Edwards & Ors, Re [1993] QMW 106

- -- - -- ~ :------ - - ------- - - --------~ :. 1 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 40065 IN THE CAIRNS MINING DISTRI CT. FRANCIS WILLIAM WINDR I DGE, WARDEN. TERENCE DAVID EDWARDS 25 % SYLV I A GLADYS LOUISE E DWARDS 25 % GRAHAM WILLIAM BYRNE 25% LYN ETTE BYRNE 25 % q This application for a mining lease unde r Section 7.1 of Part 7 of the Mineral Resources Act 1989 (th e act) for the purpose of mining f or GOLD is for an area of four (4) hec~ares on MOUNT GIBSON HOLDING on the West Normanby River. 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 th e property of the Crown ( S. 1 . 9 ),. The grant of a mining lease does not create a ny es t ate or interest in the land (S.1.11), although there is power to determine title to land (s.10:20(5). I. [1993] QMW 106 -- 1 of 11 -- 2 The Applica ti on was lodged at the Mining Registrars Office at CAIRNS on 13 APRIL 1993 and a c er tifica te of application was issued on i9 APRIL 1993 (S.7.18(1)(a), setting the last date for receipt of objections as 17 MAY 1993 (S. 7.18(1 )(b). No objection s we re lodged pursuant to Section 7.20 of the Act. The following matters hav e been taken into account and consid er ed in making my recommendati o n pursuant to Se ct ion 7.26(3). (A) HAVE THE PROVISIONS OF THE ACT BEEN COMPLIED WITH? The material indicates th at each of the Applicants i s an el igible person as defined in Section 1 .8 , and is thus entitled to make the application under Section 7 .2 o f the Act. I accept, on the material before me, that the land app li ed for is not withi n a re se rv e as d efi ned in the act; that th ere is no building of the kind mentioned in section 7.6(2)(a)(i) and (ii) on t~e land, and that there is no feature of the kind mentioned in section 7.6(2)(b) o n the land or within 50 metres later a lly of the land. I f in d the application is therefore not in respect o f land ove r which, pursuant to Section 7.6 of the act, a mining lease shall not be grant e d without th e consent of ano th er p e rson or persons. -- 2 of 11 -- ' •,_ -------------- ----- 3 At the time of marking out and making the application, the applicants were the holders of PROSPECTING PERMIT 40291 (S.7.1). A declaration of posting was lodged on the 2 June 1993 (S.7.18(5) I am satisfied, on the material, including the uncontested information in the applicatfon 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). There was some reference to insufficient markings on the posts. I am satisfied from the investigations of the Registrar and the Field Officer that any irregularity has been rectified, and no person would have been disadvantaged by the insufficiency of any markings. I recommend substantial compliance on this aspect. 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 APPLIED FOR MINERALISED OR IS THE OTHER PURPOSE FOR WHICH THE LEASE IS SOUGHT APPROPRIATE? -- 3 of 11 -- 4 I am satisfied that the resourc e s oug ht is a mineral as defined in section 1.8 o f t he act. The applicant expects to recover 0.5 gm per tonne, with the treatment o f 1000 t on nes per week. On the current pri ces, the applicant feels the operation is viable . I accept t h e Applicants advice and I am satisfied on t he detailed i nfor mation given by them that the purpose f or which the lease is sought is appropriate . The are a is well known as a resource of gold . The applicant is only required to satisfy the Court t hat the mineralisation exists . The economic viab i l ity of the project is a matter f or his commercial assessment, and not a matter for this Court. The applicants intend to retreat o ld tailings material. (C) WILL THERE BE AN ACCEPTABLE LEVEL OF DEVE LOPMENT AND UTILISATION OF THE MINERAL RESOURCES WITH I N THE AREA APPLIED FOR? I am sat i sfied the applicant has sufficient resources to develop the ~and to an acceptable l evel. The a pplicants have mined for gold and tin for a number of years and has th e essential machinery for this operation. (D) IS THE AREA SOUGHT AN APPROPRIATE SIZE AND SHAPE? There is noth i ng in the informat i on supplied by the Applicant t o \ -- 4 of 11 -- 5 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 covers the deposits of old tailings material. (E) IS THE TERM SOUGHT APPROPRIATE? The term of the 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. If completed earlier, the applicant may surrender the lease (S. 7.64). If mining is not finalised, the applicant has the right to seek renewal (S. 7.43). (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 have no reason not to accept the Applicants advice and I am satisfied that the Applicant has the nec~ssary financial capability and that he has sufficient technical expertise to properly carry on the proposed mining operation under the proposed lease. The applicants state there are liquid cash assets of $20,000.00 and machinery to the value of $130,000.00 available for the project. The applicant is currently engaged in gold mining on other leases in this area, and in my opinion has the experience necessary to complete the mining operation. Both the male applicants hold qualifications -- 5 of 11 -- 6 relevant t o t he industry. (Carr V Simnov ec (1980) 26 SA SR 263 at 268, and P ac mi nex V Australian Nephrit e J ad e Mines (1974) 7 SASR 401 at 415) . ( G) HA S TH E P AS T P ER FORMANCE OF THE APPLICANTS SA TISFACTORY? BEEN Ther e is no mate rial be f or e me to su g ge s t that the past performance o f the Applicant has b e en unsatisfactory. The ap plica nt s currently o pe ra te other min es in th e district an d th e Registrar and Fi el d Of fi ce r h a ve not s ee n fit to adversely comment on the application . (H) WI LL THE OPERATIONS TO BE CARRIED ON UNDER THE PROPOSED MINING LEASE CONFORM WITH S OUND LAND USE MANAGEMENT? The land appears to be used for l ow i ntensity grazing an d it se em s the proposed mi ning operat i on wi ll ca us e no si g ni f ic ant di st.urb a nc e to s t ock or stock water i ng or ma n agement f acilities . I nf o rma t ion h as be en su pp lied as to t h e Appl ica n ts si t e managem e nt proposals . Th e evidence le av e s me with no r eason t o be li eve that the proposed mining op e ra t io ns do not conform with so u nd l a nd use management . \ -- 6 of 11 -- - -- ~--------------------- (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 systems. Chemicals will not be used in the separation process. Water used in the process is re-cycled through tailings dams. These tailings dams can be left as watering points or decommissioned and rehabilitated when mining is completed. The applicants intend to retreat old tailings. An EMOS has been lodged and has been accepted by the Registrar. The applicants have 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. There is no evidence to suggest that there are endangered flora of 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 -- 7 of 11 -- 8 identified, the E.M.O.S. document can be amended to allow for a site protection or site avoidance strategy. (K) HAS ANY GOOD REASON BEEN SHOWN FOR A REFUSAL TO GRANT THE MINING LEASE? When all other aspect s of the application are taken into account . and co nsidered, I am satisfied that the objects of Section 1.3 (a), (b), (c), (d), (e) and (g) will be attained if a mining le as e is granted for the term recommended, for the following reasons: (1} a small scale operation is planned. (2) it is unlikely that the l and app li ed for is of a ny interest to a large scale min er with greater r eso ur ce s. (3) the l ocation of the proposed minin g operation and the method of mining is unlikely to cause environmental concerns or public interest concerns about safety. (4) a realistic security deposit, subject to E.M.O.S. discounts if appropriate, will be imposed to grant against financial failure of the miner to ensure rehabilitation is completed . (5) the applicant appear s to have sufficient experience in the industry to ac cu ra tely as se ss the potential of the project . (6) • there is a market for th e produc e and the project will provide employment . No person claiming any right or int er est und er "native ti t le 11 has lodged any objection under Section 7.20 . It appears it would not be possible to notify any such person in the n ormal way by way of service of a notice. The name of such a person claiming title wo ul d be unknown as there is no list or roll of such persons . -- 8 of 11 -- 9 However, such a person is not disadvantaged as the requirement of publication is intended to notify any person of the existence of the application who does not fall within the definition of 11 owner 11 as defined in Section 1. 8. The application area is situated within a pastoral lease granted 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 cla i m of 11 nati ve title 11 by any person. (MABO - 1993. High Court of Australia.) Even assuming that native title was not extinguished by prior grant and was able to co-exist with the mining title, 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 and subject to any -- 9 of 11 -- • i, 10 fu rt her evidence th at may be tendered in any compensation hearin g , to b e su it able f o r no other use. In my view, there appears to be no risk of s i gnificant conflict between the current land use, or any pr ospective l a nd use, and the pr o po se d mining ope r at ion . The propo se d mining operation appears, on the eviden ce, to be an a ppropri a te land use, taking in to ac count th e cu rr e nt and prospective u se of th e l and. A c ompens a tion agreeme n t or determination of the Court wi ll , compen s at e the landowner for any conflict o r lo ss over land us e ( S .7 .3 6). I note th a t a c omp ensation ag r ee ment has not been fi le d with the Re gi st ra r in acco rdan ce wit h Section 7.36(2). If not f iled wit hin th re e months from the date of this r eco mmendation, the Registrar is duty bound to r e fer th e matter of compe ns ation to this Court for d ete r mi nation . Th is recommenda ti on i s ba se d o n the a ss es s ment of the information supp,li e d. Shoul d there be any dispu te over da ma ge or loss, or sh o uld th e min e r de p art from his p l an of operations or EMOS and cause loss or damage or inter ruptio n to the management of th e pr o perty not envisaged or not foreseen in the terms of th e compensation ag r ee ment, the parties are at liberty to apply to the Cou rt for a determination or a war d o f co mp ensation a nd i f n ece s sa ry , i nju n ct iv e r el ief under th e powers contained in Section 1 0. 20(4). \ -- 10 of 11 -- 11 APPENDICES: The following documents are appended: * Copy of declaration dated 2 June 1993. * Questionnaire completed on 31 May 1993. * Copy of Special Conditions undated lodged on 28 April 1993. * Copy of Field Officers Report. 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 21 years. (S. 7 .26(2) (a). Dated at BRISBANE this 9th day of August, 1993 . _..,.....-· F.W. WI MINING WARDEN -- 11 of 11 --