BHP Australia Coal Pty Ltd & Ors, Re [1995] QMW 128

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 70116 IN THE EMERALD MINING DISTRICT. BEFORE: F.W. WINDRIDGE, WARDEN. APPLICANT: BHP AUSTRALIA COAL PTY LTD AND ORS. 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 COAL is for an area of 754 hectares situated on LOT 2 on RP848589, County of GROSVENOR, Parish of ILSINGTON, LOT 2 on GV165, GHPL 30/3951, County GROSVENOR, Parish of STALBRIDGE, and Railway Reserve, Parishes sof Stalbridge and Ilsington, County of Grosvenor, 30 kilometres east of Moranbah. 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). The Application was lodged at the Mining Registrars Office at [1995] QMW 128 -- 1 of 13 -- EMERALD on 12 MAY 1995, and a certificate of application was issued on 12 MAY 1995 (s.252(1), setting the last date for receipt of objections as 7 JULY 1995 (S.252(2). No objections were lodged pursuant to Section 260 of the Act. 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 Principal Applicant and partners 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. 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 EXPLORATION PERMIT 575 (S.232), and PROSPECTING PERMIT 70537. A declaration of posting was lodged on the 13 JULY 1995 (s.252(9). -- 2 of 13 -- 3 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. I therefore dispense with the hearing under the provisions of section 270 of the act. (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 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. The area is required for infrastructure needs and covers a coal reserve abutting an already existing lease. The economic viability of the project is a matter for the applicants -- 3 of 13 -- 4 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. (E)IS THE TERM SOUGHT APPROPRIATE? The applicant desires that the lease expire on 31 October 2010 to coincide with the expiry of the lease which abuts this application area. These leases will be worked in conjunction with each other. 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. -- 4 of 13 -- 5 (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 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 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. -- 5 of 13 -- 6 The applicant held the pre-requisite exploration tenure at the time of marking out. There is no evidence that the holder of or applicant for any other tenure or MDL has been disadvantaged. The holder of any such tenure did not lodge any objection to the application. (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. Mining will be conducted in accordance with an approved plan of operations. (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 will not be used in the separation process. At the completion of the project, any tailings -- 6 of 13 -- 7 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. The applicant has accepted special conditions. A P.E.A. has been conducted by the Regional Environmental Officer. (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. 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)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. -- 7 of 13 -- 8 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 another 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. 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 -- 8 of 13 -- 9 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 and a railway reserve 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) Even assuming that "native title" was not extinguished by prior grant and was able to co-exist with the mining title, and a person was able to substantiate his status as "an owner", any claim for compensation would be restricted under Section 281 of the Act and in all probability, subject to the evidence admitted, a minimal or nominal award would be the final result. 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.) (L)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 -- 9 of 13 -- 10 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 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. -- 10 of 13 -- 11 APPENDICES: The following documents are appended: * Copy of declaration dated 11 July 1995. * Submission dated 25 July 1995. * Copy of Final Environmental Assessment Report. * Copy of 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 granted over the whole of the application area for a term to expire on 31 October 2010 (s.269(4). Dated at BRISBANE this 5th. day of September 1995. F.W. WINDRIDGE MINING WARDEN. -- 11 of 13 -- 12 SUMMARY SHEET NUMBER 70116 70116MLA.EME D1.MD2. 9/95 DISTRICT EMERALD WARDEN F W WINDRIDGE APPLICANT BHP AUSTRALIA COAL PTY LTD. AND OTHERS OBJECTOR NIL AREA 754 ha RESOURCE COAL TERM to expire on 31.10.2010 COMPENSATION OUTSTANDING -- 12 of 13 -- 13 RECOMMENDATION GRANT DATE 5 SEPTEMBER 1995. TRANSMITTED 5 SEPTEMBER 1995. 3.00 pm FWW SECTION 269 and 270 MRA. CATCHWORDS -- 13 of 13 --