Australian Fonegrain Marble Pty Ltd, Re [1997] QMW 48

REPORT AND RECOMMENDATION OF WARDEN PURSUANT TO SECTION 269 AND 270 OF THE MINERAL RESOURCES ACT, 1989. IN THE MATTER OF: APPLICATION FOR MINING LEASE NUMBER 20294 IN THE MAREEBA MINING DISTRICT. BEFORE: F.W. WINDRIDGE, WARDEN. APPLICANT: AUSTRALIAN FINEGRAIN MARBLE PTY LTD REPORT: This Application for a mining lease under section 232 of Part 7 of the Mineral Resources Act 1989 (the act) for the purpose of mining for LIMESTONE and MARBLE as BUILDING STONE is for an area of 57.45 hectares situated on LOT 3 on LD143, County of LYNE, Parish of MARCIUS, approximately 4 kilometres west of Chillagoe. 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 [1997] QMW 48 -- 1 of 13 -- 2 estate or interest in the land (s.10), although there is the power to determine title to land (s.363). The Application was lodged at the Mining Registrars Office at MAREEBA on 11 NOVEMBER 1996 and a certificate of application was issued on 11 NOVEMBER 1996 (s.252(1), setting the last date for receipt of objections as 10 DECEMBER 1996 (S.252(2). No objections were lodged pursuant to Section 260 of the Act, and 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 Applicant is an eligible person as defined in Section 5, and is 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. -- 2 of 13 -- 3 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, the applicant was the holder of PROSPECTING PERMIT 20588 (S.232). A declaration of posting was lodged on 24 DECEMBER 1996, (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 (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 section 270 of the act. -- 3 of 13 -- 4 (B) IS THE LAND APPLIED FOR 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. 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. The area is well known for the production of this type of building stone and the deposit is usually visible on the surface making surface sampling an easy operation. The economic viability of the project is a matter for the applicants commercial assessment, and not a matter for this Court. It is necessary for the pit to be opened up to show intending buyers the type and quality of stone available. (C) IF THE LAND APPLIED FOR IS MINERALISED WILL THERE BE AN ACCEPTABLE LEVEL OF DEVELOPMENT AND UTILISATION OF THE MINERAL RESOURCES WITHIN THE AREA APPLIED FOR? 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? -- 4 of 13 -- 5 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. It appears that there is no 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 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 -- 5 of 13 -- 6 capability and that they have sufficient technical expertise to properly carry on the proposed mining operation under the proposed lease. Persons associated with the Applicant have been engaged in mining on other leases in this and the Georgetown area, and in my opinion the applicant 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 satisfactory or unsatisfactory. The local Field Officer will be available to monitor performance and rehabilitation. 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. Reports indicate that past performance has been competent with a high standard of rehabilitation. (H) IS THERE ANY DISADVANTAGE TO THE HOLDER OF OR APPLICANT FOR EXPLORATION PERMITS OR MINERAL DEVELOPMENT LICENCES. -- 6 of 13 -- 7 At the time of marking out, the applicant was the holder of the pre-requisite exploration tenure. There is no evidence that the holder of or applicant for any other 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? The land appears to be used for low intensity grazing and it seems the proposed mining operation will cause no significant disturbance to stock or stock watering or management facilities. 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. (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 human habitation. Mineral treatment activities on site appear to be planned in such a way as to be unlikely to have a -- 7 of 13 -- 8 deleterious effect on any river system. Chemicals will not be used in the separation process. Tailings dams or catchment dams will not be constructed. A draft EMOS has been lodged and accepted by the Registrar, subject to any final recommendation of the Warden or condition imposed by 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 right of way of any person will not be affected. 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 but there may be sites of aboriginal significance on the application area. If any such sites are identified, the E.M.O.S. document can be amended to allow for site protection or avoidance strategies. -- 8 of 13 -- 9 (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. -- 9 of 13 -- 10 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 is currently 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 or determination of the Court will compensate the landowner for any conflict or loss over land use (s.279). I note that a compensation agreement has not been filed -- 10 of 13 -- 11 with the Registrar in accordance with section 279(3) of the act. If not lodged within three months of the date of this recommendation, the Registrar is bound to refer the matter of compensation to the Wardens Court for determination. 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 compensation and if necessary, injunctive relief under the powers contained in Section 363. RECOMMENDATION: Having dispensed with the hearing and 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 20 years (s.269(4) subject to compensation being settled or determined by this Court. -- 11 of 13 -- 12 Dated at BRISBANE this 28th day of February 1997. F.W. WINDRIDGE MINING WARDEN. SUMMARY SHEET NUMBER 20294 20294MLA.MAR D1.MD4.2/97 DISTRICT MAREEBA WARDEN F W WINDRIDGE APPLICANT AUSTRALIAN FINEGRAIN MARBLE PTY LTD OBJECTOR NIL -- 12 of 13 -- 13 AREA 57.45 ha RESOURCE LIMESTONE and MARBLE BUILDING STONE. TERM 20 years COMPENSATION OUTSTANDING RECOMMENDATION GRANT DATE 28 FEBRUARY 1997. TRANSMITTED 3 MARCH 1997. SECTION 269 and 270 MRA. CATCHWORDS -- 13 of 13 --