Elliot & Ors, Re [1995] QMW 40

1 REPORT AND RECOMMENDATION OF WARDEN PURSUANT TO SECTION 7.26 AND 7.27 OF THE MINERAL RESOURCES ACT, 1989. IN THE MATTER OF: APPLICATION FOR MINING LEASE NUMBER 70113 IN THE EMERALD MINING DISTRICT. BEFORE: FRANCIS WILLIAM WINDRIDGE, WARDEN. APPLICANT: Maurice James ELLIOT 33.3333% John Joseph Mervyn FISCHER 33.3333% Darren Robert FISCHER 33.3334% REPORT: This application for a mining lease under Section 7.1 of Part 7 of the Mineral Resources Act 1989 (the act) for the purpose of mining for GOLD, SAPPHIRE, and ZIRCON is for an area of 3.066 hectares on VACANT CROWN LAND in the Scrub Lead Area, Parish of KEILAMBETE. Power to grant such a lease is vested in the Governor in Council pursuant to Section 7.3 of the act after recommendation by the Minister pursuant to section 7.28(1)(a). All minerals are the property of the Crown (S.1.9). The grant of a mining lease does not create any estate or interest in the land (S.1.11), although there is the power to determine title to land (s.10.20(5). [1995] QMW 40 -- 1 of 13 -- 2 The Application was lodged at the Mining Registrars Office at Emerald on 10 MARCH 1995, and a certificate of application was issued on 10 MARCH 1995, (S.7.18(1)(a), setting the last date for receipt of objections as 7 APRIL 1995. (S.7.18(1)(b) No objections were lodged pursuant to Section 7.20 of the Act. The following matters have been taken into account and considered in making my recommendation pursuant to Section 7.26(3). (A) HAVE THE PROVISIONS OF THE ACT BEEN COMPLIED WITH? The material indicates that each of the Applicants is an eligible person as defined in Section 1.8, and is thus entitled to make the application under Section 7.2 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; that there is no building of the kind mentioned in section 7.6(2)(a)(i) and (ii) on the land, and that there is no feature of the kind mentioned in section 7.6(2)(b) on the land or within 50 metres laterally of the land. I find the application is therefore not in respect of land over which, pursuant to Section 7.6 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, at least one of the applicants was the applicant was the holder of Prospecting -- 2 of 13 -- 3 Permit 70543 (S.7.1). A declaration of posting was lodged on the 11 APRIL 1995. (S.7.18(5) 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.11.6) Service of documents was in accordance with Section 11.14. 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 7.27 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 resources sought are a mineral as defined in section 1.8 of the act. 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. The area is well known as a resource of gem bearing wash. The applicant is only required to satisfy the Court that the mineralisation exists. The economic viability of the project is a matter for his commercial assessment, and not a matter for this Court. (C)WILL THERE BE AN ACCEPTABLE LEVEL OF DEVELOPMENT AND UTILISATION OF THE MINERAL RESOURCES WITHIN THE AREA APPLIED FOR? I am satisfied the applicants have sufficient resources to develop the land to an acceptable level. The applicants have mined for sapphires for a number of years and has the essential machinery for this operation. This area has been extensively miner in the past. (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 shape has been dictated by existing leases and a roadway. (E)IS THE TERM SOUGHT APPROPRIATE? The term of the lease applied for is 10 years. I am satisfied that -- 4 of 13 -- 5 the term sought is appropriate and will allow for mining and rehabilitation to be completed. The lease is to be worked intermittently with other leases in the area. If completed earlier, the applicant may surrender the lease (S. 7.64). If mining is not finalised, the applicant has the right to seek renewal (S. 7.43). (F)HAS THE APPLICANT THE NECESSARY FINANCIAL AND TECHNICAL CAPABILITIES TO CARRY ON MINING OPERATIONS UNDER THE PROPOSED MINING LEASE? From the information supplied, I have no reason not to accept the Applicants advice and I am satisfied that the Applicant has the necessary financial capability and that he has sufficient technical expertise to properly carry on the proposed mining operation under the proposed lease. The applicant is currently engaged in sapphire 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 Australian 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 unsatisfactory. The local Field Officer is available to monitor performance and report on any breach of conditions. -- 5 of 13 -- 6 (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 will cause no significant disturbance to stock or stock watering or management facilities. The area has been significantly disturbed by previous mining and restoration and rehabilitation carried out after this mining will improve the chances for re-vegetation. 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. The area is well known as a producer of quality sapphires. (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 generally. 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 systems. Chemicals will not be used in the separation process. Water used in the process is re-cycled through -- 6 of 13 -- 7 tailings dams. These tailings dams can be left as watering points or decommissioned and rehabilitated when mining is completed. A draft EMOS has been lodged and has been accepted by the Registrar. The applicant has agreed to special conditions. (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 of 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 a site protection or site avoidance strategy. (K)HAS ANY GOOD REASON BEEN SHOWN FOR A REFUSAL TO GRANT THE MINING LEASE? When all other aspects of the application are taken into account and considered, I am satisfied that the objects of Section 1.3 (a), (b), -- 7 of 13 -- 8 (c), (d), (e) and (g) will be attained if a mining lease is granted for the term recommended, for the following reasons: (1) a small scale operation is planned. (2) it is unlikely that the land applied for is of any interest to a large scale miner with greater resources. (3) the location of the proposed mining operation and the method of mining is unlikely to cause environmental concerns or public interest concerns about safety. (4) a realistic security deposit, subject to E.M.O.S. discounts if appropriate, will be imposed to grant 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 produce and the project will provide employment. No person claiming any right or interest under "native title" has lodged any objection under Section 7.20. It appears it would not be possible to notify any such person in the normal way by 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 disadvantaged as the requirement of publication is intended to notify any person of the existence of the application who does not fall within the definition of "owner" as defined in Section 1.8. The application area is situated within vacant crown land set aside for a specific purpose namely sapphire mining. It would appear that this action has extinguished any "native title" that existed and -- 8 of 13 -- 9 there would appear to be no grounds for any claim of "native title" by any person. (MABO - 1993. High Court of Australia.) Even assuming that native title was not extinguished by prior grant and was able to co-exist with the mining title, any claim for compensation would be restricted under Section 7.38(3) 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 supra). (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. -- 9 of 13 -- 10 The proposed mining operation appears, on the evidence, to be an appropriate land use, taking into account the current and prospective use 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 is not required. This recommendation is based on the 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 10.20(4). APPENDICES: The following documents are appended: *Copy of declaration dated 11 March 1995. * Questionnaire completed on 11 April 1995. -- 10 of 13 -- 11 * Copy of COA. and APPLICATION. * Copy of Field Officers Report. * Copy of Special conditions. RECOMMENDATION: Having dispensed with the hearing and upon consideration of all the matters set forth in section 7.26(3) 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 TEN years.(S.7.26(2)(a). Dated at BRISBANE this 13th. day of April 1995. F.W.WINDRIDGE. MINING WARDEN SUMMARY SHEET -- 11 of 13 -- 12 NUMBER 70113 70113MLA.EME D1/MD1.4/95 DISTRICT EMERALD WARDEN F W WINDRIDGE APPLICANT M.J.ELLIOTT 33.33% J.J.M.FISCHER 33.33% D.R.FISCHER 33.33% OBJECTOR NIL AREA 3.066 ha RESOURCE GOLD, SAPPHIRE, ZIRCON. TERM 10 years COMPENSATION NOT REQUIRED. RECOMMENDATION GRANT DATE 13 APRIL 1995. TRANSMITTED 13 APRIL 1995. 11.00 am FWW. SECTION 7.26 and 7.27 MRA. CATCHWORDS -- 12 of 13 -- 13 -- 13 of 13 --