David Mitchell (NSW) Pty Ltd, Re [1998] QMW 51

MLA50146 1 IN THE WARDEN’S COURT OF QUEENSLAND HELD AT BRISBANE IN THE MATTER OF: APPLICATION UNDER PART 7 OF THE MINERAL RESOURCES ACT 1898 FOR A MINING LEASE (NUMBER 50146) IN THE BRISBANE DISTRICT BEFORE: MR F W WINDRIDGE, WARDEN APPLICANT: DAVID MITCHELL (NSW) 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 LIME/LIMESTONE. The application is for surface area of 51.03 hectares and is situated on LOT 2 on R P 36822 County of MERIVALE, Parish of WILDASH, about 21 kilometres south east of Warwick. 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 BRISBANE on 3 July 1998. A certificate of application was issued on 15 July 1998 (s.252 (1)) setting the last date for receipt of objections as 12 August 1998 (s.252(2)). [1998] QMW 51 -- 1 of 8 -- Warden’s Court of Queensland 4 September 1998 MLA50146.BRI 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 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 EXPLORATION PERMIT 9551 (s.232(1)). A declaration of posting was lodged on 17 August 1998 (s.252(9)), being within a time extended by the Registrar, 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). 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 -- 2 of 8 -- Warden’s Court of Queensland 4 September 1998 MLA50146.BRI 3 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. The application area is within an area generally recognised as limestone bearing. The applicant operates currently on three leases which are located in this application area. Those leases are surrendered for the purpose of allowing this application to proceed over those leases and some additional area required for development and rehabilitation. Mining and processing operations have been conducted on this site for a number of years. (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 already conducts mining and processing operations on the three leases that are surrendered. (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, present operations on leases already granted, and some additional area for future development and rehabilitation. -- 3 of 8 -- Warden’s Court of Queensland 4 September 1998 MLA50146.BRI 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 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 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 limestone 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 mined limestone and similar products for a number of years over a number of tenures along the east coast of Australia, 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 applicant and associated companies have conducted operations for a number of years and no complaint or lack of performance has been brought to my attention. 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 -- 4 of 8 -- Warden’s Court of Queensland 4 September 1998 MLA50146.BRI 5 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. The three leases that are being surrendered are part of current operations conducted by the applicant. (i) Will the operations to be carried on under the proposed lease conform with sound land use management? The land that is not being used for mining or processing purposes 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 with native grasses No cultivated land is involved. 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 4 September 1998 MLA50146.BRI 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. 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. 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. That EMOS refers to a number of leases including the surrendered leases. This lease when granted will become part of Project PJM 50073. (k) Will the public right and interest be prejudiced? No factors prejudicial to the public right and interest have been identified. Access will be directly off a public road. Appropriate strategy has been put in place in relation to the activities of trucks and any school bus that operates in the area. 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. (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 -- 6 of 8 -- Warden’s Court of Queensland 4 September 1998 MLA50146.BRI 7 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. ♦ 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 not currently used for mining and processing under the surrendered leases 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). There is no information provided to the -- 7 of 8 -- Warden’s Court of Queensland 4 September 1998 MLA50146.BRI 8 Court in relation to compensation and therefore it is not known if a compensation agreement has 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 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). 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 that the mining lease be granted over the whole of the application area for a term of 20 YEARS (s.270(2)), subject to compensation being settled or determined by this Court. Dated at BRISBANE this 4 th day of September 1998. F.W. WINDRIDGE MINING WARDEN  1998 -- 8 of 8 --