Connell & Anor, Re [1993] QMW 72

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 60045 IN THE QUILPIE MINING DISTRICT. BEFORE: FRANCIS WILLIAM WINDRIDGE, WARDEN. APPLICANT: MAX DOUGLAS CONNELL 50% EVELYN MAY CONNELL 50% 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 ONE hectares situated on MOOLYA PASTORAL HOLDING, County of WELLINGTON, Parish of WILD, on the old Yowah Opal Field about 80 klms north west of EULO. 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) of the act. All minerals are the preperty of the Crown (s.1.9). The grant of a mining lease does not create any estate or interest in the land (s.1.11). The Application was lodged at the Mining Registrars Office at QUILPIE on 16 DECEMBER 1992, and a certificate of application was issued on 16 DECEMBER 1992, (7.18(1)(a) setting the last date for [1993] QMW 72 -- 1 of 11 -- 2 receipt of objections as 24 FEBRUARY 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 each of the Applicants 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 applicants were the holder of prospecting permits. (s.7.1) A declaration of posting was lodged on the 25 FEBRUARY 1993 (S.7.18(5). -- 2 of 11 -- 3 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. 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 is only required to satisfy the Court that mineralisation exists. The economic -- 3 of 11 -- 4 viability of the project is a matter for the applicants commercial assessment, and not a consideration for this Court. The applicants previously held this area as Mining Claims 4033 and 4035 and have surrendered those claims in order to take out a lease over the area which will entitle them to use machinery in the mining operation. The Field Officers report indicates that some 70% of the area has been disturbed by previous mining. (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. The applicant plans to open cut with machinery. (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. This lease covers two mining claims 4033 and 4035 held by the applicants, and abuts a number of other tenements. (E)IS THE TERM SOUGHT APPROPRIATE? The term of lease applied for is TEN years. I am not satisfied that -- 4 of 11 -- 5 the term sought is appropriate. There is no explanation of why such a long term is required for the small area of 1 hectare. In my opinion a term of five (5) YEARS will be adequate 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? The applicant states he has personal financial funds available and will use an experienced machine operator to conduct operations in the open cut. 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 states he has mined opal for one year. In my opinion that is sufficient 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? -- 5 of 11 -- 6 There is no material before me to suggest that the past performance of the Applicant has been unsatisfactory. (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 rocky with spinifex and stunted scrub in places. There is no arable top soil. Rainfall is low. Stock fodder is generally of poor quality and non-existent in drought years. 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. The applicant has agreed to special conditions and a EMOS has been lodged and approved by the Registrar. The Field Officers report does not raise any concerns. (I)WILL THERE BE ADVERSE ENVIRONMENTAL EFFECTS CAUSED BY THE PROPOSED OPERATION, AND IF SO, THE EXTENT THEREOF? -- 6 of 11 -- 7 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. An EMOS has been lodged and accepted. This document addresses the effect that the mining will have on the micro environment. (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 -- 7 of 11 -- 8 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 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 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 income for the applicants. No person claiming any right or interest under "native title" has lodged any objection under Section 7.20. It appears it would not be possible to notify any such person in the normal way by way of service of a notice. The name of such 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 is intended to notify any person of the existence of the application -- 8 of 11 -- 9 who does not fall within the definition of "owner" 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 claim of "native title" 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, to be suitable for no other use. -- 9 of 11 -- 10 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 ). A compensation agreement has been filed with the Registrar in accordance with Section 7.36(2). 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, any determination of the Court being deemed to be an agreement under Section 7.38(6), 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: -- 10 of 11 -- 11 *Copy of declaration dated 25 FEBRUARY 1993. *Questionnaire completed on 22 APRIL 1993. *Copy of compensation agreement dated 18 FEBRUARY 1993. *Copy of special conditions dated 21 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 FIVE years. (S.7.26(2)(a). Dated at BRISBANE this 25th F.W. WINDRIDGE day of May, 1993. MINING WARDEN. -- 11 of 11 --