Anson's Plant Hire Pty Ltd & Ors, Re [1994] QMW 101

REPORT AND RECOMMENDATION OF WARDEN PURSUANT TO SECTION 7.26 OF THE MINERAL RESOURCES ACT, 1989. IN THE MATTER OF: APPLICATION FOR MINING LEASE NUMBERS 70077, 70078, AND 70079 IN THE EMERALD MINING DISTRICT. BEFORE: F.W. WINDRIDGE, WARDEN. APPLICANT: ANSONS PLANT HIRE PTY LTD. 98% ARNOLD ANSONS 01% REMIGIUS WILHELMES PETRUS NIJSKENS 01% REPORT: These applications for three mining leases under section 7.1 of Part 7 of the Mineral Resources Act 1989 (the act) for the purpose of mining for GOLD and SILVER are for areas of 9 hectares (MLA 70077), 6.9989 hectares (MLA 70078), and 31.81 hectares (MLA 70079) situated on LOT 15 on CLM 612, County of CLERMONT, Parish of APSLEY, held as Special Lease 12/48080 in State Forest 117. 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 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). [1994] QMW 101 -- 1 of 15 -- The Applications were lodged at the Mining Registrars Office at EMERALD on 20 JULY 1993, (for 70077 and 70078) and 26 JULY 1993 (FOR 70079), and certificates of application were issued on 18 JANUARY 1994, (s.7.18(1)(a), setting the last date for receipt of objections as 15 FEBRUARY 1994. (S.7.18(1)(b). Objections were lodged pursuant to Section 7.20 of the Act by Michael Charles DYER and others who hold grazing rights under Special Lease 12/48080 over SF 117. As the applications are made by the same parties over land held by the same objectors and all application areas are in close proximity to each other, the matters have by consent been heard together. 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 Applicants are eligible persons 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(a) (i) and (ii) on the -- 2 of 15 -- 3 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, the applicant was the holder of PROSPECTING PERMIT 70040 (S.7.1). A declaration of posting was lodged on the 17 FEBRUARY 1994 (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 a valid objection; and (c) the consent of any trustee or other person is not required. The hearing of the applications took place at EMERALD on 29 MARCH 1994. -- 3 of 15 -- 4 (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 namely GOLD and SILVER are minerals as defined in section 1.8 of the act. In relation to mineralisation, the applicant indicated only that he had tested 70077 and 70078 with a metal detector and had taken home some dish samples. Mr. Anson states from previous mining on 70077 and the samples, he can get 0.25 grams per 100 yards. On 70079, a previous mining venture had ceased apparently because the price was low and the haulage of the material was a considerable cost. On 70078 ( Taylors Hill), the applicant could only indicate anecdotal evidence such as " it is supposed to be good". The economic viability of the project is a matter for the applicants commercial assessment, and not a matter for this Court. However, the applicant must satisfy the Court that sufficient mineralisation exists to warrant the grant of a lease. In this instance I consider there is a considerable lack of evidence to support such a finding. (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? The applicant states that the financial resources available to develop the lease are in the form of a bank draft facility to the -- 4 of 15 -- 5 extent of $100.000. There is also his dwelling in Melbourne which he claims is valued at $500.000 and machinery worth $300.000. The applicant indicates he is in the process of building a dry blower for mining purposes. It also appears that funds will be available from various persons connected with Ansons Plant Hire for the project. However, there is a lack of hard evidence on all these matters, and the applicant tenders only his unsworn statement that such matters exist. (D)IS THE AREA SOUGHT AN APPROPRIATE SIZE AND SHAPE? There is nothing in the information supplied by the Applicant to suggest that the surface area of the land in respect of which the mining lease is sought is not an appropriate size and shape. (E)IS THE TERM SOUGHT APPROPRIATE? The term of lease applied for is FIVE years. I am satisfied that the term sought is appropriate and will allow for mining and rehabilitation to be completed. The applicant has the option of renewal under section 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 -- 5 of 15 -- 6 CAPABILITIES TO CARRY ON MINING OPERATIONS UNDER THE PROPOSED MINING LEASE? I have no reason not to accept the Applicants advice and I am satisfied that the Applicants have the necessary financial capability and that they have sufficient technical expertise to properly carry on the proposed mining operation under the proposed lease. The applicant has previously mined tin and alluvial gold, and in my opinion the applicant has the experience necessary to complete the mining operation (Carr V Simnovec (1980) 26 SASR 263 at 268, and Pacminex V Aust. Nephrite Jade Mines (1974) 7 SASR 401 at 415.) (G)HAS THE PAST PERFORMANCE OF THE APPLICANT BEEN SATISFACTORY? There is no material before me to suggest that the past performance of the Applicant has been satisfactory or unsatisfactory. The local Field Officer will be available to monitor performance and rehabilitation. The Inspectorate should monitor the methods adopted for mining, ensuring that industry standards are maintained and all machinery is operated in a safe and competent manner by licensed persons where necessary. The applicant has been lax in lodging royalty returns and paying royalty. Mr.Anson disputes the royalty charged but has apparently now paid outstanding dues. This occurred only after the matter was raised at the hearing and he became aware that his current position -- 6 of 15 -- 7 on royalty was having an adverse effect on the current application. (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 over a State Forrest and it seems the proposed mining operation could cause significant disturbance to stock or stock watering or management facilities. This is principally because cattle which water at the dam may be disturbed by nearby mining operations. The grazier also has concerns about dust from the dry blowing operation settling on grasses. The applicant has provided very little information about his management proposals in relation to the mining and treatment except some reference to dry blowing. (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. The grazier is concerned that mining will interfere with the catchment area of the dam, thereby reducing the quantity or downgrading the quality of the water that he needs in -- 7 of 15 -- 8 dry times. There is also the matter of dust raised from the dry blowing process. The applicant says dust will be controlled and therefore of minor effect. The grazier disputes this fact and it is apparent that he has some real concerns about the method of mining and rehabilitation. A draft EMOS has been lodged and 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. Power transmissions lines pass close by but apparently are not on the application areas. 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. The application areas are located on a State Forest Reserve (SF 117) -- 8 of 15 -- 9 but the District Forester has not filed any objection. It would appear that the Queensland Forest Service are able to levy their own security deposit and impose conditions. (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, the applicant has to satisfy the Court that mineralisation exists sufficient to warrant the grant of a lease. In these matters, there is a lack of hard evidence that such mineralisation exists. When all other aspects of the application are taken into account and considered, I am not 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)There is a lack of evidence in respect of mineralisation. (2)The applicant has been recalcitrant in the lodging of royalty returns and payment of royalty. (3) The applicant is residing on another mining lease used for business purposes and apparently not for the purpose of mining. 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 -- 9 of 15 -- 10 claiming any right or interest under "native title" has lodged any objection under Section 7.20 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 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 within a pastoral lease granted over a State Forest Reserve by the State of Queensland. It would appear that this grant has extinguished any "native title" that existed and there would appear to be no grounds for any claim of "native title" by any person ( MABO v Queensland (1992) 66 ALJR 408) Even assuming that "native title" was not extinguished by prior grant and was able to co-exist with the mining title, and a person was able to substantiate his status as "an owner", any claim for compensation would be restricted under Section 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 good reason has been shown for a refusal to grant the lease application (Carr V Simnovec, Pacminex V Aust. Nephrite Jade Mines .) -- 10 of 15 -- 11 (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 over a State Forest Reserve 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 risk of significant conflict between the current land use, or any prospective land use, and the proposed mining operation. 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 view of my recommendation, it is not necessary to further discuss compensation. This recommendation is based on an assessment of the information supplied. It should be noted by the parties that it is of no legal consequence to the miner if the grazier sells his lease, and it is of no legal consequence to the grazier if the miner sells his lease. Any compensation agreement should be binding on the successors in title, and the miner is bound by the EMOS and Mine Working Plan unless he gets the necessary consent to depart from such documented plans and proposals. -- 11 of 15 -- 12 Failure to lodge royalty returns on time or failure to pay royalty will have an adverse effect on any new application lodged by such persons, as it shown such persons are not prepared to abide by the conditions and covenants of a granted mining lease. It should also be noted by interested parties that a water storage or tailings dam left on a property after mining is completed (or the lease is abandoned or forfeited) is not available to any other miner "as of right" because if was built by a miner. It is necessary in such cases for the necessary consent and compensation agreement to be entered into by the parties and failing agreement, compensation will be determined by the Court. APPENDICES: The following documents are appended: * Copy of declarations (3) dated 16 February 1994. * Copy of special conditions (3) dated 16 February 1994. * Copy of Objections. * Copy of Transcript of proceedings 29 March 1994. -- 12 of 15 -- 13 * Copy of letters re Royalty. * Exhibit 2 - Location plot of application areas. * Exhibit 3 - Catchment area for dam. * Various photographs referred to in evidence. * Draft EMOS and plan of dry blowing plant. * Copy of COA and application. * Copy of Field Officers Inspection Report. 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 application be refused on the following grounds: 1. The applicant has failed to satisfy the Court that mineralisation exists sufficient to justify the grant of a lease. -- 13 of 15 -- 14 2. The applicant does not have a satisfactory history as far as the lodgment of royalty returns and payment of royalty is concerned. Dated at BRISBANE this 18th day of May 1994. F.W. WINDRIDGE MINING WARDEN. SUMMARY SHEET NUMBER 70077 70078 70079 70077MLA.EME D1/MD8.5/94. DISTRICT EMERALD WARDEN F W WINDRIDGE APPLICANT ANSONS PLANT HIRE and ORS. OBJECTOR DYER and Ors. AREA 9.00 ha, 6.9989 ha, and 31.81 ha. -- 14 of 15 -- 15 RESOURCE GOLD, SILVER. TERM FIVE years COMPENSATION OUTSTANDING RECOMMENDATION REFUSAL. DATE 18 MAY 1994. TRANSMITTED 18 MAY 1994 12.30 PM FWW SECTION 7.26 MRA. CATCHWORDS MINERALISATION ROYALTY -- 15 of 15 --