Burza, Re [1993] QMW 138

1 REPORT AND RECOMMENDATION OF WARDEN PURSUANT TO SECTION 7.26 AND 7.27 OF THE MINERAL RESOURCES ACT, 1989. IN THE MATTER OF:APPLICATION FOR MINING LEASE NUMBER 95073 IN THE WINTON MINING DISTRICT. BEFORE: FRANCIS WILLIAM WINDRIDGE, WARDEN. APPLICANT: PAUL FRANCIS ROBERT BURZA. 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 OPAL is for an area of 4.00 ( four) hectares situated on LOT 278 on OL 363, County of ROSEBROOK, Parish of PATTERSON. 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 WINTON on 13 APRIL 1993, and a certificate of application was issued on 16 APRIL 1993, (7.18(1)(a) setting the last date for receipt [1993] QMW 138 -- 1 of 12 -- 2 of objections as 16 MAY 1993 (Section 7.18(1)(b). No objections were lodged pursuant to section 7.20 of the act. The following matters have been taken into account and considered in making my 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 of the Act, and is thus entitled to make the application under Section 7.2 of the Act. I accept, on the material before me, that the land applied for is not within a reserve as defined in the act; that there is no building of the kind mentioned in section 7.6(2)(a)(i) and (ii) on the land, and that there is no feature of the kind mentioned in section 7.6(2)(b) on the land or within 50 metres laterally of the land. I find that 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 lodging the application, the applicant was the holder of EXPLORATION PERMIT 8490 (S.7.1). -- 2 of 12 -- 3 The Registrar and Field Officer are the only persons that can determine if the applicant has complied with the terms and conditions of his EPM. A declaration of posting was lodged with the Registrar on a date unknown to the Court. (S.7.18(5). I am satisfied, on the material, including the uncontested information in the application form and the declaration of posting and advertising that all the provisions of the Act (other than the provisions requiring the hearing) have been complied with or substantially complied with. (S.11.6). Service of documents was in accordance with Section 11.14. I find that I am satisfied that (a) the provisions of the act have been complied with, (b) there is no valid objection, and (c) the consent of any trustee or other person is not required. I therefore dispense with the hearing under the provisions of section 7.27 of the act. (B)IS THE LAND MINERALISED OR IS THE OTHER PURPOSE FOR WHICH THE LEASE IS SOUGHT APPROPRIATE? I am satisfied that the resource sought is a mineral as defined in Section 1.8 of the act. -- 3 of 12 -- 4 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 application area is within an area generally recognised as opal bearing. The applicant states there was an exploration program over EPM 8490 and this area was identified. The applicant is only required to satisfy the Court that mineralisation exists. The economic viability of the project is a matter for the applicants commercial assessment, and not a consideration for this Court. (C)WILL THERE BE AN ACCEPTABLE LEVEL OF DEVELOPMENT AND UTILISATION OF THE RESOURCES WITHIN THE AREA APPLIED FOR? From documentation lodged with the application, I am satisfied the applicant has sufficient resources to develop the land to an acceptable level. (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 area is contained in an EPM granted for the purpose of exploration. -- 4 of 12 -- 5 (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, or surrender at an earlier date under Section 7.64 . (F)HAS THE APPLICANT THE NECESSARY FINANCIAL AND TECHNICAL CAPABILITIES TO CARRY ON MINING OPERATIONS UNDER THE PROPOSED MINING LEASE? From the information supplied, I am satisfied the applicant has the necessary financial and technical capabilities or access to those resources to carry out the mining operation. Mining for opal is basically an extractive industry utilising shallow open cuts and does not require complicated plant, processing equipment, or large injections of capital. The applicant intends to use his income from another source to finance the mining program.The applicant has been involved on the fringe with opal mining for a number of years and will rely on the assistance of others. In my opinion has the experience available through other persons 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). -- 5 of 12 -- 6 (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 does not reside in the area and it is apparent the mining on his leases has been done by others. The applicant states that others will be employed on the site. Under the circumstances, the applicant must appoint a registered mine manager in accordance with Section 27 of the Mines Regulation Act 1964, and the manager must maintain a Mine Record Book. (H)WILL THE OPERATIONS TO BE CARRIED ON UNDER THE PROPOSED LEASE CONFORM WITH SOUND LAND USE MANAGEMENT? The land appears to be used for low intensity grazing under favourable conditions, and it seems the proposed mining operation will cause no significant disturbance to stock or stock watering or management facilities. The general nature of the land is described as spinfex country with stunted eucalypt. There is no arable top soil. Rainfall is low. Stock fodder is generally of poor quality and non-existent in drought years. -- 6 of 12 -- 7 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. (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. The mining will not have any deleterious effect on any river or creek system. Chemicals will not be used in the mining process. Due to low rainfall, and the method of mining, erosion will not be a problem. There are no other environmental factors of significance indicated in the evidence which may be adversely effected by the operation. There is some evidence the disturbed crust retains more of the natural rainfall, thereby encouraging the regeneration of native flora because of seeds that have been dormant for many years. The applicant will be required to backfill where possible as mining progresses, keeping outstanding rehabilitation to a bare minimum where possible. An EMOS has been lodged with the Registrar and accepted, and the applicant has agreed to special conditions. The Field Officer will be able to monitor performance under the EMOS and report any breach of special conditions. -- 7 of 12 -- 8 (J)WILL THE PUBLIC RIGHT AND INTEREST BE PREJUDICED? No factors prejudicial to the public right and interest have been identified. There appears to be no endangered flora or fauna within the application area. It appears there are no public utilities on or across the application area. It appears there are no sites of historical interest or aboriginal significance within the area. If any such sites are identified, the EMOS can be amended to put forward specific site protection or site 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. While prices for opal are currently lower than in previous years, there appears to be an upswing in interest from buyers who report they cannot get enough stone to meet their requirements. There is further interest from overseas dealers particularly now that a twice yearly auction is promoted and conducted at Winton by local miners. Therefore, in my opinion, future prospects are looking brighter if enough stone can be produced to meet market requirements in quality and price. When all other aspects of the application and the matters referred to in Section 7.26(3) are taken into account, I am satisfied that the objects of Section 1.3 (a), (b), (c), (d), (e), and (g) will -- 8 of 12 -- 9 be attained if a mining lease is granted for the term recommended, for the following reasons: (1) a small scale operation is planned. (2) it is unlikely that the land applied for is of any interest to a large scale miner with greater resources. (3) the location of the proposed mining operation and the proposed method of mining is unlikely to cause environmental or public interest concerns about safety. (4) a realistic security deposit, subject to EMOS 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 by way of service of a notice. The name of such a person claiming title would be unknown as there is no list or roll of such persons. However, such a person is not disadvantaged as the requirement of publication of the application (S.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 area of the lease, being situated on an Occupation Licence, could be the subject of a MABO style claim. It has yet to be determined if an Occupation Licence is land capable of being subject -- 9 of 12 -- 10 to native title, or whether or not the native title has been extinguished by the grant of the Occupation Licence. If such a grant has extinguished native title, then it is doubtful if any claim could be successful. MABV V Queensland ( 1992) 66 ALJR 408). If 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 supra). (L)IS THE PROPOSED MINING LEASE OPERATION AN APPROPRIATE LAND USE, TAKING INTO CONSIDERATION THE CURRENT AND PROSPECTIVE USES OF THE LAND? The material indicates that the land is currently used for grazing purposes and appears, on the evidence, 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. -- 10 of 12 -- 11 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. 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). APPENDICES: The following documents are appended: *Copy of declaration dated 20 May 1993. *Questionnaire completed on 1 May 1993. -- 11 of 12 -- 12 *Copy of special conditions dated 10 May 1993. 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 the following conditions: (a) the applicant appoint a mine manager in accordance with Section 27 of the Mines Regulation Act 1964. (b) the applicant lodge a compensation agreement or have the matter determined by the Court. (c) the Registrar confirm that the applicant has and is complying in all respects with the terms of the Exploration Permit. Dated at BRISBANE this 27th. F.W. WINDRIDGE day of AUGUST, 1993. MINING WARDEN. -- 12 of 12 --