Callaghan, Re [1998] QMW 1

80048MLA.ROC 1 REPORT AND RECOMMENDATION OF WARDEN PURSUANT TO SECTION 269 OF THE MINERAL RESOURCES ACT, 1989 IN THE MATTER OF: APPLICATION FOR MINING LEASE NUMBER 80048 IN THE ROCKHAMPTON DISTRICT. BEFORE: F.W. WINDRIDGE, WARDEN. APPLICANT: GREGORY ALAN CALLAGHAN 50% ROSEMARIE JEAN CALLAGHAN 50% CATCHWORDS: MINING - MINING LEASE – RECOMMENDATION – FAXED OBJECTIONS – PRACTICE DIRECTION – DEED OF AGREEMENT TO BE ATTACHED TO EMOS Mineral Resources Act 1989 REPORT: This Application for a mining lease under Part 7 of the Mineral Resources Act 1989 (the act) for the purpose of mining for CLAY is for an area of 9.84 hectares situated on LOT 2 on RP893.373 County of COOK, Parish of BINGERA, 15 kilometres south west of Bundaberg. 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 pursuant to section 271. All minerals are the property of the crown (s.8). 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. The Application was lodged at the Mining Registrars Office at ROCKHAMPTON on 10 APRIL 1997 and a certificate of application was issued on 1 MAY 1997 (s.252 (1), setting the last date for receipt of objections as 2 JUNE 1997 (S.252 (2). A number of objections were lodged. A number of these objections are on the approved form. The initial objection from the Burnett Shire Council was not on the approved form as required by section 260(1) of the Act, but on the advice of the Acting Registrar, an objection on the approved form was "faxed" to the Registrars office on the last date for the receipt of objections. The approved form of objection was received by mail two days after the date for the close of objections. The endorsement of each notice of objection as to the date and time of receipt, with the signature of the receiving officer, has not been completed. The imprint of the office date stamp does not inform the Court on the time of lodgement or the identity of the person who received the document. On 9 December 1997 in the Wardens Court at Bundaberg, the Court was informed that all objections had been withdrawn. It is therefore not necessary to rule on the validity of the form of objection. There is no evidence of service of a copy of the objection on the applicant as required by section 260(4) of the act. However, it should be noted that acquiescence by the applicant miner does not replace the requirements of the legislation. Registrars should follow the practice [1998] QMW 1 -- 1 of 6 -- Warden’s Court of Queensland 16 January 1998 80048MLA.ROC 2 directions issued on 6 November 1995 (Austex Mining NL v Caboolture Shire Council & Ors, MLA 50088) in order to protect the rights of the objectors and the applicant. The following matters have been taken into account and considered in making my recommendations pursuant to Section 269. (a) Have the provisions of the act been complied with? The material indicates that the Applicants are eligible persons as defined in Section 5, and are thus entitled to make the application under Section 233 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 mentioned in section 238(2) on the land, except for a dwelling owned by the applicants. Obviously consent is not an issue in this instance. I find the application is therefore not in respect of land over which, pursuant to Section 238 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 making the application, at least one of the applicants was the holder of Prospecting Permit 80163 (S.232). A declaration of posting was lodged on 5 June 1997 (s.252(9), and service of documents was in accordance with section 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 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 remaining; and (c) the consent of any trustee or other person is not required. The hearing was finalised at Bundaberg on 9 December 1997. (b) Is the land applied for 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 Applicants advice and I am satisfied on the detailed information given by them that the purpose for which the lease is sought is appropriate. Operations have been conducted on this land for a number of years with the product sold to a local manufacturer. The economic viability of the project is a matter for the applicant’s commercial assessment, and not a matter for this Court. (c) Will there be an acceptable level of development and utilisation of the resources within the area applied for? -- 2 of 6 -- Warden’s Court of Queensland 16 January 1998 80048MLA.ROC 3 I am satisfied the applicant has access to sufficient resources to develop the land to an acceptable level. Product is to be removed only occasionally with machinery transported to the site and the machinery will be removed when work is complete. (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 surface area taken has been defined by the mineralisation except for that part of the surface area that is required for ancillary purposes i e environmental controls and access. There is no evidence of 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 40 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 if mining is not completed, or surrender at an earlier date under section 309 if mining and rehabilitation is completed prior to the expiry date. (f) Has the applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? I have no reason not to accept the Applicants advice and I am satisfied that the Applicants have the necessary financial capability and that they have sufficient technical expertise to properly carry on the proposed mining operation under the proposed lease. The applicant has extracted product from 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 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 all machinery is operated in a safe and competent manner by licensed persons where necessary. The applicants have extracted material from this site for a number of years. Figure 1 shows product currently stored on site. An inspection on 8 December 1997 did not indicate any environmental problems, and prior inspections by the Field Officer did not raise any environmental concerns. It is evident from my inspection that the applicants have commenced planting of the vegetation barrier. This barrier should be a reasonable height within two years and assist the visual amenity of the site. (h) Is there any disadvantage to the holder of or applicant for exploration permits or -- 3 of 6 -- Warden’s Court of Queensland 16 January 1998 80048MLA.ROC 4 mineral development licences. At least one of the applicants was the holder of the relevant pre-requisite exploration title at the time of marking out. There is no evidence that the holder of or applicant for any exploration tenure or MDL has been disadvantaged. (i) Will the operations to be carried on under the proposed mining lease conform with sound land use management? Some part of the land appears to be used for low intensity grazing, other than that part already used for extractive industry, and it seems the proposed mining operation will cause no significant disturbance to stock or stock watering or management facilities. The applicants are the owners of the land. Information has been supplied as to the Applicants 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. The deposit is small in size and will only be utilised intermittently. (j) Will there be adverse environmental effects caused by the proposed operation, and if so, the extent thereof? The proposed mining activity is in an isolated area away from high density human habitation, although there are residences in the general area. Figure 2 shows a view from the site northwards to the nearest residences. Mineral treatment activities on site appear to be planned in such a way as to be unlikely to have a deleterious effect on any river system. Chemicals will not be used in the separation process. At the completion of the project, any tailings dams can be with the consent of the landowner, left as watering points for stock or native fauna, or decommissioned in the approved way. An EMOS has been lodged and accepted by the Registrar under delegation from the Minister, subject to any recommendation of this Court or 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. From the evidence that is available, it appears that there are no public utilities running on or across the application land. The application does not identify any easement. Correspondence from the Wide Bay- Burnett Electricity Board refers to mining "in the vicinity of a transmission line". There is no map or sketch showing the location of the electricity easement. However, the applicants have agreed to conditions put forward by the Electricity Corporation. The right of way of any person will not be affected. Under Part 8 of the act, the proposed use is a permitted use as the Local Government (Planning and Environment) Act 1990 is not applicable in this instance. There is no evidence to suggest that there are endangered flora or fauna on the application area. There is no evidence to suggest that there are any sites of historical interest or aboriginal significance on the application area. If any such sites are identified, the E.M.O.S. document can -- 4 of 6 -- Warden’s Court of Queensland 16 January 1998 80048MLA.ROC 5 be amended to allow for site protection or 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, and not this Court. When all other aspects of the application are taken into account and considered, 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: (1) a small scale operation is planned. (2) it is unlikely that the land applied for is of any interest to a large scale miner. (3) the location of the proposed mining operation and the method of mining is unlikely to cause environmental or public interest concerns. (4) a realistic security deposit, subject to E.M.O.S. discounts if appropriate, will be imposed to guard against financial failure of the miner to ensure rehabilitation is completed. (5) the applicant appears to have sufficient experience in the industry to accurately assess the potential of the project. (6) there is a market for the product and the project will provide employment. No person claiming a native title interest has lodged any 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.) (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 extraction purposes is used for grazing purposes and appears, on the evidence and subject to any further evidence that may be tendered in any compensation hearing, 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 is not required as the applicants are the owners of the land. This recommendation is based on an assessment of the information supplied. I have had the assistance of a report prepared by Field Officer Elrick in addition to the evidence given by that officer. The withdrawal of objections resulted in two deeds dated 9th December 1997 between the applicant miner, Wide Bay Brickworks Pty Ltd, and the Burnett Shire Council and other objectors. It has been requested that these deeds be incorporated into the lease conditions as "covenants". It may be more appropriate, given the content of the deeds, that the deeds be -- 5 of 6 -- Warden’s Court of Queensland 16 January 1998 80048MLA.ROC 6 deemed to be part of the EMOS. However, the documents are submitted for the Minister’s consideration. RECOMMENDATION: Upon consideration of all the matters set forth in section 269 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 40 years (s.269(4). Dated at BRISBANE this 16th day of January 1998. F.W. WINDRIDGE MINING WARDEN. -- 6 of 6 --