Classic Sun Pty Ltd, Re [1998] QMW 53

70166MLA.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 A MINING LEASE (NUMBER 70166) IN THE EMERALD DISTRICT BEFORE: MR F W WINDRIDGE, WARDEN APPLICANT: CLASSIC SUN PTY LTD 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 namely GRANITE in block or slab form. The application is for surface area of 19.20 hectares and is situated on LOT 8 CLER 4067, County of CLERMONT, Parish of STEVENSON, about 22 kilometres south west of Clermont. 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. [1998] QMW 53 -- 1 of 8 -- Warden’s Court of Queensland 8 October 1998 70166MLA.EME 2 The application was lodged at the Mining Registrar’s Office at EMERALD on 14 MAY 1998. A certificate of application was issued on the same date (s.252 (1)) setting the last date for receipt of objections as 18 JUNE 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 company is an eligible person as defined in section 5 of the Act and is thus entitled to make the application under section 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 therefore not 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 time of marking out and lodging the application, the applicant was the holder of PROSPECTING PERMIT 70935 (s.232(1)). A declaration of posting was lodged on 24 JUNE 1998 (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 -- 2 of 8 -- Warden’s Court of Queensland 8 October 1998 70166MLA.EME 3 (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 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 resource sought is a mineral as defined in section 5 of the Act. 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. There is visual evidence of the granite outcrops in the application area. 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. (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. -- 3 of 8 -- Warden’s Court of Queensland 8 October 1998 70166MLA.EME 4 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 25 years. The applicant states the resource could support a mine life of 100 years. The applicant does not refer to any previous experience in this particular industry. Generally long term leases are granted for this type of industry to cater for fluctuations in demand and other economic factors. I consider a term of 20 years should be granted in the first instance. 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. Extraction of granite blocks is basically an extractive industry utilising shallow open cuts but does require extensive plant, processing equipment, or large injections of capital to acquire the essential machinery. Most of that machinery, or the funds to acquire that machinery, is available. The applicant has mined sapphires and gold 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 8 -- Warden’s Court of Queensland 8 October 1998 70166MLA.EME 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 members of the applicant company is satisfactory. (h) Is there any disadvantage to the holder of or applicant for any exploration permit or mineral development licence? 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 mainly flat with nil pasture and no crops. The intrusion of granite supports no stock or crops and is suitable only for dimension stone quarrying. 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? -- 5 of 8 -- Warden’s Court of Queensland 8 October 1998 70166MLA.EME 6 The proposed mining activity is in an isolated area away from human habitation except for a nearby farm residence. However, given suitable equipment that meets the normal criteria for the control of noise and exhaust emissions, I expect the effect of the operation to be miniminal. A vegetated buffer bund is to be constructed. 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 project has been reviewed by the Environmental Officer who has issued a Preliminary Environment Assessment (PEA). A satisfactory response has been received in respect of the issues raised. 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. (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 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. Access is directly off a public road. (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 8 October 1998 70166MLA.EME 7 ♦ 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. ♦ 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 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. 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 -- 7 of 8 -- Warden’s Court of Queensland 8 October 1998 70166MLA.EME 8 operations or the 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). RECOMMENDATION: Having dispensed with the hearing and upon consideration of all the matters set forth in s.269(4) of the Act, I recommend to the Minister – 1. That the mining lease be granted over the whole of the application area for the purpose of mining GRANITE BUILDING STONE for a term of 20 YEARS. (s.270(2)). 2. That the Minister not approve any assignment of the whole or of a substantial part of the lease within 10 years unless good cause is shown. Dated at BRISBANE this 8 th day of October 1998. F.W. WINDRIDGE MINING WARDEN  1998 -- 8 of 8 --