CRA Exploration Pty Ltd & Anor v Walden & Ors [1995] QMW 41

- - ) IN THE WARDENS COURT , AT BRISBANE IN THE STATE OF QUEENSLAND BETWEEN: AND: MLA NOS 90045 AND 90058 CRA EXPLORATION PTY LTD AND CENTURY ZINC LIMITED Applicants CLARENCE WALDEN AND CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION First Objectors REGINALD CARLTON AND CARPENTARIA LAND COUNCIL ABORIGINAL CORPORATION Second Objectors Rulings are required with respect to the following:- (a) an application by the applicant miners to strike out paragraph l(b) of the facts and circumstances in support of ground 1 of the Form of Objection lodged by the First Objectors and paragraph l(b)of the facts and circumstances in support of ground 1 of the Form of Objection lodged by the Second Objectors. II ; ' [1995] QMW 41 -- 1 of 22 -- / ~, 2 (b) an application by the applicant miners for further and better particulars in support of the Form of Objection by the said objectors to Mining Lease Application 90045 and Mining Lease Application 90058. Application to Strike Out This is an application by the applicants to strike out paragraph 1 (b) of the facts and circumstances in support of grounds of objection 1 in the Form of Objection by Reginald Carlton and Carpentaria Land Council Aboriginal Corporation ( "CLC") dated 27th of January 1994. There is a further application to strike out paragraph 1 (b) of the facts and circumstances in support of ground of objection 1 in the Form of Objection of Clarence Walden and CLC dated 18 July 1994. The objection dated 27 January 1994 relates to Mining Lease Application 90045. The objection dated 18 July 1994 relates to Mining Lease Application 90058. Both objections are identical and read as follows- "1. In considering in accordance with Section 7. 26 ( 3) (i) and\or (j) whether and to the extent to which any adverse environmental effects will result from the Century Mining Operations, the Mining Warden should recommend that the application be rejected." -- 2 of 22 -- 3 The relevant facts and circumstances in support of this ground ·- are as follows- "(b) The operations to be carried on for the purpose of disposing of the mineral or minerals extracted from the area the subject of the application will potentially cause serious adverse effects to the marine environment of the Gulf of Carpentaria . including: disturbance of seagrass beds from dredging and increased shipping activity causing interference with the life cycles of species dependent upon the seagrass beds; • the potential flooding of evaporation ponds and release of contaminants into mangrove and estuarine environments; disturbance of seagrass beds from dredging and increased shipping activity causing interference with the life cycles of species dependent upon the seagrass beds; -- 3 of 22 -- \ / 7.26 ( 3) 4 the potential flooding of evaporation ponds and release of contaminants into mangrove and estuarine environments; the potential accidental concentrates during barge procedures; spillage loading of or mineral transport the potential accidental spillage of oil from ships used to transport the mineral/s with severe impacts on marine wildlife. of the Mineral Resource Act 1989 (Qld) ("Act") relevantly provides - "The Warden, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part shall take into account and consider whether - (h) .... the operations to be carried on under the authority of the proposed mining lease will conform with sound land use and management -- 4 of 22 -- ( i) .... ( j ) .... ( k} .... 5 there will be any adverse environmental effects caused by those operations and, if so, the extent thereof; the public right and interest will be prejudiced; any good reason has been shown for a refusal to grant the mining lease" The submissions of Mr Fraser QC for the applicant miners can be summarised as follows- 1. The is a disconformity between ground 1 and the facts and circumstances in support thereof. 2. The "public right and interest" referred to (j) must be seen in context of the "operations" referred to (h} and (i) referred to above. Further, subparagraphs (d) and (f) also give some dimension or scope •to the "public right and interest" referred to in (j). 3. The facts and circumstances relied upon with in subparagraph (b) have no connection the "operations" carried on under the authority of the proposed mining lease. Hence, there was no "adverse environmental effect" and neither was there any "public right and interest" to be prejudiced. -- 5 of 22 -- 6 The argument by Mr Plunkett for the first and second objectors can be ·· summarised as follows- 1. The "operations" referred to in subparagraphs (h) and (i) need to be considered in totality. 2. The "public right and interest" referred to in (j) were not restricted by any reference to "land" or "operations" referred to in section 7 .26 (3). The concept of "public interest" was very wide. (Sinclair v Maryborough Mining Warden (1975) 49 ALJR page 166.) 3. The applicant for a mining lease is required to satisfy the Warden with respect to those matters raised in section 7. 2 6 ( 3) of the Mineral Resources Act 1989 (Qld). 4. Just as in planning cases, it is both logical and legally correct to have regard to impacts beyond the boundaries of the subject land. Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR page 485; Re Eddowes [1991] 2QdR page 381 and Grasso v Mulgrave Shire Council [1993] QPLR page 86. As a consequence, the Warden needs to have regard to the -- 6 of 22 -- 7 "big picture" in looking beyond the lease area to assess the likely impacts in the Gulf of Carpentaria. The arguments of Mr Plunkett were contained in written submissions. I shall not repeat each of those submissions but the essence of them is referred to above. Some background material to this application is necessary. The Century Project consists of a proposed zinc, lead and silver mine located 250 kilometres North-North-West of Mount Isa in North Western Queensland. The ore will be processed into concentrate which will be transported through a 300 kilometre long slurry pipeline to Karumba on the coast of the Gulf of Carpentaria. From there, the concentrate will be loaded onto barges for off shore transfer to export ships. The area of the mine is covered by Mining Lease Application 90045 and is for 14,691 hectares. Mine processing and support infrastructure is covered by Mining Lease Application 90058 - an area of 8,494 hectares. The pipeline referred to above will be an underground pipeline. It is not clear to me the basis upon which land will be secured for the purposes of laying that pipeline. However, it is possible that the provisions of section 7. 69 of the Act may be utilised. The material part of this section provides - -- 7 of 22 -- 8 "(1) Notwithstanding the provisions of section 7.1, a mining lease may be granted to a person who is the holder of a current mining lease authorising the carrying of anything or substance through, over or under land not comprised in the current mining lease by means of a pipeline, aerial ropeway, conveyor apparatus, transmission line or similar means for purposes associated with or arising from the activities authorised to be carried on under the current mining lease." There is another possibility: The Transport Infrastructure Act 1994 was amended only in the last several days. The effect of these amendments is that the Minister for Transport may, in certain situations, maintain use or grant to a person a licence to construct operated stated miscellaneous transport infrastructure on stated conditions. The term "miscellaneous transport infrastructure works" may very well contemplate for example the construction of a slurry pipeline referred to above. The point arising out of the foregoing is that the authority to permit the construction of the pipeline to carry the slurry, and further, ownership of that pipeline are matters which are still to be resolved. -- 8 of 22 -- 9 The loading facility will be constructed at a site adjacent to the Norman River at Karumba. It will include concentrates receivable storage tanks, concentrates dewatering plant, water treatment plant and a dewatered concentrates storage shed. It is then proposed that 3000 tonne self propelled self discharging barges will transport the concentrate from Karumba to the export ship which will be anchored 40 to 50 kilometres off shore. The barges will be loaded from a covered conveyor from the concentrate storage shed. The conveyor will discharge directly into the barges hold via an enclosed telescopic spout. The export ships are likely to have a capacity of between 15,000 and 50,000 dead weight tonnes. It is expected that there will be approximately one ship load per week heading for destinations in Asia and Europe. The applicant acknowledges that the ship loading operation will result in the area in the immediate vicinity of the ship being unavailable to prawn trawling for about 50% of the time during the 12 week banana prawn season each year. Further, ballast waters from ships has the potential to introduce foreign organisms into some areas. The . applicant also acknowledges that it will be necessary to dredge a channel beyond the mouth of the Norman River to accommodate barge sizes and frequency of movements. At most, a -- 9 of 22 -- 10 dredged channel 16 kilometres long and 54 metres wide will be required. Dredging may generate a plume of sediment in the water which could result in a decrease in water quality or change the light conditions for benthic plants and animals. At Karumba this could have the potential to effect the nearby sea grass beds as well as the migration of the banana prawns through the entrance channel of the Norman River and the offshore spawning of Barramundi, Threadfin Salmon and Mud Crabs. Further studies are proposed to better define the dredging programme and to determine the most appropriate means of disposing of the dredged material either onshore or offshore. These studies will be undertaken as part of the development of a "Long Term Dredge Material Management Plan" for Karumba. This plan is to be prepared jointly by CZL and Ports Corporation of Queensland. It must also be said that there is a risk of spillage of concentrates to the marine environment. Summary" p. (vi) - (viii) volume 1 Draft I.A. S.) ( see "Executive The question then arises as to what authority the loading facility is to be constructed and under what authority the barge and ship loading operations are to be conducted. It is possible that a mining lease could be applied for to cover the port facilities. Under the regime contained objections to any such application may be lodged. in the Act, The applicant -- 10 of 22 -- 11 for that mining lease may further be required to submit an EMOS covering at least the port facilities. On the other hand, it may be closer to the mark to consider that the Ports Corporation of Queensland would simply not permit under any circumstances the development of port facilities by means of a mining lease. Port facilities in Queensland are as a matter of policy held in public ownership by port authorities and multiple user access to port facilities is usually maintained. Port authorities deal in land and grant leases as a means of establishing appropriate arrangements for the use of ports and port facilities. There are other considerations. The many environmental issues arising from the use of port facilities and loading operations include noise, dust, loading operations in the water ways, management of waste from facilities, works on or below high water including wharf construction and operation, discharges of wastes (garbage/ sewerage/oil/noxious cargo) from vessels in port and in state waters, discharges of wastes (garbage/sewerage/oil/noxious cargo) from vessels beyond state waters and dredging. These matters would as some point invoke a plethora of legislation such as Transport Operations (Marine Pollution) Act 1995 Environmental Protection Act 1994, Harbours Act of 1995, Pollution of Waters by Oil Act 1973, Fisheries Act -- 11 of 22 -- -, 12 1976, and Commonwealth Legislation, principally, Protection of the Sea (prevention of pollution from ships) Act 1983, Environmental Protection (sea dumping) Act 1981 plus possibly Heritage legislation. The background tenure to the port and loading facilities including ownership, as with the slurry pipeline has yet to be ( J resolved. As indicated above, Mining Lease Application 90045 and Mining Lease Application 90058 are approximately 300 kilometres from the Gulf of Carpentaria - if the distance of the pipeline is any gauge. It may be longer by another route. In considering whether or not the mining lease should be recommended I am required to take into account and consider inter alia those matters referred to in section 7 .26 (3) {i), (j) and (k) of the Act. As a general proposition, it is true that I must have regard to adverse environmental effects occurring outside the boundaries of the subject lease area. An obvious case for example, would be the discharge of toxic waste into streams - such toxic wastes being generated from within the boundaries of a proposed mining lease. As a consequence, it could be argued that the "public -- 12 of 22 -- 13 right and interest" might be prejudiced and further that a "good reason" has been shown for a refusal to grant the mining lease. (section 7.26 (3) (j) & (k)) It would · be beyond argument that such discharge would clearly be "caused by those operations" referred to in section 7.26 (3) (i) of the Act. (My underlining) When one considers the use of the word "operations" in Section 7.26 (3) of the Act, it is in the context of operations carried on under the authority of the proposed mining lease. That is, any mining lease granted would authorise those operations. In that sense, it is the "prime mover". Similarly, in my view, in considering whether or not to recommend the grant of a mining lease, I would need to consider inter alia whether those operations would conform with sound land use management and whether or not there would be any adverse environmental effect caused thereby. In my view, it is a significant point that any grant of mining leases 90045 and 90058 would simply not authorise any construction or operations at Karumba. Neither, for that matter, would any such grant authorise the construction or the operations of the slurry pipeline. It also follows from that, and- from the matters referred to above, that any adverse environmental effects arising from operations at Karumba, would -- 13 of 22 -- 14 not be "caused" by any operations on lease application areas 90045 and 90058. In considering whether or not there was or might be any prejudice to the "public right and interest" and or whether or not "any good reason" had been shown for a refusal to grant the mining lease, it is true that there could be any number of factors to be considered. The real question in my view is whether or not those facts and circumstances raised in paragraph l(b) of the objections constitute one or more of those matters. It seems to me that in the circumstances of this application, the construction of port facilities and the loading and unloading of vessels in the vicinity thereof, some 300 kilometres at least from Mining Lease Application 90045 and Mining Lease Application 90058 such operations to be undertaken pursuant to separate authorisation with it's own or separate regime for addressing environmental matters, are not considerations applicable in applying section 7. 2 6 ( 3) of . the Act to the question of whether or not Mining Lease Application 90045 and Mining Lease Application 90058 should be recommended. In my view the answer to that question is "no". It follows from that, that objections as particularised in paragraph l(b) of the facts and circumstances in support of each -- 14 of 22 -- 15 objection, are not proper particulars for the purposes of Mining Lease Application 90045 and Mining Lease Application 90058. Pioneer Concrete, Re Eddowes and Grasso do little to assist the determination of this application. Mr Plunkett has also drawn to my attention the concept of "public interest" as articulated by the High Court in Sinclair (Supra) and as set out hereunder: Barwick C.J. [168] " ...... if the application is not irregular, he [the Warden} is bound to consider whether he should recommend the acceptance or rejection of the application. If he forms the opinion that the public interest or right will be prejudicially affected by the granting of the application, he is bound to recommend the rejection of the application." Jacobs J. [172] " ...... the words "public interest" are so wide that they comprehend the whole field of objection." " ..... the interest of a section of the public is a public interest but the smallness of that section may affect the -- 15 of 22 -- 16 quantity or weight of the public interest so that it is outweighed by the public interest in having the mining proceed. interest." It does not, however, affect the quality of that Stephens J. [171] " ..... filly consideration of the public interest should, I think, involve the weighing of the benefits and detriments." Gibbs J. [170] " ....... A warden may recommend against an application not because he has formed an opinion that the public interest will be prejudicially affected but because he considers the public interest "might" be prejudicially affected and in all the circumstances of the case the application should not be granted until it is possible to say whether the effect of granting will be prejudicial or not." Leaving aside the facts in Sinclair (supra), there is no inconsistency between this dicta and the view I have taken of this matter. -- 16 of 22 -- 17 Mr Plunkett has also referred to a number of recommendations of Mining Wardens. The recommendation of Mr T J Black with respect to mining lease application 156 Thursday Island 10 March 1986 is particularly relevant. This application was in respect of an area of approximately 1,503 hectares situated at Shelburne Bay within the boundaries of the Thursday Island Wardens Court. There were a number of objections and in particular the following - "Mining will result in extensive damage to areas of great natural beauty and botanical significance, rare flora will be destroyed and fauna and endangered species of marine life will be endangered. Consequently, being an important part of Australia's heritage [having been included in the register of the National Estate] the area should be preserved as a National Park." and "part of the mining lease application encroaches on the Great Barrier Reef Marine Park and damage will be caused to the reef by the mining process." The significant difference between Mining Lease Application 156 and Mining Lease Applications 90045 and 90058 is that the first objection quoted with respect to application 156 arose out of operations within the boundaries of the proposed mining lease. With respect to the second objection, it is to be noted that part of that Mining Lease Application, reserved for the -- 17 of 22 -- 18 construction and operation of the loading conveyor and jetty, actually encroached and intruded onto the Great Barrier Reef Marine Park. There should be little surprise at the Warden's environmental concerns with respect to these operations including concern at the possible discharge of ballast waters infected with Japanese Mussel. The objections raised in mining lease application 156 should therefore be seen in their context. In the final result it seems to me that the objection taken by Mr Fraser QC to paragraph 1 (b) of the facts and circumstances relied upon in support of the two objections is valid. These facts and circumstances are struck out. The argument based on "disconformi ty" seems to a grammatical one and in the circumstances I have taken no account of it. Further and Better Particulars This application is particularised in a letter dated 3rd March 1995 from Messrs Blake Dawson and Waldron to Messrs L. A. Evans Solicitors for the objectors. Broadly speaking the particulars cover two areas, Aboriginal issues and Environmental issues relating to Water Courses, Vegetation and the like. -- 18 of 22 -- 19 With respect to Aboriginal issues, there has been considerable research undertaken and co-operation between the parties. Various studies were identified to assess and manage the impacts of the project upon Aboriginal communities in the project areas. These studies included a survey and assessment of Aboriginal Archaeological sites and sites of cultural, social and historical significance. ( see section 8 .14. 4 of Volume 2 Draft I.A.S. report). Negotiations have been underway since mid 1993 between CZL, and others aimed at commissioning consultants nominated by the council to undertake the studies needed to provide an aboriginal perspective with respect to the project. In January 1995 there was published a supplementary report with respect to Aboriginal issues relating to the Century project site. Section 3 of that report details the archaeological investigations and the anthropological investigations. It is noted that with respect to an archaeological investigation of the Century project site by Doctor M McKay, 98 "sites" were recorded. Further investigations were undertaken in June 1994 by Kinhill Cameron McNamara with Aboriginal participation on behalf of the CLC. During this investigation five new archaeological sites were found as detailed in the above study. -- 19 of 22 -- 20 With respect to the anthropological investigations, Trigger and Devitt undertook a site survey of the Century project area in 1992 on behalf of the Doomadgee Aboriginal Community Council. The survey party comprising a male and female anthropologist and male and female representative of the Waanyi people identified four aboriginal sites in the study area. These were water holes well to the west of the proposed mine site. It is noted that a stone circle, located by McKay in 1991 was not previously known to members of the survey party. The view at that time was that it was a ceremonial ground of considerable significance to aboriginal people. Management measures have been proposed as set out in the above study. Mr Plunkett has observed that many of the issues raised in the request for further and better particulars have already been dealt with in the Impact Assessment Study. Specific reference was made to water courses and the like. Further, Mr Plunkett acknowledged that the applicant miners have actually had responses from his clients in the course of the I .A. S process about many of the issues raised in this application. I am inclined to accept this as reflecting the true situation. In my view, even assuming for the sake of the argument I had power to -- 20 of 22 -- '" 21 order further and better particulars, I am not persuaded that in the circumstances and timing of this application, such an order is necessary for effectively or fairly disposing of the application or for the saving of costs. The application is dismissed. On 2nd of April 1995 Mr Plunkett for the objectors, again requested that applications for mining leases 90045 and 90058 be adjourned. Everything that could be said in support of that argument was submitted either on 10th March 1995 or the morning of 31st March 1995. It will be recalled that on the morning of 31st March 1995 (after hearing further argument with respect to the adjournment), I requested the parties to return that afternoon with possible hearing dates with a view to them further considering the matter over that following weekend. The objectors did not return at all that afternoon as requested. The applications were set down that afternoon to commence on 8th May 1995. -- 21 of 22 -- 22 There is no material before the court which could persuade me to change the hearing date of 8th May 1995. The applications shall proceed on that date. Dated at Brisbane this 18th day April 1995 TELLO Warden -- 22 of 22 --