Brown, Re [1996] QMW 28

- ·- ---- -- --- -- --- --- --- --- ----------------- --- --- •; REPORT AND RECOMMENDATION OF WARDEN PURSUANT TO SECTION 269 AND 270 OF THE MINERAL RESOURCES ACT, 1989. IN THE MATTER OF: APPLICATION FOR MI NING LEASE NUMBER 701 38 IN THE EMERALD MINING DISTRICT. BEFORE; F.W . WINDRIDGE, WARDEN. APPLICANT: GREGORY JOHN BROWN. REPORT : This Application for a mining lease under section 232 of Part 7 of the Mi ner al Resource s Act 1989 (the act) for the purpose of mining for GOLD, SAPPHIRE and ZIRCON is for an area of 3 . 063 hectares situated on vacant crown land being LOT 602 on CLM 166, in the Rubyvale area. 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 gra nt of a lease does not [1996] QMW 28 -- 1 of 15 -- --------- -- -- ----- 2 cre at e any estate or in t erest in t h e land (s . lO) , a l though th er e is th e powe r to determine title to land (s .363 }. The Ap plica t io n was lodged at the Min i ng Registrars Office at EMERALD on ll DECEMBE R 199 5, and a certi fi c at e of a pplic a tion was i s su ed on 9 FEBRUARY 1996, (s.252(l), setting the last date for receipt of objections as 8 MARCH 1996 (S.2 5 2(2) . No ob j ec ti o ns we re lo d ge d p u rsuan t to Section 26 0 of the Act. The fo l l ow ing matters have been taken into ac count and consider e d in making my re commendat io ns pu rs ua n t to S ec ti on 269. (A) HAVE THE PROVISIONS OF THE ACT BEEN COMPLIED WITH? The material indicates that the App l i cant is an eligible person as de f ine d in Section 5 , and is thus entitled to make the application under Sectio n 233 of the Act. I a cc ep t , on the ma t e r ial before me, that the land applied for is not within a reserve as defined in t he act, a nd th a t there is no relevant p erman ent build i ng or r el ev a nt f e at ure a s mentioned in section 2 38(2) on the land. -- 2 of 15 -- ·-------------------------- 3 I f ind the appl icati on is therefore not i n r espe c t of land over which, pursuant to Secti on 2 38 of the act, a mining lease shall not be granted without t he conse n t of a n other person or p e r so n s. At t h e time of marking out a nd making the applicati on, the applicant was the holder of PROSPECTING PERMIT 70 6 77 ( S. 232). A declaration of posting wa s lodg e d on t he 14 MARCH 1996. (s . 25 2 ( 9) . I n ord e r to chec k if the application area has been marked out p rope r ly (in accordanc e with the Act), Reg i s tra r s ha v e the d i sc r etion t o ask t he Fi eld Officer to check if marking out compli e s with the requir ement s of the Ac t. I n fact, in my opin i on , an inspec t ion o f e very appl i cation area should be comple ted before the date for the r e ce i p t of ob j e ctions c lose s . If for s o me r e as on the inspection cannot be done within that time, ie bad road cond i ti on s or i n c le me nt weather then the i nspe ct i on shoul d be compl eted as soon as possible. -- 3 of 15 -- -- -- -- - ------ 4 In this i nstance the Fi e ld office r re po rts that not one past ha s any markings, and one post is mi ss i n g. Sec t ion 2 41 ( l ) s ta t es that there shall b e a p os t at e very corner, a n d section 241(5) s t at e s that each post shal l be durably ma rked with certain informa t ion . I a m n o t s a tisfied, on t he mat e r ial, in c lu ding the u nc on t es t e d informatio n i n the applic a tion f orm a n d the declar ati on o f po s ting and advertising that a ll the provisions o f t he a c t (o ther than the provi si o ns requiring th e hearing) have been c ompl i ed wi th or subs t anti a lly comp li e d with (s . 39 2 ). The f ailure to mark out p roperly may affect some other p ersons r i ghts t o a pply f or the a pplic a t i on a r ea , and the compl ete absence of any mark ings , t o gether with one missing post, i n dicates t hat the d ec l ar ation of po sting i s i nc or r e ct . Se ction 252(7) requ ires the app l icant to post a copy of the COA on the d atum post. h a s not ha ppened. The Fi el d Off i ce r s report ind i ca t e s this Serv i c e of do cument s was in ac cordanc e with section 399 . -- 4 of 15 -- ------ -- --··------------------------- 5 I f i nd that I am satisfied tha t (a) t he p r o vi si o ns o f t he ac t have no t b e en comp li e d wi th ; (b ) th e re i s no va l id ob je ct io n ; a nd ( c ) t he co n se nt of any t ru s te e or o t he r p er son i s not r e qu ir ed . I therefore dispense with the hearing under the provisions of section 270 of the act. (B) I S THE LAND AP PL IED FOR MI NERAL IS ED OR IS THE OTHER PURPO SE FOR WHI CH TH E LEAS E I S SOUGHT AP PRO PRIATE? I am s atisfied that the resources sought are min e rals a s defined in section 5 of the act. I a ccep t t he App li can ts advi c e a nd I am s at is f ied on t he de ta ile d in for ma t ion gi v en by them that the purpose for which t he lease i s s ought i s appropr i ate. The area is well known as a producer of fine sapphires and zircons. The economic viability of the project is a matter fo r the applicants commercial assessment , and not a matter for t h is Court. -- 5 of 15 -- 6 (C) IF THE LAND APPLIED FOR IS MINERAL ISED WI LL THERE BE AN ACCEPTABLE LEVEL OF DEVE LOPMENT AND UT I LI S AT ION OF THE MINERAL RE SOURCES WITHI N THE AREA APPLI ED F OR? I am satisfied the a ppli c an t ha s su f fi c i en t r es ources to dev el op the l and to an acceptable l e vel . (D) I S THE AREA SOUGHT AN AP PROPRIATE SIZE AND SHAPE? There i s n o th i ng i n t h e i n forma t ion s up p li e d b y the Applic a nt to s ugg es t t hat the surface area of the land in re s pe c t of which the mining le a se is s o ught is n ot an appropriate size anld s hap e. (E) I S THE TERM SOUGHT APPROPR I AT E? The term of le a se ap pl i ed f or i s FIVE y e ar s . I am satis f ied that t h e t e rm so u ght i s a pp ropr i at e and wi l l a l low for mining a n d rehabilitation t o be completed . The app l ic a nt h a s the option of re n e wal un de r s e ct i on 2 86 of the act if mining is not compl e ted , or surr e n de r at an earlier date under section 309 if mining and r eha bi l i tati on i s compl e t ed p r io r to t h e expiry date. -- 6 of 15 -- - - - - -- -- ----~---------------------------- 7 (F) HAS THE APPLICANT THE NECE SSARY FINANCIAL AND TECHN ICAL CAPABILI TI ES TO CARRY ON MIN I NG OPERATI ONS UNDER THE PROPOSED MINING LEASE? I h ave no re a son no t t o accept the Applicants advice and I am satisfied tha t the Appli c a nt s have th e necessary fi n a nc i al cap ab i li t y and t ha t th ey have sufficient technical exp er t is e to prop erly carry on the proposed min i ng op e ration un de r t he p r o po s ed l ea s e . The a pp l ic a nt i s cu r rently eng ag e d in min i ng on o ther lea s e s i n th i s area, and in my opini on ha s the expe r ienc e n e ce s s ary to c omplete the mi ni n g operation (Car r V S imnove c (1 98 0 ) 26 SASR 2 6 3 at 2 68, a n d Pa cminex V Aus t. Nephrite Jade Mi ne s (1 974) 7 SASR 401 a t 4 15 . ) (G ) HAS THE PAS T PERF ORMANCE OF THE APPLI CANT BEEN SATI SFACTORY? Ther e is no ma te ria l befor e me to sugge st th a t t h e p as t pe r forma n ce o f t he App l ic a nt ha s be e n s a tisf ac t ory or un sa t i sf a ct ory. The l o ca l Fi e ld Off i cer will be available to monitor performance an d rehab il i ta t i o n. The In sp e ct or at e s h ou ld monitor the me t ho d s a do pted fo r mi ni ng , e n s ur i ng that -- 7 of 15 -- 8 indu stry standards are maintained and all machinery is ope ra te d in a safe and competent manner by licens e d persons where necessary. (H) IS THERE ANY DISADVANTAGE TO THE HOLDER OF OR APPLICANT FOR EX PLORATION PERMITS OR MI NERAL DEVELOPMENT LICENCES. The re is no ev iden c e th at t he ho lde r of or appl i cant fo r any oth er exploration t enure or MD L ha s been disadvanta ge d by this ap pli ca ti on . (I) WILL THE •OPERATIONS TO BE CARRIED ON UNDE R THE P RO PO SED MINING LEASE CONFORM WITH SOUND LAND US E MAN"AGEMENT? The land appears to be used for low int en sity g ra z ing and i t seems the proposed mining o peration will cau s e no si gn ificant disturbance facilities. to stock or stock wat e ring o r management Information has been supplied as to the Applicants site manag emen t proposals. The ev i dence l eav e s me with no reason to b el ie ve that the prop osed min i ng operations do not con f orm with sound lan d us e management. -- 8 of 15 -- -------- - -------------------------------- 9 (I) 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 deleterious effect on any river system. Chemicals wi l l 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. A draft EMOS has been lodged and accepted by the Registrar. (J) 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. -- 9 of 15 -- -- --- - ·-------------- 10 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 be amended to allow for site protection or avoidance strategies. (K) EAS Al"\JY 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: (l) 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. -- 10 of 15 -- --- ------------------------------- 11 (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. In my view, apart from the failures in marking out, no good reason has been shown for a refusal to grant the lease application (Carr V Simnovec, Pacminex V Aust. Nephrite Jade Mines.) However, the failures in marking out constitute a good reson for refusal. (L) IS THE PROPOSED MINING LEASE OPERATION AN APPROPRIATE LAL"\JD USE, TAKING INTO CONSIDERATION THE CURRENT AND PROSPECTIVE USES OF THE LAND? The material indicates that the land is currently used for mining 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. -- 11 of 15 -- - -------- l 2 In my view, there a ppe ar s to b e no ris k o f s i gni f ic an t conf l ict betwee n th e curre nt l and u se, or any pr ospec ti ve l and use , a nd the propo sed mining o perati on. The prop o sed mining oper atio n appear s , on the e viden ce, an appr op riate l and u se , ta ki ng in to accoun t the c ur re n t and pros pe ctiv e uses o f the l a nd. A c ompensat i on ag ree ment is no t requ ire d as the le as e area is situated in vac ant crown land. Thi s recommendation is based on an as s ess me nt of t he info rmation supp l ie d. Sho uld the re be any di s p ut e over da mage or l os s, or s houl d th e min er de pa rt f rom his plan o f opera ti ons or EMO S and caus e lo ss or damage or int e rr upt ion to the man agement of any prope rty not envisa ged or not fo rese en, a ny aggrieved party may apply to t he Court for a d et ermina tion or award o f co mp ensat ion and if ne ces sary, i njuncti ve re lief un der the powers cont ai ne d in Se cti on 3 63. AP PENDI CE S : The fol lowi ng d oc umen ts a re appe nd ed: * Copy of de clarati on d ate d 14 Ma rch 199 6 . -- 12 of 15 -- 13 * Questionnaire completed on 14 March 1996 . * Field Officers report. * Copy of COA and APPLICATION. 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 NOT granted for the following reasons based on the field officers report. 1 . a post has not been inserted in every corner (s.241) (1) 2. there are no durable markings on the remaining posts (s241 (5). 3. a copy of the COA has not been affixed to the datum post (252 (7) ( a ). 4. the declaration of posting and advertising would appea r to be incorrect in the circumstances. -- 13 of 15 -- 1 4 The ref ore the provisions of the act have not been complied with, and th e f ai lur es are fat al to t he appl ic ati on as the r e is n o subs tan ti al complianc e. Dated at BRIS BANE th is 25th day of March 199 6. F .W. WINDRIDGE MINING WARDEN. SUMMARY SHEET NUMBER 70138 70138MLA.EME Dl.MDl .3/ 96 DISTRICT EMERALD WARDEN F W WINDRIDGE APPLICANT GREGORY JOHN BROWN -- 14 of 15 -- 15 OBJECTOR NIL AREA 3.063 ha RESOURCE GOLD, SAPPHIRE, ZIRCON. TERM FIVE years COMPENSATION NOT REQUIRED. RECOMMENDATION REFUSAL. DATE 25 MARCH 1996. TRANSMITTED 25 MARCH 1996. 4 . 00PM IM. SECTION 269, 270 , 241, 252 (7). CAT CHWORDS MARKING OUT. FAILURE TO PLACE POST EVERY CORNER. FAILURE TO ENDURABLY MARK . FAILURE TO POST COA ON DATUM . NO SUBSTANTIAL COMP. -- 15 of 15 --