CRA Exploration Pty Ltd, Re [1993] QMW 198

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 50059 IN THE BRISBANE MINING DISTRICT. BEFORE: F.W. WINDRIDGE, WARDEN. APPLICANT: CRA EXPLORATION 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 GOLD, SILVER and COPPER is for an area of 70 hectares situated on State Forest 639, County of FITZROY, Parish of MANUNBAH , on Plan FTY 902, on the eastern side of Mi Mi Creek. 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). The Application was lodged at the Mining Registrars Office at BRISBANE on 29 JUNE 1992 and a certificate of application was [1993] QMW 198 -- 1 of 13 -- issued on 29 JUNE 1992, (s.7.18(1)(a), setting the last date for receipt of objections as 27 JULY 1992 (S.7.18(1)(b). One objection was lodged pursuant to Section 7.20 of the act by the Kilkivan Shire Council. This objection was subsequently withdrawn. A "letter of concern" from the Principal of the Barambah Environmental Education Centre is not a valid objection in the terms of the act and is struck out. 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. Documentation is respect of registration as a company was produced. I accept, on the material before me, that the land applied for is 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 in respect of land over which, pursuant to Section 7.6 of the act, a mining lease shall not be -- 2 of 13 -- 3 granted without the consent of another person or persons. That person is the Conservator or Forests. However, from information supplied to the Court by the legal representative of the applicant, and the District Forester at Imbil, it appears that all matters in issue have been resolved and a compensation agreement will be finalised in the immediate future. At the time of marking out and making the application, the applicant was the holder of EXPLORATION PERMIT 5187 (S. 7.1). A declaration of posting was lodged on the 22 JULY 1992. (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 has been obtained. The hearing was conducted at Brisbane on 11 October, 29 October and 12 November 1993. Only that hearing ( 11 October 1993) where evidence was taken was transcribed. -- 3 of 13 -- 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 resource 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 the lease is sought is appropriate. The area was prospected under an exploration permit. Exploration included geochemistry, geological mapping, and drilling. 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 is a significant explorer and producer of metals in Australia. (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 -- 4 of 13 -- 5 mining lease is sought is not an appropriate size and shape. The size of the initial application has been reduced to remove some rainforest type growth from the area. (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 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 is a public company listed on all major exchanges and has access to finance through its own funds or shareholders. The applicant is currently engaged in mining on other leases in Queensland and Australia, and in my opinion has the experience necessary to complete the mining operation (Carr V -- 5 of 13 -- 6 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. Of some concern is a similar type of operation some miles away which supplies ore to the Waraluck plant at the Shamrock mine. That excavation has been left in an unsatisfactory state ( see photographs). However, I understand that this applicant was not involved in that operation. (H)WILL THE OPERATIONS TO BE CARRIED ON UNDER THE PROPOSED MINING LEASE CONFORM WITH SOUND LAND USE MANAGEMENT? The land is State Forest Reserve upon which some grazing is allowed under permit. It seems the proposed mining operation will cause significant disturbance to the surface of the land. Stock will still be able to water on Mi Mi creek away from the operations. Therefore -- 6 of 13 -- 7 disturbance to stock will be minor. 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, provided adequate buffer zones are created along Mi Mi Creek and rehabilitation works are carried out at the appropriate stage of mining. . (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 ore is to be trucked off site and treated on another lease. Mr. Murdoch when acting as agent for the applicant indicated that a void would be left after mining and this was unavoidable . Clearly this statement is not acceptable although Mr. Murdocks past performance at Harpurs Hill and Ban Ban Springs indicates that he is inclined to leave a void if it suits his particular operation. I note that the parties have re-negotiated this proposal and an extensive program is planned to refill the void as much as possible, and to shape and batter any remaining slopes to an acceptable ratio with safety fencing and signs to be erected at the end of the project. The project is one where the -- 7 of 13 -- 8 Forest Service and this Court will take a considerable interest in the following years to gauge effectiveness of controls on this type of mining in public areas. An EMOS has been lodged but is subject to further study and may have to be amended to be in accordance with this recommendation and the terms of the compensation agreement soon to be filed. (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 area is part of a state forest which may be accessed by persons from time to time. Provided safety fencing and/or signs are erected at the appropriate locations, no public right or interest will be prejudiced. 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. Some part of the application area has been abandoned to exclude rain forest, and a buffer zone will be established along Mi Mi Creek. -- 8 of 13 -- 9 (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. 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 -- 9 of 13 -- 10 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. It will remain to be seen if the declaration of the area as a State Forest has extinguished the right of any person to claim native title. ( 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? The material indicates that the land is currently used as a Forest -- 10 of 13 -- 11 Reserve with limited grazing use under permit 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, provided the appropriate safeguards and conditions are put in place. 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 not been filed with the Registrar in accordance with section 7.36(2) of the act to date, but is expected to be lodged in the very near future. 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. The previous agreement appears now to be of no relevance. 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 -- 11 of 13 -- 12 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 16 July 1992. * Questionnaire completed on 30 September 1992. * Further submission re Question 23. * Copies of certificates of registration and incorporation. * Authority to act as Agent. * Transcript of proceedings 11 October 1993. * Copy of Annual Reports 1991. * Photographs of application area (1A-1c) * Photographs of another mine used for Waraluck plant. -- 12 of 13 -- 13 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 Honourable , the Minister that the mining lease be granted over the whole of the application area for a term of FIVE years, (s.7.26(2)(a), subject to a compensation agreement being filed. Dated at BRISBANE this 15th day of November 1993. F.W. WINDRIDGE MINING WARDEN. -- 13 of 13 --