Armstrong v Brown [2003] QLRT 73

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Armstrong v Brown [2003] QLRT 73 PARTIES: Dean Linsay Armstrong and Lisa Maree Armstrong Applicants/Appellants - and - Gregory John Brown First Respondent - and - Mining Registrar, Emerald Second Respondent FILE NO: APTP00062/2003 PROCEEDING: Application for leave to appeal DELIVERED ON: 29 July 2003 DELIVERED AT: Brisbane HEARING DATE: 22 July 2003 PRESIDING MEMBER: Koppenol P ORDER/S: Leave to appeal refused. (at [8]) CATCHWORDS: APPLICATION FOR LEAVE TO APPEAL – MINING LEASE – MINERALISATION – EFFECT OF RA1 – AREA REDUCTION – SUBMISSIONS Land and Resources Tribunal Act 1999, s 67(1), (2)(a) Mineral Resources Act 1989, s. 269(4) Mineral Resources Regulation 1990, Sch 4 Ware v Gusti [2003] QCA 111, applied Elliott v Hicks [2001] QLRT 38, referred to COUNSEL: Mr A. Barlow, for the First Respondent SOLICITORS: N/A AGENTS: Mr Houen, for the Applicants No appearance for the Second Respondent -- 1 of 3 -- Introduction [1] This is an application for leave to appeal against a decision of a Deputy President of the Tribunal. The decision1 was to recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Application for Mining Lease No. 70297 be granted for the purpose of mining for sapphire, zircon and corundum (and related purposes) over a specified area of 150ha only. [2] The Applicants here were the landowner/objectors before the Deputy President. The First Respondent is the mining lease applicant. The Second Respondent Mining Registrar did not appear at the hearing of this application. [3] The Land and Resources Tribunal Act 1999 permits an appeal to the President from such a decision of a Deputy President, but only on a question of law and with the President’s leave.2 Arguments [4] Mr Houen for the Applicants raised 2 points. They were that the Deputy President: (a) erred in concluding, because of a presumption (sourced in an earlier decision of the Deputy President)3 that all land in Restricted Area 1 (in which the subject land is situated) is mineralised, that the subject land is mineralised; and (b) recommended that the mining lease be granted over a smaller area than that applied for by the Applicants, but erred in deciding (without taking submissions from the Applicants) which particular smaller area should be recommended. [5] For his part, Mr A. Barlow of Counsel for the First Respondent submitted that quite apart from the so-called presumption of mineralisation, there was other evidence of mineralisation which was accepted by the Deputy President. He also submitted that the parties were given the opportunity to and had in fact made submissions to the Deputy President about the reduction in area point. Mineralisation [6] It is clear from para [18] of the Deputy President’s reasons that he accepted the First Respondent’s evidence that the land applied for contains the minerals sought by the application. The First Respondent had said that he had found areas of exposed wash, traces of corundum and some small sapphires on the application area. That was a sufficient basis to conclude that the land was mineralised. It should be emphasised that the relevant factor in s. 269(4)(a) of the Mineral Resources Act 1989 (the Act) is mineralisation and not, as Mr Houen suggested, economic mineralisation. In his reasons, the Deputy President also said that he relied on his comments in Elliott v Hicks4 and that RA1 (the abbreviation for Restricted Area 1)5 1 [2003] QLRT 55, at [55]. 2 Section 67(1) & (2)(a). 3 Elliott v Hicks [2001] QLRT 38, at [120]. 4 Ibid. 5 See Mineral Resources Regulation 1990, Sch 4. -- 2 of 3 -- “is relevant to this application.” Whilst I have some reservations about the apparent breadth in which those comments were expressed, I accept that the presence of land within RA1 is a factor to be considered when determining mineralisation. Area reduction [7] At the hearing, the parties made written submissions to the Deputy President about the size, shape and location of the area of land which could be the subject of a recommendation for grant. Although Mr Houen argued that his clients were not given the opportunity to make submissions about the impacts of mining upon specific areas of their land, it seems clear that submissions along those lines could have been included in those which were made. The Deputy President heard all of the evidence and submissions which were presented and was entitled under s. 269(4) of the Act to recommend that the application be granted “in part”—and to specify which part. The part which was specified included the identified areas of mineralisation.6 Conclusion [8] It follows that I accept Mr Barlow’s submissions. Neither point advanced by Mr Houen is fairly or reasonably arguable.7 It follows that this application should be dismissed and leave to appeal refused. 6 See AB 18. 7 That is the relevant criterion in applications for leave to appeal: Ware v Gusti [2003] QCA 111, at p. 6. -- 3 of 3 --