Ernest Henry Mining Pty Ltd, Re [1995] QMW 148

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 90075 IN THE MOUNT ISA MINING DISTRICT. BEFORE: F.W. WINDRIDGE, WARDEN. APPLICANT: ERNEST HENRY MINING 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 CONSTRUCTION and MAINTENANCE PLANT, and INFRASTRUCTURE FOR MINING OPERATIONS, is for an area of 221.378 hectares situated on Fort Constantine Holding PH 13/80 being the land described within Certificate of Title Volume 7665, Folio 2, more particularly described as Lot 80 on Plan PH 831 in the Cloncurry District. 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 (s.363). Application in respect of MLA90075 was lodged at the Mining Registrars Office at MOUNT ISA on 16 AUGUST 1995 and a certificate [1995] QMW 148 -- 1 of 14 -- 2 of application was issued on 16 AUGUST 1995 (s.252(1), setting the last date for receipt of objections as 13 SEPTEMBER 1995 (S.252(2). A number of objections were lodged, some pursuant to Section 260 of the Act, and some not in accordance with the Act. However, all objections were withdrawn after compulsory conferences conducted by the Registrar at Mount Isa on 6th September 1995 under Section 254 of the act. The hearing was conducted at Mount Isa on 25 September 1995. The applicant appeared. No objectors appeared. A concurrent application was dealt with at the same hearing. 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 14 -- 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 90308 (S.232). The consent of the holder of EPM 8648 has been lodged. A declaration of posting was lodged on the 11 SEPTEMBER 1995 (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. 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. (B) IS THE LAND APPLIED FOR MINERALISED OR IS THE OTHER PURPOSE FOR WHICH THE LEASE IS SOUGHT APPROPRIATE? -- 3 of 14 -- 4 I am satisfied that the resources sought on ML90041 and ML2671 are minerals as defined under the Act, and the purposes for which this lease is sought are purposes associated with the winning of that ore. 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 infrastructure requirements are necessary for the mining of the minerals on adjoining leases already granted to the applicant. The economic viability of the project is a matter for the applicants commercial assessment, and not a matter for this Court. (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? 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 various leases ins this immediate area will all be combined as one -- 4 of 14 -- 5 operation. (E) IS THE TERM SOUGHT APPROPRIATE? The term of lease applied for is 30 years. I am satisfied that the term sought is appropriate and will allow for mining and rehabilitation to be completed. The term of the adjoining principal mineral lease is 21 years. However, there exists the possibility that further mineralised zones on the adjoining leases will be discovered and be economically mined in the future. 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 parent company of the applicant is currently engaged in mining on other leases in this area, 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 -- 5 of 14 -- 6 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. (H) IS THERE ANY DISADVANTAGE TO THE HOLDER OF OR APPLICANT FOR EXPLORATION PERMITS OR MINERAL DEVELOPMENT LICENCES. The applicant held the pre-requisite exploration tenure at the time of marking out. The holder of EPM 8648 has given written consent to the application. It does not appear that the holder of or applicant for any other exploration tenure or MDL has been disadvantaged. No objection was lodged by any person on this ground. (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 -- 6 of 14 -- 7 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 deleterious effect on any river system. An Impact Assessment Study into the whole project has been completed. 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. (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. -- 7 of 14 -- 8 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. (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 large scale operation is planned. (2) it is unlikely that the land applied for is of any interest to a small 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 -- 8 of 14 -- 9 the industry to accurately assess the potential of the project. (6) there is a market for the product and the project will provide employment and export income for Australia. To my knowledge there has been no gazettal of the land as claimable land under Section 2.12 of the Aboriginal Land Act 1991. No person claiming any right or interest under "native title" has lodged any objection under Section 260 of the Act. It appears it would not be possible to notify such a person in the normal way of service of a notice. The name of such a person claiming title would be unknown as there is no list or roll of such persons. However, such a person is not put to any disadvantage as the requirement of publication of the application under Section 252(7) is intended to notify any person who does not fall within the definition of "owner" as defined in Section 5 of the Act. The application area is situated within a pastoral lease granted over the area by the State of Queensland. It would appear that this grant has extinguished any "native title" that existed and there would appear to be no grounds for any claim of "native title" by any person ( MABO v Queensland (1992) 66 ALJR 408). The extinguishment of native title, having been validated as a category A past act, the subsequent grant of a mining lease will not be subject to the native title legislative scheme for future acts, nor will the lessee of a mining lease be liable to pay compensation for the extinguishment of native title. (S.8,9, & 10 - Native Title (Queensland) Act 1993.) No objection was lodged on native title grounds. -- 9 of 14 -- 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 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 -- 10 of 14 -- 11 Registrar is bound to refer the matter of compensation to the Wardens Court for determination. I understand from the submission of Mr. Fraser QC that negotiations have been held and an agreement will shortly be finalised and lodged with the Registrar. 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. -- 11 of 14 -- 12 APPENDICES: The following documents are appended: * Copy of declaration dated 19 SEPTEMBER 1995. * Questionnaire completed on 18 September 1995. * Copy of COA and Application. * Copy of transcript. RECOMMENDATION: Having conducted 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 30 years, (s.269(4) subject to compensation being settled or determined by the Court. Dated at MOUNT ISA this 25th. day of September 1995. F.W. WINDRIDGE MINING WARDEN. -- 12 of 14 -- 13 SUMMARY SHEET NUMBER 90072 90072MLA.ISA D1/MD2. 9/95 DISTRICT MOUNT ISA. WARDEN F W WINDRIDGE APPLICANT ERNEST HENRY MINING PTY LTD. OBJECTOR NIL AREA 382.16 ha RESOURCE CONSTRUCTION AND MAINTENANCE PLANT INFRASTRUCTURE FACILITIES. TERM 30 years COMPENSATION OUTSTANDING RECOMMENDATION GRANT DATE 25 SEPTEMBER 1995. TRANSMITTED DELIVERED. SECTION 269 AND 270 MRA. 8,9,10 N.T.(Q) A CATCHWORDS pastoral lease. native title. extinguishment. category A past act. -- 13 of 14 -- 14 compensation -- 14 of 14 --