Aberdare Collieries Pty Ltd, Re [1995] QMW 19

REPORT AND RECOMMENDATION OF WARDEN PURSUANT TO SECTION 7.26 AND 7.27 OF THE MINERAL RESOURCES ACT, 1989. IN THE MATTER OF: BEFORE: APPLICANT: REPORT: APPLICATION FOR MINING LEASE NUMBER 50074 IN THE BRISBANE MINING DISTRICT. F.W. WINDRIDGE, WARDEN. ABERDARE COLLIERIES PTY LTD 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 OPEN CUT COAL MINING is for an area of 2779. 097 hectares situated on land ( as described in Schedule 12 attached to the application) located about 9 kilometres south of the township of Brigalow. The application generally is referred to as the Kogan Creek Project. 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 [1995] QMW 19 -- 1 of 41 -- 2 of a lease does not create any estate or interest in the land ( s. 1 . 11 ) , al though there is the power to determine title to land (s.10.20(5). The Application was lodged at the Mining . Registrars Office at .. BRISBANE on 26 March 1993, and a certificate of application was issued on 16 April 1993, (s.7.18(1)(a) setting the last date for receipt of objections as 14 May 1993.(S.7.18(1)(b). A number of objections were lodged pursuant to Section 7.20 of the Act. Some of those objections were ruled invalid and struck out. ( see ruling 28 July 1993 P.28-30). The remaining objections will be dealt with at the appropriate stages in this recommendation, or considered finally prior to the recommendation. The following matters have been taken into account and considered in making my recommendations pursuant to Section 7.26(3). (A) HAVE THE PROVISIONS OF THE ACT BEEN COMPLIED WITH? The material indicates that the Applicant is a company incorporated in Queensland and therefore the applicant 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 -- 2 of 41 -- 3 is not within a reserve as defined in the act; that there is a building of the kind mentioned in section 7. 6 (a) ( i) and (ii) on the land; and there is a feature of the kind mentioned in section 7.6(2)(b) on the land or within 50 metres laterally of the land. This has been the subject of evidence and submissions and will be dealt with at a later stage. Mr. Houen raised a number of points in the objections lodged on behalf on Vellnagel, Player, and Taylor in relation to compliance. It is appropriate to deal with several of those matters at this point. Notice of Entry not given for the purpose of marking out. (1(a) of the notice of objection). Submissions were made on this point and on 30 September 1993 the Court ruled that the provisions of the act as it stands do not expressly require notice of entry for marking out. That objection was struck out. Notwithstanding that ruling, Mr. Houen approached the Minister on this matter and in his final submissions made reference to a letter received from the Minister (p.159 6 June 1994) and the contents of that letter (see also Players evidence at p.75 6 June 1994.) With the greatest of respect to the Minister the contents of any letter do not replace legislation, and the ruling stands. The Minister would be well advised to refrain from corresponding with litigants during the course of a hearing. Any correspondence that a party elects to produce in furtherance -- 3 of 41 -- 4 of his own case may be seen as an attempt to unduly influence the court or to threaten the court with ministerial disapproval. Whether or not . a certain result was or is intended is immaterial. The normal protocols to be ob$erved by litigants in this instance has been breached. In future the Court may well have to use its injunctive powers to restrain the parties and/or the Minister. Fail to advertise in a local newspaper. ( point 1 ( b) of the notice of objection). The objection seeks to claim that the notice, being advertised in the Toowoomba Chronicle instead of the Chinchilla News would not be brought to the attention of local residents in a timely manner. The provision relating to advertisement of the certificate of application is contained in Section 7.18 subsection (3) paragraph (d) and states: (d) cause a true copy of the endorsed certificate of application to be advertised in the prescribed manner in a newspaper approved by the mining registrar and circulating in the relevant mining district at least 14 days prior to the last date for the receipt of objections pursuant to subsection (1 ). All that is required is that the Registrar be satisfied that the newspaper is a newspaper circulating in the district. By a letter dated 16 April 1993, the Registrar indicated to the -- 4 of 41 -- 5 applicant that it "must" do certain things. The use of the word "must" indicates a mandatory direction is intended by the Registrar. The applicant did as directed. My own inquiries indicate that the Toowoomba Chronicle is published daily ( except Sunday ? ) and the Chinchilla News is published once a week. As long as the newspaper was circulating in the area, the Registrar had the option of choosing either. I am satisfied that the applicant has complied with the direction given by the Registrar and that the advertising was done in accordance with the provisions of the act. That ground of objection is struck out. In respect of the road reserves within the proposed lease, the Chinchilla Shire Council has given its consent to include the road reserves in the lease area by a letter dated 16 April 1993 (see exhibit 7). The granting of the lease would not affect the holder of any other mining tenement or application for a tenement within the lease area. 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, subject to my ruling on the point raised under Section 7.6920(b). -- 5 of 41 -- .. 6 At the time of marking out and making the application, the applicant was the holder of EPC 464 and EPC 517 (S. 7.1). A declaration of posting was lodged on the 20th of May 1993 being within the time prescribed by section 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. The hearing took place at Chinchilla over a number of days in February, June and July 1994. The applicant company produced a substantial amount of reports and documentation which were admitted as exhibits. A full exhibit list is appended to this recommendation. (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 sought namely coal is a mineral as defined in section 1.8 of the act. I accept the Applicants advice and I am satisfied on the detailed information given by them that the purpose for which -- 6 of 41 -- 7 the lease is sought is appropriate. The applicant has conducted exploration the coal permits applicant (EPC 464 and operations under 517) granted for that exploration purpose. The has identified a mineable in situ "measured" resource of approximately 260 million tonnes of export quality thermal coal . Initially, extraction is planned at a rate of 560,000 tonnes per annum. There is the scope to increase this tonnage. The economic viability of the project is a matter for the applicants commercial assessment, and not a matter for this Court. The applicant has defined the areas which will be mined. Additional area is required for associated purposes, i.e wash plant, stockpiles, overburden storage, environmental controls etc. These facilities are to be located on land that is not to be mined. Other land owned by the applicant and included in the lease area will be subject to environmental controls imposed on the lease and in fact the balance of the area of the lease al though being used by the applicant for grazing purposes, could be utilised as a buffer zone for noise and visual pollution. (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. The parent company of the applicant is a major player in the resource industry in Australia and conducts a number of other mining operations in -- 7 of 41 -- 8 Queensland. With its company links to Allied Queensland Coalfields, Crusader Limited and Triton Energy Corporation, I am satisfied experienced personnel and financial backing are available for the development of the project and production and marketing of the product. I am satisfied that the financial and technical resources of the applicant will be more than sufficient to meet the expected rate of extraction of 560,000 tonnes per annum. The applicant has already tendered to the Q.E.C. for the supply of generating coal over a twenty year term. That contract has yet to be awarded. The applicant has developed the Wilkie Creek Project to a stage where product will leave the lease in the very near future. (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 applicant has defined the deposit available for open cut mining. The balance of the land will be utilised for associated purposes. The applicant has defined areas suitable for the coal preparation plant and associated facilities. Tailings storage will be located away from creeks and catchment areas. -- 8 of 41 -- t, 9 (E) IS THE TERM SOUGHT APPROPRIATE? The term of lease applied for is 20 years. I am satisfied that the term sought is appropriate and will allow for mining and rehabilitation . to be completed. For projects of this size, long lease terms are required as purchasers who enter into long term contracts must be assured of the ability to supply over those longer terms. The applicant indicates that 260 million tonnes of coal is available and will be extracted at the rate of 560.000 tonnes per annum initially. Given planned or increased rates of extraction, the grant of a long term lease is warranted. The applicant has the option of renewal under section 7.43 of the act if mining is not completed, or surrender at an earlier date under section 7.64 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 Applicant has 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 has submitted financial records and the 1993 Annual Report. The applicant is currently engaged in mining on other leases in this area, namely Wilkie Creek, and in my opinion has the experience necessary to complete the -- 9 of 41 -- 1 0 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? Mr. Houen for the objectors referred to a number of matters which he asserts indicate that the applicant has a poor past performance record. Mr. Houen made some reference to the applicants operations at Baralaba where two trial pits had been dug and bulk samples extracted for testing. Being in the area on other business shortly after the hearing I took the opportunity of making an unannounced visit to the bulk test site. While that inspection did indicate some minor problems with erosion, there was nothing that could not be readily rectified. I noticed some spoil washout which had filtered through the boundary fence on to neighbouring land. While unsightly because of the different nature and colour of the soils, it was of very minor impact, would be easily remedied, and not a matter which would justify prosecution action. The area had been drought affected for a number of years, and this obviously had an adverse effect on the rate of revegetation. However, that visit was helpful and resolved two issues, one of which will be discussed later in this recommendation, and -- 10 of 41 -- 1 1 the other issue will only be relevant in another jurisdiction. This matter (and a number of other matters) were unfortunately delayed due to the commencement of the Inquiry into the Moura Mine disaster, and I was not · able to visit the Aberdare Colliery near Ipswich until 24 January 1995. The last coal was produced from this Colliery in August 1993. As indicated by a witness for the applicant, mining has ceased and a number of leases are being surrendered. Part of the previous mining operations are being sold to end users who require the land in its current state for their own particular commercial reasons. I understand the overburden is to be utilised in a commercial process with the waste being returned to the void. Another area that has been rehabilitated is under consideration as a housing development. An area that was used for fuel storage is to be excavated and rehabilitated with clean fill. Where possible all other areas have been seeded and revegetated with trees. There is no evidence of any major breach of conditions by the applicant that would warrant or has resulted in any prosecution action. Mr. Houen produced a deal of documentation being photocopies of letters dating from the early 1980's about the Baralaba and Aberdare leases. Those documents indicate that any complaint was investigated, as it must be, and the Inspectorate and later environmental staff were constantly reviewing environmental and rehabilitation matters, as they should. From that documentation, there is no evidence of any show cause, -- 11 of 41 -- conviction or forfeiture. 12 Mr. Houen tendered his own statement about water release and alleged contamination from mines in Central Queensland. Again he could not point to any conviction or show cause in these matters. He did not call expert evidence about these particular allegation. He is not an expert himself in these matters. As a consultant acting for landowner interests his statements might be seen as self serving. I do not place any weight on that evidence. Objectors who wish to rely on past performance will need to point to substantial matters which result in show cause, conviction, forfeiture or departmental action on rehabilitation i.e. Horn • Island, Chariah. Certainly the extraction and rehabilitation of the bulk sample pit is contrary to the allegations made by the main objectors. Mr. Houen made no attempt to discredit that project as there were no grounds to raise any concern. Mr. Houen further submitted a transcript of certain proceedings before the Criminal Justice Commission conducted by the Honourable R.H.Matthews QC. Those proceedings related to illegal disposal of liquid waste, am unable to see how the contents relevant in these proceedings, given as a no-release mine. from my recollection. I of that transcript are this project is planned There is no material before me to suggest that the past performance of the Applicant has been so unsatisfactory as to -- 12 of 41 -- 1 3 warrant the rejection of the application on this ground. The local Field Officer will be available to monitor performance and compliance with special conditions. 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. Environmental staff will be available to monitor performance and compliance with water management conditions. (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 farming and it seems the proposed mining operation will cause no significant disturbance to stock or stock watering or management facilities away from the actual lease area. Claims that dust, noise and vehicle movements have disturbed stock have never been proven anywhere to my knowledge or accepted by this Court or the Land Court. Generally it has been found that the opposite is the case. I am aware that at the Peak Crossing Dolomite project cattle hang in the corner closest to the noise generated by machinery and workers. (They were supposed to be "wild cattle", from my recollection of the compensation case.) -- 13 of 41 -- .. 1 4 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, even though there is competition over land use. (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 general human habitation, except for neighbouring farms. 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. ( See Water Study - Exhibit 14, Addendum to Water Study - Exhibit 15, and Mine Site Water Management Investigations - Exhibit 16 ) . The mine is planned as a no- release operation, i.e. all water within the lease is to be retained within the lease. At the completion of the project, any catchment or tailings darns can be, with the consent of the landowner, left as watering points for stock or native fauna, or decommissioned in the approved way. Eastern Branch Creek, after being diverted into Kogan Creek during the life of the project will be diverted back to its approximate original course through rehabilitation areas and the final void. A draft EMOS was lodged and accepted by the Registrar subject to final approval. The minister for Minerals and Energy then -- 14 of 41 -- 15 directed a consultative EMOS be prepared to address the concerns of "objectors". The majority of valid and invalid objections were concerned about water namely the supply, control, use, quality, disposal etc of water on-site and off- site. The Minister approved that the Water Resources Commission, Department of Environment and Heritage, Chinchilla Shire Council and the District Water Users Association be invited to act as an advisory body to advise the Department on the water resources study and on other aspects of the proposed project • as outlined in the EMOS. By a letter dated 10 January 1994, Mr. P.Balfe, Assistant Director of the Energy Division advised the Project Manager Mr. Wregg that the "revised EMOS and supporting Water Resources Study submitted to the Department satisfies the requirements of the Department and the Advisory Bodies. (see Exhibit 19). The Assessment Report dated January 1994 concludes (at page 9): "The final EMOS and Water Study report (including the addendum) submitted to the DME is considered to be a fair assessment of the environmental impacts of the Kogan Creek Project. All the potential impacts have been addressed and the Advisory Bodies are satisfied that the potential environmental impacts can be controlled to within an acceptable level. " The Assessment Report is in evidence as Exhibit 18. -- 15 of 41 -- 1 6 Various other studies address the questions of dust and noise pollution. Dust problems can be minimised by the use of suppression water sprays and road surfacing materials. Earth works and vegetation barriers will be the main controls for noise pollution on the nearer residences. As is the usual practice, a formal and final acceptance is withheld pending the receipt of the Wardens recommendation. (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. The road access from the Warrego Highway to the mine site is Brigalow road. A traffic Impact Assessment has been completed. A full upgrade of the road with a bitumen surface as requested by the Chinchilla Shire Council will minimise noise and dust. The applicant has agreed to this request. Brigalow Road is a public road principally used by the local farming/grazing community. Those users will gain some benefit from the planned upgrade. Being a public road, any user has a "right of use" provided the vehicles meet the usual specifications of the Department of Transport. It is within the power of the mine manager to impose reasonable speed -- 16 of 41 -- 17 limits on heavy vehicles driven by its servants and contractors both on lease and off lease. I understand from the information supplied that construction of a rail loop has not been discounted. If constructed, a rail loop will alleviate the need for heavy vehicles to transport the coal. This is a decision for the applicant to make after consideration of the economic factors. At this stage the applicant plans to transport the coal using the existing rail network and port facilities in Brisbane where export - is involved. With the threatened closure of some rail lines for lack of use, one would anticipate that the increased usage of rail transport would be welcomed because of the prospect of increased rail revenue. It is not in the public interest that the project be disrupted by unnecessary industrial action. The applicant should given an undertaking as discussed later in this recommendation. The road and where necessary the rabbit fence are to be re- aligned at the applicants expense. There is no evidence to suggest that there are endangered flora or fauna on the application area. Consultants reports indicate that the vegetation of the proposed mining area is predominantly open eucalypt forest and woodland which are widespread in the region. There is no evidence to suggest that there are any sites of historical interest or aboriginal -- 17 of 41 -- 18 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. However, it appears there is a market for the product both locally and overseas, and the grant of a lease to confirm long term supply is a pre-requirement for entry into supply contracts. 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), (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) the applicant has identified a mineable resource. ( 3) the location of the proposed mining operation and the method of mining is unlikely to cause environmental or public interest concerns that have not been addressed by the relevant reports and studies. (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. -- 18 of 41 -- 19 (6) there is a market for the product and the project will provide employment in an area where except for the farming/pastoral sector, there were limited opportunities for employment in the past. (7) development of this project, in conjunction with the Wilkie Creek Project, will provide suitable coal for electricity generation and export markets. (8) the State will gain revenue from rent, royalty and rail freights, (the 3 R's of coal mining in Queensland) To my knowledge there has been no gazettal of the land as claimable land under Section 2. 1 2 of the Aboriginal Land Act 1991. No person claiming any right or interest under "native title" has lodged any objection under Section 7.20 of the Act. rt 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 7.18(3)(d) is intended to notify any person who does not fall within the definition of "owner" as defined in Section 1.8 of the Act. The application area is situated over land that is generally used for farming purposes under freehold grants by the State. rt 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, -- 19 of 41 -- 20 and a person was able to substantiate his status as "an owner", 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. I understand that the Native Title (Queensland) Act is yet to be proclaimed and may need amendment before proclamation. 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 within the lease area is currently used for farming/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. Land that is now owned by the applicant will no longer support farming or grazing activities once development commences, although the applicant states land not involved in the development or mining phase could be utilised for grazing. -- 20 of 41 -- 21 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 on land that is owned by the applicant. There is, however, some scope for conflict on land use over lands which are owned by Player, Vellnagel and Taylor. The extent of that conflict is a matter to be determined by a hearing in respect of compensation. 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.7.36). I note that a compensation agreements have not been filed with the Registrar in accordance with section 7.36(2) 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, or sooner if requested by one of the parties. However, I am aware that actions in respect of compensation have already been commenced. This recommendation is based on an assessment of the information supplied. Should there be any dispute over damage -- 21 of 41 -- 22 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). GENERAL COMMENTS. There is a matter which needs some clarification at this point. Mr. Player expressed some concern in the witness box about a report in the Chinchilla News dated March 17, 1994, and apparently draws some conclusions about the independence of the Warden in this matter ( P.73 6 June 1994). The report quotes a statement or information supplied to the newspaper by Mr. Webster under the heading "Kogan Creek project on hold". It should be noted that these proceedings are conducted under the Mineral Resources Act of 1989 by myself as Warden and not as Stipendiary Magistrate. The dual role as Magistrate and Warden was extinguished with the proclamation of the Mineral Resources Act in 1990, an action which did not enhance the judicial independence of the Warden, in my opinion. While I have no problem with the balance of the report, it appears Mr. Player is concerned about the inference to be drawn in paragraph 7 which reads "Mr. Webster said the company, on the advice of Mining Warden Mr. Frank Windridge SM was preparing an -- 22 of 41 -- 23 alternative plan for the consideration in the event no agreement could be reached with the landholder'. At the time Mr. Player was apparently the landholder referred to as some discussion had occurred in relation to certain features on the Player land. I recall that there was an application to adjourn the proceedings in order that the applicant prepare an alternate plan for mining in the event there was no agreement with the landholder. Al though there was some resistance from the agent acting for the landholder, the application was granted on the ground that if there was to be an alternate mining plan prepared, then it would be of benefit to all the parties if we knew how the applicant was planning to carry out the mining operation or vary his previously existing plan. In no way do I advise applicants how to present their case. They know, or should know, what material they need to submit in order to satisfy the requirements of Section 7. 26 subsection 3. Despite the best attempts of Mr. Gore to re-assure Mr. Player about the error of his interpretation, I was left with the impression that Mr. Player still entertained some doubts. His confidence would remain shaken if he knew that while both the PSMC and EARC Reports had recommended that the Minister take the appropriate action to separate the Wardens Cour~ from the Department some time ago, those recommendations have never been implemented to date. I am informed that a further report is to be prepared and submitted by mid year into this and other aspects of the operations of the Wardens Court. I am in no way criticising -- 23 of 41 -- 24 Mr. Player for drawing that conclusion. A lay observer may well draw the same conclusion of bias or lack of independence. This is one of the reasons that I now refuse to drive on court circuit in a QG plated car with government badges displayed. The Chief '. Justice does not do it, and I do not see that the same principle should not apply to the Wardens court. To re- assure Mr. Player, it would be appropriate if another Warden was to deal with any other matters flowing from this application, and Mr. Houen should apply accordingly. I understand from the general information put forward at the hearing that staff will be housed in or drawn from the nearby towns of Dalby and Chinchilla and no living quarters or accommodation will be constructed on site except for security/caretaker requirements. Refuse and litter should be removed to the nearest council facility and not buried or stored on the lease . The company should make it clear to all employees and contractors at the time of engagement that the relevant acts and regulations will be observed at all times including the criminal provisions of the law in relation to contraband, firearms and alcohol brought on to the lease area. A mining lease is not a public area, the lessee having the right to exclude any person thereon without his consent and to search any building or vehicle. To promote a better awareness of safety amongst mine -- 24 of 41 -- 25 management and contractors, all tender documents should contain the need to submit certified Lost Time Injury Frequency Rates (LTIFR). These rates can be audited by the Inspectorate for verification. The applicant company must show a demonstrated commitment to a Safety Management System through risk analysis and hazard management of such activities as storage and use of explosives, gas monitoring, ground control etc. Again, this system can be audited by the Inspectorate. Safe working practices and relevant industry codes of practice must be followed at all times. Poor safety performance from any contractor may justify termination of a contract or rejection of a tender in the first instance. The registered mine manager is responsible and legally liable under the Coal Mining Act 1925 for all activities on the lease, including breaches and accidents. Guidelines for general conditions of contract to cover contractor safety are issued and available from any office of the Inspectorate. The applicant should give a commitment to follow these guidelines as a minimum requirement for contractors. This is important because more work on mining sites is being completed by independent contractors even after the development phase has been completed, i.e. maintenance and refurbishment of equipment. In recent years a number of accidents have been caused by contractors resulting in the death of some of those contractors. The applicant company has not put forward any information in -- 25 of 41 -- 26 respect of union coverage or dispute settling procedures. The applicants intended policy in this regard should be disclosed, and the general nature of discussions with the appropriate union should be disclosed, including whether or not the site is a "greenfield" site or if existing arrangements from another site are extended to cover the new worksite. I understand that the C.F.M.E.U. are involved in the site agreement for Wilkie Creek. The applicant has not put forward any information in relation to training or induction courses for employees, contractors or visitors. At least one month prior to the commencement of operations, the applicant should submit the content of its training and induction courses to the Chief Inspector for approval. It would be appropriate for the contents of Induction Courses and the relevant safety training courses to be lodged with Union representatives for any comment. I expect and indeed demand a co-operative approach from management and the unions over the safety of employees. Random alcohol and drug testing should be considered as a means of ensuring a safe working environment. Such agreements can be negotiated with the Union and in fact such agreements are in place for at least eight mine sites in Queensland. While the Automotive Metals and Engineering Union has opposed such testing, The Queensland Coal Board has determined that it will not interfere with such testing. The result of any appeal to the Coal Industry Tribunal is unknown, but their opinion would be irrelevant if this Court had to deal with a fatal or serious -- 26 of 41 -- 27 injury caused by the consumption of alcohol. The A. M. E. U. may well have to do some explaining to the Court of Inquiry also if alcohol is considered to be a factor in the cause of any accident. The product being what it is, there is no way value adding or down stream processing can be implemented, apart from crushing, grading and washing to the requirements of the purchaser. The high cost of labour in Australia, including the imposts brought about by an excessive level of public holidays in addition to what are generous leave provisions compared to our competitors in the market place, means that value adding is not an econbmic feasibility, even if the product was amenable to any other processing e.g. base metals. Self regulation is a phrase often heard about, but appears to have been a quantum leap backward in the mining industry. The regulations are in place because over a century of coal mining has indicated that they are needed for safety of operations in what may often be potentially dangerous situations. The Inspectorate is responsible for the monitoring and enforcement of these regulations. With a number of new coal mines about to commence operations in Queensland, the Chief Inspector will have to ensure he has adequate trained and qualified personnel available to carry out the statutory duties imposed by the relevant legislation. To attract and retain suitably qualified and experienced personnel, conditions of employment and renumeration must be equal to those conditions offered in -- 27 of 41 -- 28 industry. At the current time I am not sure that such is the case. I now propose to summarise and deal with any remaining objections if their fate has not already become obvious . Firstly, the objections of B.M. & C.M. Rouse. Mr. & Mrs. Rouse attended the hearings but took no part in the proceedings, called no evidence, did not cross examine any witness and made no final submissions. Their grounds of objection were generally related to water (a weir on the Condamine River, pollution of the water in Kogan Creek and the Condamine River, flooding from the mining operation), and increased traffic on Banana Bridge Road. All the matters relating to the supply, control and management of water were addressed in the relevant water studies. Traffic on Banana Bridge Road is a non-event as the applicant has shifted his preferred access to Brigalow Road on the eastern side of the township. The objectors called no evidence to support their objection and I am not satisfied those objections are made out or of sufficient weight to cause the application to be rejected. With the acquiescence of the applicant, Mr. Mike Fromm was permitted to make a submission on a number of concerns even though his objection was ruled invalid. Most of the matters -- 28 of 41 -- 29 raised by Mr. Fromm related to water which has been addressed in the various studies. The rail line loop has not been discarded and may still be under consideration. Social impact would be more positive than negative with the availability of work in this project and other spin-off industries, i.e. provision of services, larger enrolments at schools through a population growth. The objections of Vellnagel, Player, and Taylor have a number of common grounds and I will deal with those common grounds as one in the order in which they appear on the relevant notice of objection, and other grounds on an individual basis. Point 1(a). out. Non compliance in respect of entry for marking This matter was dealt with by a separate ruling on this point delivered on 30 September 1993. That ground of objection was and remains struck out. Point 1(b). Non compliance in respect of advertising. This matter was dealt with at Page 4 above and the objection on this point is struck out. Point 2. applied for. Failure to justify the need to take the area -- 29 of 41 -- 30 This matter dealt with under heading ( B) at page 6. This objection is struck out. Point 3. The applicant failed to disclose amount of viable coal or the full extent of the mining. I am not satisfied that the objectors gain any benefit from this point. If they were unsure before, then the evidence to date would increase their understanding. It appears the main concern is to lay the basis for a compensation payment. The quantity of mineral to be extracted or the value of the minerals is not taken into account in the determination of any award. It is incorrect to say that a claim for compensation is a once and only proposition. It was so under the old legislation, but not this legislation. Every determination of the Court is regarded as an "agreement" between the parties ( see section 7. 38 ( 6) which entitles any party to his usual remedies for a breach of that "agreement". As with any claim, the person making the claim must prove the damage and then quantify the loss. I am not satisfied that this ground of objection is made out and this ground of objection is struck out. Point 4. Inadequate disclosure of environmental impact. The revised EMOS and all relevant studies have been accepted by the Advisory bodies and the Department. The matters raised under Point 4 are not substantiated and are struck out. -- 30 of 41 -- 31 Point 5. No demonstration of viable markets or that rail or port facilities are available. The decision to mine and tender for supply is a commercial decision of the applicant. It is a Catch 22 situation because without a lease to guarantee supply, negotiating for a contract is near impossible. However, I am satisfied that it is more likely than not that markets will be found and negotiated. I note from recent reports that the Wilkie Creek Project has commenced operation. By virtue of section 7.25(2)(a), the Court is permitted to inform itself in these matters. This fact was not evident at the time evidence was taken, although I recall company officials referring to Wilkie Creek. The objector has not substantiated his claim that rail or port facilities are not available or unsuitable. That objection is struck out. Point 6. Water Quality and Land Rehabilitation. Water quality has been dealt with by the studies which have been accepted. In various reports and relation to land rehabilitation, the objectors appear to rely on some misconception that the land must be restored exactly to its pre mining use. In some cases this is possible, but not always, and it is by no means a set rule. In many cases, a post mining use is possible, but not in all. Where a post mining use is not possible or there is a reduced use, the compensation provisions of act come into effect. Every case -- 31 of 41 -- 32 is decided on its merits, but I see no merit in this objection. The objection is struck out. Point 7. (Vellnagel and Taylor) Point 8 (Player). Unauthorised entry, trespass, shooting etc. In my experience, this problem probably exists to some extent now without the existence of the lease. In fact the presence of responsible persons in the area may well deter any unauthorised entry. The applicant cannot be held responsible for the criminal acts of others. The landholders have their usual remedies through the civil or criminal law. It is also a matter that is not compensible under Section 7.38. Point 8 (Vellnagel & Taylor) Point 9 (Player). to stock causing reduced productivity. Disturbance This ground of objection is more appropriately dealt with under the provisions relating to compensation and not a reason to reject the application. It has been the experience of this Court and the Land Court that farm animals very soon settle down and become used to any change of circumstances. There was no substantive proof of such an observation. This objection is struck out. Point 9 (Vellnagel and Taylor). Point 11. (Player). Not provided with evidence that the miner has a good record. -- 32 of 41 -- I I I r, 33 There is no requirement for the applicant to provide such information to any landowner or objector. The applicant must satisfy the Court that it has a satisfactory past performance. As I am satisfied the applicant has a satisfactory past performance, that ground , of objection is struck out. Point 10. ( Player only) . lack of consent to mine around exclusion zones. The applicant is aware of the limitations placed on his plan of operations because of section 7.6(2) paragraph (a) in relation to certain improvements. A lease cannot be granted over those improvements and the exclusion zones that existed at the date of issue of the Exploration Permit must apply. However, away from the main improvements there is a feature which is the cause of some disagreement between the parties. Section 7.6(2) provides that a mining lease shall not be granted over the surface of land of an owner that is (b) within 50 metres laterally of- (i) a principle stockyard or a dam, bore or artesian well of the owner of that land or other artificial water storage of that owner connected to a supply of water or (ii) a cemetery or burial place .... except with the written consent of the owner of that land ..... At this stage of the proceedings the owner has refused to give that consent, the owner maintaining that the consent is necessary because the feature falls under paragraph (b)(i) of -- 33 of 41 -- , I \ ,- 34 section 7.6(2). The applicant maintains it does not require consent as the feature is not one contemplated under paragraph (b)(i) of section 7.6(2). It is appropriate to record the exact nature of this feature and its history in order that the correct interpretation is reached. Mr. Player refers to this matter in his evidence, commencing at page 71 of proceedings commencing on 6 June 1994, page 94 where he is cross examined by Mr. Gore, and in two statements admitted as exhibits 26 and 49. As only the interpretation of paragraph (b)(i) of section 7.6(2) is in question, I will draw some of the facts from the statement of Ian Nelson Player titled "Supplementary statement .... " It is not contested that in mid 1980, a "trial pit" or "box cut," as it sometimes known was excavated, that is, overburden was removed and a bulk sample of coal was extracted for testing and analysis. Player claims, and it appears to undisputed from the documentary evidence he produced, that if mining had not commenced within five years, the pit reverted back to him and he could either demand that the pit be filled in i.e. rehabilitated with the stockpiled overburden, or left as water storage. The option was to be his. In 1981, Oilmim N.L. wanted to use the pit as water storage, and Player agreed to the construction of a catchment drain to channel water into the excavation. With the catchment drain installed, the pit -- 34 of 41 -- ' l 35 filled with water about 1984. In 1987, Player, by an agreement with Moonie Oil and Transoil who had taken over the Authority to Prospect from Oilmin N.L.agreed to leave the pit unrehabilitated and retain same as a water storage. Other parts of Player's statement, up tp paragraph 20, refer to the use of the pit up to the present time. The Mineral Resources Act 1989 does not define "dam" or "improvement". However, for the purposes of this act, one can assume that with the separation of dwelling houses and buildings from the features mentioned in paragraph (b), dams etc are not meant to be improvements for the purpose of exclusion of mining, and thus a smaller proscribed area is protected. One must exclude the other features mentioned in subparagraph (b)(i). The feature is certainly not a bore or artesian well. It is not an artificial water storage connected to a supply of water, i.e. turkeys nest, iron, steel, concrete or fibreglass tank drawing its supply of water from a well or bore . It therefore is either a "dam" or it is unprotected water storage. There is no definition of "dam" in the Water Resources Act 1989. However, that act refers to and defines a "referable dam" which means" (a) works or proposed works that include or -- 35 of 41 -- I T 36 would include a barrier whether permanent or temporary that does or could or would impound, divert or control water, which barrier (i) is 10 metres or more in height and creates a reservoir storage capacity of more than 20 000 cubic metres; or .. (ii) is more than 5 metres in height and creates a reservoir storage capacity of 50 000 cubic metres or more; (b) works- (i) that consist of or include or would consist of or include a barrier whether permanent or temporary that does or could or would impound, divert or control water or hazardous waste, other than a barrier defined in paragraph (a) of this definition; (ii) other than a barrier whether permanent or temporary that do or could or would impound, contain, divert or control hazardous waste. I think we can exclude the latter as there is evidence from Mr. Player that he and others use the water for grazing purposes. I consider we can exclude the balance of the term because there is no barrier of 5 or 1 0 metres height to impound or divert water or waste. In the absence of any definition or definitive case law on the point, I come back to the original purpose. The excavation was a box cut for the purpose of extracting a sample of coal after removal of the overburden. It was never a construction meant to be a dam and never constructed in a place where a dam would -- 36 of 41 -- \ 37 normally be constructed. To divert water into the pit, a channel drain had to be cut. Player, in paragraph 12 of his statement, confirms that " because of its location and the existing water facilities in the various paddocks, its best use · is as a reserve supply". There is no barrier or wall constructed from the material taken from the excavation, as is the usual manner of construction of a dam in rural Australia. Throughout his statement Mr. Player quite correctly in my opinion refers to the "trial pit" and "water storage" because that is what it was and what it was intended to be after the sample was removed. Only when Mr.Player needs to emphasise the point does the feature become a "dam". Finally, having had the advantage of visiting Baralaba because Mr. Houen made some reference to Baralaba and past performance, I can say that on inspection of those pits, in no way could I consider either to be a "dam" for the purpose of the Mineral Resources Act. Each is in fact merely a pit that has filled with water suitable for stock watering purposes. I consider that the "trial pit" is therefore not a dam but an artificial water storage not connected to any supply of water and therefore unprotected by section 7.6(2)(b) of the act. Surface area therefore may be taken over this feature, but the other improvements referred to and conceded by the applicant to fall under section 7. 6 ( 2) (a) ( i) will be excluded from the lease area. -- 37 of 41 -- 38 APPENDICES: The following documents are appended: * Ex. 1 . * Ex. 2. * Ex. 3. * Ex. 4. * Ex. 5. * Ex. 6. * Ex. 7. * Ex. 8. * Ex. 9. * Ex.10. * Ex. 11 . * Ex.12A. * Ex.12B. * Ex.12C. * Ex.13. * Ex. 14. * Ex.15. * Ex. 1 6. * Ex.17. Letter dated 24 June 1993. Letter dated 25 June 1993. Mining Lease Application and EMOS. Letter dated 18 May 1993. Certificate of Application. Letter dated 16 April 1993. Letter dated 23 July 1993. E.P.C. 464 and 517. Traffic Assessment, Air Pollution Assessment, Noise Level Assessment, Biological and Physical Assessment of soil, Fauna, Land Capability and Farm Management. Colour coded sketch of surface of application area. Sketch plan of open cut resources. Letter dated 1 July 1993. Letter dated 18 June 1993. Letter dated 9 June 1993. Statement by G.T.Houen. Kogan Creek Water Study. Addendum to Water Study. Mine Site Water Management Investigation. Revised EMOS. -- 38 of 41 -- , ' 39 * Ex.18. Assessment Report - Kogan Creek. * Ex.19. Letter dated 10 January 1994. * Ex.20. Letter dated 3 February 1994. * Ex.21. Aerial Photograph. * Ex.22. Aerial Photograph. * Ex.23. Mine Layout plan. * Ex.24. Map showing exclusion zones. * Ex.25. Statement to Australian Stock Exchange. * Ex.26. Statement by I.N.Player. * Ex.27. C.V. of Dr. Best. * Ex.28. C.V. of D.J.Moore. * Ex.29. C.V. of P.E.Smith. * Ex.30. C.V. of J.C.Mcintosh. * Ex.31. Report by DPI. * Ex.32. Letter from DPI dated 23 February 1994. * Ex.33. Folio of Photographs. * Ex.34. C.V. of Mr. Ison. * Ex.35. C.V. of Mr. Krisanski. * EX.36. Drawing 69A. * Ex.37. Drawing 68A * Ex.38. Report. GHD. 16 May 1994. * Ex.39. Supplementary Report dated 31 May 1994. Dr.Best. * Ex.40. Supplementary Report dated May 1994. David Moore. * Ex.41. Statement by Barry Webster. * Ex.42A. Financial Statement. * Ex.42B. Annual Report 1993. * Ex.43. FOI documents - Aberdare -- 39 of 41 -- * Ex.44. * Ex.45. * Ex.46. * Ex.47. * Ex.48. * Ex.49. * Ex.SO. * Ex.51. * Ex.52. * Ex.53. 40 FOI documents - Baralaba. copy of CJC proceedings. Pictorial report - Kogan Creek Bulk Sample. Further Report - Plan C. Dr. Best 3 June 1994. Further Report traffic - increased extraction. Supplementary statement - I.N.Player. 6/6/94. Conceptual changes - MRA. Copy agreement Moonie Oil/Transoil & Player. Table of Water Quality Guidelines. Extract - Chinchilla News. 17 March 1994. OTHER DOCUME~TS NOT FORMALLY TENDERED AS EXHIBITS. * * * * * * * * * * * Notice of Objection. Vellnagel. Notice of Objection. Player. Notice of Objection. Taylor. Notice of Objection. Rouse. Phamplets referred to by Kenway. Statement by G. Houen. Report by Allied Queensland Coalfields. Submissions from Mr. M. Fromm. Submissions from Mr. Houen. Submissions from Applicant. Transcript of various hearing days. -- 40 of 41 -- 41 RECOMMENDATION: 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 application area for a - term of TWENTY years, (s.7.26(2)(a), but excluding the surface area protected by the provisions of Section 7.6(2)(a). The application is adjourned to 1 0. 00 am on Friday 3 March 1995 at Wardens Court Brisbane for mention in respect of any application for costs. Dated at GLADSTONE this 9th day of February 1995. F.W. WINDRIDGE MINING WARDEN. -- 41 of 41 --