Brockett, Re [1995] QMW 91

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 50095 IN THE BRISBANE MINING DISTRICT. BEFORE: F.W. WINDRIDGE, WARDEN. APPLICANT: JOHN BROCKETT. 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 QUARTZ and SANDSTONE and ASSOCIATED PURPOSES is for an area of 39.9298 hectares situated on Sub. 1 of Por 210 (being Lot 1 on RP32723) County of CHURCHILL, Parish of TENTHILL, and Sub 1 of Por. 156 (being Lot 1 on RP32694) County of CHURCHILL, Parish of TENTHILL, ten kilometres south of Gatton. 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(5). The Application was lodged at the Mining Registrars Office at [1995] QMW 91 -- 1 of 13 -- BRISBANE on 29 AUGUST 1994, and a certificate of application was issued on 29 AUGUST 1994, (S.252(1), setting the last date for receipt of objections as 26 SEPTEMBER 1994. (S.252(2). No objections were lodged pursuant to Section 260(1) of the Act. 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, and is thus entitled to make the application under Section 232 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 defined on the land ( S.238(1). I find the application is 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 making the application, the applicant was the holder of PROSPECTING PERMIT 50358 (S.232(1). A declaration of posting was lodged on the 29 SEPTEMBER 1994 (S.252(9). -- 2 of 13 -- 3 Save for one question in relation to the Certificate of Application, 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. The hearing was held at Brisbane Wardens Court on 21 July 1995. (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 as stated on the application and the Certificate of Application are minerals as defined in section 1.8 of the act. However, at the commencement of the hearing, the applicant made it clear that he was abandoning those minerals as stated and was only interested in gold which he claimed was located on the property. I accept the Applicants advice and I am satisfied on the detailed -- 3 of 13 -- 4 information given by them that the purpose for which the lease is sought is appropriate. However, the applicant could only refer to anecdotal evidence in relation to the presence of gold and his own testing. His own testing had been done by means of a divining wire and some string attached to a piece of wood. Apart from a hole which the applicant dug for testing purposes, there was no other indication of mineralisation. (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 not satisfied the applicant has sufficient resources to develop the land to an acceptable level. The applicant appears to have some cash and real estate property that could provide financial resources. However his intent is to engage some person as a partner and this partner would have to provide all the machinery. I am not satisfied that there is at this stage any capacity to demonstrate an acceptable level of development. (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 lease application area covers land that is owned by the applicant, -- 4 of 13 -- 5 but he has not demonstrated in a clear way where the alluvial deposits are located. (E)IS THE TERM SOUGHT APPROPRIATE? The term of lease applied for is 21 years. I am not satisfied that the term sought is appropriate, given the lack of knowledge of the deposit and rate of extraction. (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 Applicant has some financial capability to commence operations if he commits all his cash and real estate resources. However, the applicant has no previous experience in mining, and therefore I consider that he lacks the expertise to complete the proposed mining operation under the proposed lease. (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 -- 5 of 13 -- 6 unsatisfactory. The applicant has had no previous experience with alluvial gold mining. (H)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, as described by the applicant would possibly cause some significant disturbance to stock or stock watering or management facilities. However, the applicant is the owner of the land which is the subject of the application. 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 dams can be with the consent of the landowner, left as watering points for stock or native fauna, or decommissioned in the approved way. However, the draft EMOS that was lodged and accepted by the Registrar was in relation to sandstone mining by open cut methods. Now that the applicant has abandoned Sandstone as the proposed purpose, the -- 6 of 13 -- 7 draft EMOS becomes irrelevant. The application therefore becomes deficient in that regard. (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. When all other aspects of the application and the matters referred to in Section 269 are taken into account and considered, I am satisfied that the objects of section 2 (a), (b), (c), (d), (e) and -- 7 of 13 -- 8 (g) will not be attained if a mining lease is granted for the term recommended, for the following reasons: (1)the applicant has no previous experience as a miner. (2)there is no reliable evidence of mineralisation. (3)the draft EMOS is not relevant. (4) the rate of extraction is not known. (5) the applicant appears to have insufficient experience in the industry to accurately assess the potential of the project and bring the project to fruition. 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)(d) 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 freehold grant 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) -- 8 of 13 -- 9 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 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 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 -- 9 of 13 -- 10 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.7.36). I note that a compensation agreement has not been filed with the Registrar in accordance with section 7.36(2 of the act. In this instance the applicant is the owner of the land. 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). As this was an uncontested application and as no legal representative appeared, no costs are awarded. APPENDICES: The following documents are appended: * Copy of declaration dated 29 September 1994. * Questionnaire completed on 22 October 1994. -- 10 of 13 -- 11 * Copy of COA and Application. * Copy of Field Officers Report. * Copy of Transcript. RECOMMENDATION: Upon consideration of all the matters set forth in section 269 of the act, I recommend to the Minister that the mining lease application be refused on the following grounds: 1. The applicant abandoned his stated intention of mining for quartz and sandstone, and therefore the COA issued by the Registrar may well be invalid. No person has had any opportunity to object to the new purpose of the lease namely gold mining. 2. The applicant has no previous experience as a mining and does not appear to hold any other relevant qualifications. 3. There is insufficient evidence of mineralisation. 4. The applicant has not demonstrated any capacity to develop the proposed lease to an acceptable level. -- 11 of 13 -- 12 Dated at BRISBANE this 26th. day of July 1995. F.W. WINDRIDGE MINING WARDEN. SUMMARY SHEET NUMBER 50095 50095MLA.BNE DISTRICT BRISBANE WARDEN F W WINDRIDGE APPLICANT JOHN BROCKETT OBJECTOR NIL AREA 39.9298 ha RESOURCE GOLD TERM 21 years COMPENSATION NOT REQUIRED. -- 12 of 13 -- 13 RECOMMENDATION REFUSAL DATE 26 JULY 1995. TRANSMITTED DELIVERED. FWW. SECTION 269 MRA. CATCHWORDS Mineralisation, experience, resources, COA invalid. -- 13 of 13 --