Cadman & Ors v Queensland Decor Aggregates Pty Ltd [1994] QMW 71

REPORT AND RECOMMENDATION OF WARDEN PURSUANT TO SECTION 7.26 AND 7.29 OF THE MINERAL RESOURCES ACT, 1989. IN THE MATTER OF: APPLICATION FOR MINING LEASE NUMBER 50020 IN THE BRISBANE MINING DISTRICT. BEFORE: F.W. WINDRIDGE, WARDEN. APPLICANT: MELTON JOHN CADMAN and OTHERS. OBJECTORS: QUEENSLAND DECOR AGGREGATES PTY LTD. 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 RHODONITE is for an area of 156.85 hectares situated on PORTION 6V of RP 15519, County of BENTICK, Parish of CATTERTHUN, off the Texas Road 30 kilometres west of Stanthorpe. 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 71 -- 1 of 17 -- The Application was lodged at the Mining Registrars Office at BRISBANE on 4 FEBRUARY 1991, and a certificate of application was issued on 4 FEBRUARY 1991 (s.7.18(1)(a), setting the last date for receipt of objections as 4 MARCH 1991 (S.7.18(1)(b). Objections were lodged pursuant to Section 7.20 of the Act. 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 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(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, the applicant was the holder of PROSPECTING PERMIT 50025 (S. 7.1). -- 2 of 17 -- 3 A declaration of posting was lodged on the 12 MARCH 1991 (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. To the minerals nominated in his application, CADMAN added further "minerals" namely JASPER and RHODOCHROSITE by letter received on 13 February 1991. By letter dated 8 October 1991, Cadman added the "minerals" MANGANESE and QUARTZ. By letter dated 1 August 1992, Cadman applied to have the mineral "CLAY" added to his application. For the record I would indicate that by an assignment lodged on 8 April 1992, Barry John NEILSON assigned his half interest to CADMAN, and on 8 April 1992, Cadman assigned his 100% interest to himself, John Ross Smith and Robert Eric Taney in equal shares i.e. 33 and 1/3rd percent. The matter was before the Wardens Court a number of times with the objections being heard on 27th March 1991. A recommendation was made on that date. After submissions were made to the Minister in relation to certain -- 3 of 17 -- 4 matters and contrary to the rules of natural justice and the spirit of Section 7.25(2)(b), the Minister referred certain matters back to the Wardens Court in relation to MLA 50021 (an application by Raddatz) and MLA 50020, the application by Cadman and others. I find that I am satisfied that (a) the provisions of the act have been complied with; (b) the consent of any trustee or other person is not required. The objection related only to the quarrying activities to be conducted by the objector, and his rights under the extractive industries permit granted by the Stanthorpe Shire Council which may be affected by the Mining Lease. The applicant has supplied further evidence and I will deal with that evidence at the appropriate stage. (B)IS THE LAND APPLIED FOR MINERALISED OR IS THE OTHER PURPOSE FOR WHICH THE LEASE IS SOUGHT APPROPRIATE? Under the provisions of Section 7.28(c) of the Act, the Minister directed a further hearing in relation to: (a) the presence of the minerals "rhodonite, "manganese", and "quartz" within the area of the lease application, the method of mining and the level of development and utilisation of these minerals. -- 4 of 17 -- 5 (b) as jasper in gravel form is not a mineral pursuant to the Mineral Resources Act 1989, the applicants be required to produce evidence of how the jasper is to be mined and the utilisation of the jasper. (c) the applicants be requested to provide evidence as to their authority to extract topsoil and red deco from the area of mining Lease Application number 50020. The matter was before the Wardens Court a number of times while the applicant arranged for testing, and on 26 November 1993, the applicant tendered further affidavit material with samples. The applicant responded to paragraph (a) of the Ministers direction by indicating that "rhodonite" and "manganese" do not appear in sufficient quantity to mine in their own right. Therefore those minerals are deleted from the application. The applicant has made some reference to "quartz" as being the "jasper" which comprises more than 90% quartz. The quartz will not be mined as "quartz" i.e. for its mineral properties as quartz but in block or slab form for use as decorative panels after polishing. To support his intention to include "clay" as a mineral, Cadman has provided the results of some tests on a sample of clay. It appears that this clay consists of 90 per cent smectite clay which is a major component in some products described as "bentonite" and "fullers earth". It appears there is some market potential for this clay. -- 5 of 17 -- 6 I accept the Applicants advice and I am satisfied on the detailed information given by them that the purpose for which the lease is sought is appropriate. The economic viability of the project is a matter for the applicants commercial assessment, and not a matter for this Court. (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 applicant indicates that equipment such as excavators, tip trucks, track drill and trucks will be available to develop the deposit. The jasper will be cut into sheets and after polishing, used in the building industry as decorative panels. (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? -- 6 of 17 -- 7 The term of lease applied for is 21 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. Industries utilising these products usually require long term leases due to market fluctuations. (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 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. No particular mining skill is needed for this operation. The applicant is currently engaged in the trucking industry, 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 Aust. Nephrite Jade Mines (1974) 7 SASR 401 at 415.) (G)HAS THE PAST PERFORMANCE OF THE APPLICANT BEEN SATISFACTORY? -- 7 of 17 -- 8 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. (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. 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. As long as any water runoff from rainfall is channelled into the natural drainage system that already exists, management of the land would not be unduly interrupted. (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 -- 8 of 17 -- 9 human habitation. Mineral treatment activities on site appear to be planned in such a way as to be unlikely to have a deleterious effect on any river system. Chemicals will not be used in the separation process. At the completion of the project, any tailings dams can be with the consent of the landowner, left as watering points for stock or native fauna, or decommissioned in the approved way. Part of the area has been disturbed and used by local government for road maintenance purposes and has been left in an unrestored state. The applicant should not be held responsible for that damage. (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. Access is off a public road. There is no evidence to suggest that there are endangered flora or fauna on the application area. There is no evidence to suggest that there are any sites of historical interest or aboriginal significance on the application area. If any such sites are identified, the E.M.O.S. document can be amended to allow for site protection or avoidance strategies. (K)HAS ANY GOOD REASON BEEN SHOWN FOR A REFUSAL TO GRANT THE -- 9 of 17 -- 10 MINING LEASE? The economic viability of this project is a commercial decision of the applicant, and not this Court. When all other aspects of the application 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 small scale operation is planned. (2)it is unlikely that the land applied for is of any interest to a large scale miner. (3)the location of the proposed mining operation and the method of mining is unlikely to cause environmental or public interest concerns. (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. (6) there is a market for the product and the project will provide employment. To my knowledge there has been no gazettal of the land as claimable land under Section 2.12 of the Aboriginal Land Act 1991. No person claiming any right or interest under "native title" has lodged any objection under Section 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 -- 10 of 17 -- 11 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 freehold grant over the area by the State of Queensland. It would appear that this grant has extinguished any "native title" that existed and there would appear to be no grounds for any claim of "native title" by any person ( MABO v Queensland (1992) 66 ALJR 408) 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 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? -- 11 of 17 -- 12 The material indicates that the land is currently used for grazing purposes and appears, on the evidence and subject to any further evidence that may be tendered in any compensation hearing, to be suitable for no other use. In my view, there appears to be no risk of significant conflict between the current land use, or any prospective land use, and the proposed mining operation. The proposed mining operation appears, on the evidence, an appropriate land use, taking into account the current and prospective uses of the land. A compensation agreement or determination of the Court will compensate the landowner for any conflict or loss over land use (s.7.36). I note that a compensation agreement has been filed with the Registrar in accordance with section 7.36(2) of the act. This recommendation is based on an assessment of the information supplied. Should there be any dispute over damage or loss, or should the miner depart from his plan of operations or EMOS and cause loss or damage or interruption to the management of the property not envisaged or not foreseen in the terms of the compensation agreement, the parties are at liberty to apply to the Court for a determination or award of compensation and if necessary, injunctive relief under the powers contained in Section 10.20(4). I note from the office file (which is at my disposal given the powers -- 12 of 17 -- 13 contained in Section 7.25(2)(a) that the objectors have sought to make representations to the Hon. the Minister about this application outside the forum of the Wardens Court and on matters on which they did not lodge any formal objection. This is, in my opinion, an attempt to circumvent Section 7.25(2)(b) of the Act, and is in breach of procedural fairness. The Minister is quite right to refuse any further submissions or to meet with the objectors. To do so may render himself subject to the injunctive powers of the Court if the applicant brings an application. The applicant has requested that the information contained in the results from testing be kept confidential as such information is of a sensitive commercial nature and may be of value to the applicant for the neighbouring lease who is in commercial opposition to his proposed operation. There is grounds for that request to be granted, given the state of opposition that exists between the parties. It is ordered that the affidavit and test results be sealed and kept confidential and not disclosed to any person except with the consent of this Court or the order of a Court of equal or higher jurisdiction. Paragraph (a) and paragraph (b) of the Ministers direction have been answered, in that the applicant has deleted "rhodonite" and "manganese" from the application, and has indicated that the quartz is to be mined in block or slab form and cut and polished for the building industry. -- 13 of 17 -- 14 In relation to paragraph (c), the objectors have obtained an injunction which prevents the applicant from utilising any topsoil or red deco from the lease area. Until the injunction is removed, the applicant is not able to utilise such product. However, on the granting of the lease, the applicant is entitled to remove and store the topsoil for rehabilitation purposes, and any red deco not used for rehabilitation or its mineral properties (i.e. polished) becomes the property of the landowner. The injunction was obtained on 14 October 1992, according to information supplied by the Objectors solicitors, but to date the matters have not been brought to trial. A further injunction restrains the applicant from proceeding with Mining Lease Application 50020 . I consider that it is an abuse of the court process if the objector has issued proceedings seeking damages and costs and obtained injunctions, but has made no attempt to proceed to trial, making use of the commercial advantage in the interim, to the commercial detriment of the applicant. APPENDICES: The following documents are appended: * Affidavit and copies of test results . -- 14 of 17 -- 15 RECOMMENDATION: Upon consideration of all the matters set forth in section 7.26(3) of the act, and the direction of the Hon. the Minister, I recommend to the Minister that the mining lease be granted over the whole of the application area for a term of 21 years. (s.7.26(2)(a),s. 7.29(2), for the purpose of mining JASPER IN BLOCK OR SLAB FORM and CLAY. The objector has had injunctions since 1992. It is further recommended that unless the objector can give an undertaking to restore those matters currently on foot in the superior courts back on to the hearing list and actively seek a trial date, the lease should be progressed toward grant. Dated at BRISBANE this 23rd day of March, 1994. F.W. WINDRIDGE MINING WARDEN. -- 15 of 17 -- 16 SUMMARY SHEET NUMBER 50020 50020MLA.BRI D1/MD7/3/94. DISTRICT BRISBANE. WARDEN F W WINDRIDGE APPLICANT MELTON JOHN CADMAN and ORS OBJECTOR NIL AREA 156.85 ha RESOURCE JASPER IN BLOCK OR SLAB FORM, CLAY. TERM -- 16 of 17 -- 17 21 years COMPENSATION LODGED. RECOMMENDATION GRANT DATE 23 MARCH 1994. TRANSMITTED N/A SECTION S. 7.26 and 7.29, 7.25(2)(B) CATCHWORDS REHEARING, MINERAL, SUBMISSION TO MINISTER ATTEMPT TO INTRODUCE NEW OBJECTIONS. INJUNCTIONS. -- 17 of 17 --