Brinsmead, Re [1996] QMW 154

REPORT AND RECOMMENDATION OF WARDEN PURSUANT TO SECTION 269 AND 270 OF THE THE MINERAL RESOURCES ACT 1989. IN THE MATTER OF: APPLICATION FOR MINING LEASE NUMBER 60238 & 60239 IN THE QUILPIE DISTRICT BEFORE: A.J. CHILCOTT, ACTING MINING WARDEN APPLICANT: REGINALD HENRY BRINSMEAD REPORT: These Applications for mining leases under section 232 of Part 7 of the Mineral Resources Act 1989 (the act) for the purpose of mining for OPAL is for an area of 2.9232 hectares in respect of M.L. 60238 and in respect of M.L. 60239, for an area of 0.8352 hectares, both being situated on LOT 4919 PH 2151. The two lease applications are contained in the County of Wellington, Parish of Bundilla and the area is approximately 100 Kilometres north west of Eulo. 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 [1996] QMW 154 -- 1 of 21 -- 2 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 (S.363(5). The applications were lodged at the Mining Registrar's Office at QUILPIE on 27 JUNE 1996 and a certificate of application was issued on 27 JUNE 1996.(252(1) setting the last date for receipt of objections as 25 JULY 1996 (Section 252(2). One Form of objection was lodged pursuant to section 260(1) of the act, setting out a number of grounds. I propose to deal with those grounds at the appropriate stage. The following matters have been taken into account and considered in making my recommendations pursuant to Section 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 applications under Section 232 of the Act. -- 2 of 21 -- 3 I accept, on the material before me, that the land applied for is not within a reserve as defined in the act; that there is no relevant permanent building or relevant feature as defined on the land 238(1). I find that the Applications are therefore not in respect of land over which, pursuant to Section 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 applications, the applicant was the holder of EXPLORATION PERMIT 10756. (S. 232(1). A declaration of posting was lodged on the 29.7.96 (S.252(9). 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). Service of documents was in accordance with Section 399. -- 3 of 21 -- 4 I find that I am satisfied that (a) the provisions of the act have been complied with, (b) there is one objection for consideration, and (c) the consent of any trustee or other person is not required. The hearing was conducted at Cunnamulla on 12 November, 1996. The applicant and the objector both attended the hearing. Both parties gave evidence and the applicant called one (1) witness. As the applicant and objector are the same in both applications and both applications are located close together on the same property, the applications were heard together (by consent). (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 him that the purpose for which the leases are sought is appropriate. The application areas are within an area generally recognised as opal bearing. The applicant is only required to satisfy the Court that -- 4 of 21 -- 5 mineralisation exists. The economic viability of the project is a matter for the applicant's commercial assessment, and not a consideration for this Court. (C) WILL THERE BE AN ACCEPTABLE LEVEL OF DEVELOPMENT AND UTILISATION OF THE RESOURCES WITHIN THE AREA APPLIED FOR? From documentation lodged with the applications, 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 areas of the land in respect of which the mining leases are sought are not an appropriate size and shape. (E) IS THE TERM SOUGHT APPROPRIATE? The term of both leases applied for is ten (10) years. I am satisfied that the terms sought are appropriate and will allow -- 5 of 21 -- 6 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 opal is basically an extractive industry utilising shallow open cuts and does not require complicated plant, processing equipment, or large injections of capital. The applicant has mined opal 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 satisfactory or unsatisfactory. The local Field Officer will be available to -- 6 of 21 -- 7 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. (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 appears that the holder of any other exploration permit or mineral development licence has not 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 in the Field Officer's Report. There is no arable top soil. Rainfall is low. Stock fodder is generally of poor quality and non-existent in drought years. -- 7 of 21 -- 8 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? 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 indicated in the evidence which may be adversely effected by the operation. There is some evidence the disturbed crust retains more of the natural rainfall, thereby encouraging the regeneration of native flora because of seeds that have been dormant for many years. The applicant will be required to backfill where possible as mining progresses, keeping outstanding rehabilitation to a bare minimum where possible. An EMOS has been lodged with the Registrar and accepted. The Field Officer will be able to monitor performance under the EMOS and report any breach of conditions. -- 8 of 21 -- 9 (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. (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. While prices for opal are currently lower than in previous years, there appears to be an upswing in interest from buyers who report they cannot get enough stone to meet their requirements. There is further interest from overseas dealers particularly now that a twice yearly auction is promoted and conducted at Winton by local miners. Therefore, in my opinion, future prospects are looking brighter if enough stone can be produced to meet market requirements in quality and price. -- 9 of 21 -- 10 Subject to what I have to say on other matters, 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 (f) will be attained if the mining leases are 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 with greater resources. (3) the location of the proposed mining operation and the proposed method of mining is unlikely to cause environmental or public interest concerns about safety. (4) 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. (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. 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), subject to what I have to say on other matters. -- 10 of 21 -- 11 (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 Section 279 of the Act. If not filed within three (3) months from the date of this recommendation, the Registrar is bound to refer the matter of compensation to the Court for determination. -- 11 of 21 -- 12 I now turn to the Form of objection. The objection lodged by Mr. VAGG indicates he is objecting on a number of grounds, those being (1) Mining both leases restricts livestock watering and feeding. (2) Lease 60239 is illegal. (3) Access road through first paddock disturbs lambing ewes and will need restrictions. (4) Reduction in carrying capacity. (5) Loss of income. (6) Applicant's employee did not use access road during exploration. (7) Trespass while exploring. The evidence has been taped recorded and it is not my intention to go into the whole of the evidence in detail. However, I shall address those areas of the evidence which I consider to be of most relevance. GROUNDS OF OBJECTION: (1) ML 60239 IS ILLEGAL In relation to the grounds of objection, Mr. Vagg has submitted firstly, that Mining Lease application number 60239 is illegal. His evidence, in summary, is that the open-cuts are watering points and that MLA 60239 is also illegal as the distance from the restricted area to the proposed mine is only 47.7 metres and not the required 50 metres. As Section 268 of the Mineral Resources Act 1989 permits the Warden to inform himself in such manner as he considers appropriate to determine the relative merits of the application, objections and other matters, I indicate that I carried out an inspection of the land, the subject of both applications on 13 November 1996, in company -- 12 of 21 -- 13 with Field Officer Mr. Jack Barnes and my clerk Mr. Max Dahlke. Having inspected the land and upon a consideration of the evidence before me, I am of the opinion that the open-cut referred to, cannot be defined as a watering point. It would seem that taken at its best, the open-cut would never have much water in it, as there is no current means of diversion from which water may run into it. With regard to the question of distance, I measured the distance from the nearest post to the open-cut (that had water in it) with Mr. Jack Barnes, and the distance measured was 56.5 metres, thus making the application, legal. Further, with regard to the lease being illegal, Mr. Vagg also gave evidence, that not only was he dealing with Mr. Brinsmead but also B.J. OPALS PTY.LTD. As this ground is not raised in the Form of Objection, I am precluded under the Act from accepting such evidence, and I therefore reject such evidence. In all the circumstances, I am not satisfied that the landowner has substantiated his ground of objection in relation to the lease being illegal. (2) THE ACCESS ROAD THROUGH FIRST PADDOCK DISTURBS LAMBING EWES AND WILL NEED RESTRICTIONS; The evidence in general does not support this ground of objection. Both Mr. Brinsmead and his wife gave evidence that on the occasions they went through the property, they did not observe any lambs. The evidence also seems to support the fact -- 13 of 21 -- 14 that if there were any lambing ewes in the area, that they may be disturbed for the first three days or so and that after that, they are more a nuisance then anything, by being in the near vicinity of the machinery and workers. I am satisfied, that a consideration of the evidence does not support such ground of objection by Mr. Vagg. (3) REDUCTION IN CARRYING CAPACITY Mr. Vagg has submitted that stock do not run in an area where men and machinery are. I consider that I have already addressed this matter adequately when discussing the access road issue. In the circumstances, the evidence not having supported the ground of objection, I reject such ground raised by the objector. (4) LOSS OF INCOME: Mr. Vagg's evidence would seem to suggest that income was lost from the loss of lambs by virtue of the fact the lambs had been killed due to their mothers being chased away, and abandoning them at birth. Mr. Vagg stated that Mr. Brinsmead went through the lambing paddock when requested not to. In this respect, it is clear from the evidence that the applicant has not been on the property since the 11 August 1996, once the objector had raised lambing objections. In support of Mr. Brinsmead's evidence, was also the evidence of his wife, Ms. Wanda Jones, to -- 14 of 21 -- 15 the effect that they never saw any ewes or lambs as they drove through the paddock, except for lambs with long tails. Also, she stated that they could never get close enough to them to take a picture. She went on to say that she had not seen any lambs on the track or anywhere around the track or along the fenceline. Exhibit 13 which refers to damages from loss of lambs killed, does not assist me in the determination of this matter, as there is no evidence to support the assertion that such losses are as a result of the Applicant's mining activities. Upon a consideration of the evidence, I am not satisfied that Mr. Vagg has substantiated this ground of objection. (5) APPLICANT'S EMPLOYEE DID NOT USE ACCESS ROAD DURING EXPLORATION. The evidence of the objector, was that Ellis, an employee of Brinsmead, illegally entered through an electricity gate on a power line. Mr. Vagg stated that Ellis had ridden his motor cycle outside the EP. Against this, is the evidence of Mr.Brinsmead who said that Ellis followed them in on his motor bike on the access road. Ms. Wanda Jones, also gave evidence that Lee Ellis followed them in on his motor bike and that they went down to where their EP was, and that he followed them completely out the same track, and he went on his way. Apparently, the second time was when he walked in on the track and that was where they met him and they -- 15 of 21 -- 16 brought him down. Under cross-examination, she responded that she was not sure how far he walked. Weighing up the evidence, the objector has also not satisfied me that this ground of objection has been proven. That being the case, I reject this ground of objection as well. (6) TRESPASS WHILE EXPLORING. Mr. Brinsmead's evidence as to the objection relating to TRESPASS was that the objector told him he could have water from the station bore. Mr. Vagg had showed him the beginning of a track and when he came to the track there was a fence across it, or rather what is called jump-up gates. He took a right turn and followed another track for about two (2) miles until he could see he was not coming to the station, and he turned round and came back and gave up the idea of using it. A letter which was addressed to the Mining Registrar at Quilpie from Brinsmead stating that the objection as to trespass was withdrawn, was admitted as an exhibit.In his evidence, Vagg disagreed that he had dropped such ground of objection. On this point, there is a diary note made by Brinsmead that the objection was to be dropped by Vagg, and this is contained in exhibit sixteen (16). On the evidence as a whole, I am not satisfied that this ground has been supported, in any way, by Mr. Vagg and accordingly, I reject same. -- 16 of 21 -- 17 (7) MINING BOTH LEASES RESTRICT LIVE STOCK WATERING AND FEEDING The evidence revealed that livestock are not affected by mining operations particularly after the first three days or so. The applicant stated in evidence that after a while, sheep quite often become a nuisance being close to mining operations. In relation to water, apparently there is another dam in the paddock which is supplied by a bore drain. As far as this aspect is concerned, I am of the opinion that this ground of objection is of no substance and accordingly, I reject such ground as well. 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(6). APPENDICES: The following documents are appended: -- 17 of 21 -- 18 * Applications x 2 * Certificate of application x 2 * Statutuory Declaration x 2 * Questionnaire x 2 * Form of Objection x 2 * letter from A.E. White * letter from R. Brinsmead * Assessment from Australian Securities Commission * letter from J.C. Vagg dated 16.12.92 * letter from D.M.E. dated 24.4.95 * letter from D.M.E. dated 8.9.94 * list of documents tendered by J.C. Vagg * letter to Mining Registrar, Emerald from J.C. Vagg * Photographs x 4 * List of documents tendered by R. Brinsmead * Copy of diary notes of R. Brinsmead * Copy of Transcript RECOMMENDATION: Having considered the evidence and having rejected all grounds of objection, and upon a consideration of all the matters set forth in section 269(4) of the act, I recommend to the Minister that mining leases be granted over both application areas for a -- 18 of 21 -- 19 term of ten years,(S.270(2), subject to compensation being settled or determined by this Court. Dated at Brisbane this 10 day of December 1996. A.J. Chilcott A/MINING WARDEN. -- 19 of 21 -- 20 SUMMARY SHEET NUMBER 60238 & 60239 DISTRICT QUILPIE WARDEN A.J. CHILCOTT APPLICANT REGINALD HENRY BRINSMEAD OBJECTOR JOHN COLIN VAGG AREA 2.932 ha & 0.8352 ha RESOURCE OPAL TERM 10 years for both COMPENSATION OUTSTANDING RECOMMENDATION GRANT DATE 10.12.96 TRANSMITTED POST SECTION 269 MRA -- 20 of 21 -- 21 CATCHWORDS WATERING POINT -- 21 of 21 --