of EXPLORATION PERMIT 10922 (s.232(1)). A declaration of posting was lodged at the Registrars office on a date unknown. There is therefore no information before the Court to indicate if the declaration was lodged within time. However, it appears that as there have been no objections, no person has been or is disadvantaged by any failure to lodge on time. (s.252(9)). Service of documents was in accordance with s.399. -- 2 of 9 -- Warden’s Court of Queensland 28 October 1998 20309MLA.MAR 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 the joint trustees or other person is required but will be under consideration at a later date. 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 as defined in section 5 of the Act, and the other purposes namely infrastructure are purposes associated with the winning of those minerals. I accept the Applicant’s advice and I am satisfied on the detailed information given by them that the purpose for which the lease is sought is appropriate. The application area is within the area formerly known as R16 and is known as a producer of alluvial gold. The applicant is only required to satisfy the Court that mineralisation exists. (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 develop the land to an acceptable level. The applicant has mined for alluvial gold in this general area for 4 years and has the equipment and staff necessary to complete the mining operation. (d) Is the area sought an appropriate size and shape? -- 3 of 9 -- Warden’s Court of Queensland 28 October 1998 20309MLA.MAR 4 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 lease area covers the creek and gully beds and gold bearing terraces. 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 10 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 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. Alluvial gold mining is basically an simple process involving the removal of mineral bearing alluvium, and processing same through a simple plant. It does not require expensive plant, processing equipment, or large injections of capital. The applicant has mined alluvial gold in this area 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]. (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 -- 4 of 9 -- Warden’s Court of Queensland 28 October 1998 20309MLA.MAR 5 standards are maintained and that all machinery is operated in a safe and competent manner by licensed persons. Prior to the issue of the lease, departmental records should be checked to ascertain if the rent, royalty and rehabilitation history of the applicant is satisfactory. (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 steep and rocky with spear grass as the only pasture. Land class is VII. There is no arable top soil. Rainfall is variable. 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 -- 5 of 9 -- Warden’s Court of Queensland 28 October 1998 20309MLA.MAR 6 and any further requirement of the Minister for Mines and Energy and the D.E.H as joint Trustees. This operation becomes part of PJM 40009. 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. There are no other environmental factors of significance which may be adversely effected by the operation. (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. It appears there are no public utilities on or across the application area. It appears there are some sites of historical interest within the area. A heritage survey will identify any such sites. If any such sites are identified, the EMOS can be amended to put forward specific site protection or site avoidance strategies for those sites worthy of preservation. It appears the applicant is interested only in mining the alluvium from stream sediment beds and old terraces. Due to the high incidence of flooding over the past century, it would be unlikely that any sites of significance remain in the area of interest to the miner. However, the EMOS can be amended, or undertakings attached to the EMOS to provide protection to any sites identified. (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: ♦ 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. -- 6 of 9 -- Warden’s Court of Queensland 28 October 1998 20309MLA.MAR 7 ♦ 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. ♦ 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 held as a Reserve but is used for grazing purposes under a permit. It appears, on the evidence, that the land is suitable for no other use except for the preservation of significant sites of historical interest. 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 subject to any requirements of the D.E.H. on specific sites. 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. The agreement will basically be the consent of the Joint Trustees. -- 7 of 9 -- Warden’s Court of Queensland 28 October 1998 20309MLA.MAR 8 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). GENERAL COMMENTS I note that this lease application is one of three applications that will form part of one project and be worked together or in sequence in the same general area, and that Field Officer’s Report makes mention of certain matters particularly stone pitching. It is recommended that the area be surveyed by a suitably qualified person under the authority of the permit issued under the Cultural Record (Landscapes Queensland and Queensland Estate) Act 1987, that this Permit be issued with minimum delay, and that the Cultural and Heritage Survey findings be referred to the applicant as soon as possible for inclusion in his EMOS if necessary. It is noted that the provisions of s.238 have not been complied with. However, given the procedures adopted by the joint trustees, compliance is not possible until the results of any survey are known. Under the particular circumstances which exist in relation to the administration of this Reserve, I am satisfied there has been substantial compliance on the part of the applicant miner. -- 8 of 9 -- Warden’s Court of Queensland 28 October 1998 20309MLA.MAR 9 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 FOR GOLD and SILVER ORE, and for specified INFRASTRUCTURE associated with that mining for a term of 10 YEARS, (s.270(2)), subject to the final consent of the joint trustees. Dated at BRISBANE this 28 th day of October 1998. F.W. WINDRIDGE MINING WARDEN  1998 -- 9 of 9 --