BHP Coal Pty Ltd & Ors, Re [2003] QLRT 59

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re BHP Coal Pty Ltd & Ors [2003] QLRT 59 PARTIES: In the Matter of Mining Lease No. 1759 – Application by BHP Coal Pty Ltd & Ors for Additional Surface Area of Land No. 7 FILE NO: AML00045/2003 PROCEEDING: Application for additional surface area of land DELIVERED ON: 10 June 2003 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Koppenol P ORDER: 1. Tribunal constituted by President. (at [2]) 2. Hearing dispensed with. (at [3]) 3. I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Additional Surface Area No. 7, comprising 667ha, applied for by the Applicants for the open-cut mining for coal and gaseous hydrocarbons and related purposes, be included in Mining Lease No. 1759, with the term to be concurrent with ML 1759 to expire on 31 December 2008. (at [18]) CATCHWORDS: MINING – MINING LEASE – APPLICATION FOR ADDITIONAL SURFACE AREA – RECOMMENDATION Mineral Resources Act 1989, ss. 252(1), 252A, 252C, 269(4), 270, 275 Environmental Protection Act 1994, s. 214 Land and Resources Tribunal Act 1999, ss. 39, 40 Re Redhead [2002] QLRT 24, applied COUNSEL: N/A SOLICITORS: N/A AGENTS: N/A -- 1 of 5 -- [1] This is an application by BHP Coal Pty Ltd & Ors (the Applicants)1 under s. 275 of the Mineral Resources Act 1989 (the Act) for an additional surface area (No. 7) to be included in their mining lease for an existing coal mine (Blackwater Mine, situated within Mining Lease 1759). An additional area of 667ha was sought for the open-cut mining for coal and gaseous hydrocarbons, spoil heap, access roads, water management and power lines. The land concerned is in the Rockhampton district. The application was lodged with the Mining Registrar on 13 January 2003. No objections to the application were lodged during the public objection period which ended on 19 May 2003. Constitution of Tribunal [2] The Applicants requested that a single Presiding Member of the Tribunal hear the matter. I am agreeable to that course and in accordance with ss 39 and 40 of the Land and Resources Tribunal Act 1999, I direct that the Tribunal be constituted for this matter by me. Dispensing with hearing [3] The Applicants also requested that this application be heard by the Tribunal on the papers and without an oral hearing. Under s. 270 of the Act, the Tribunal has a discretion to dispense with a hearing if 4 specified criteria have been satisfied. Because (for reasons which will appear) I am satisfied that (a) the provisions of Part 7 (Mining Leases) of the Act have been complied with, (b) there was no objection to the grant of this application, (c) no reserve land is involved, and (d) the owner of the affected restricted land (cattle yards and water pipeline) has consented, I regard this as an appropriate case to dispense with a hearing. I order accordingly. Section 269(4) criteria [4] In respect of the criteria specified in s. 269(4) of the Act (which are required to be taken account of and considered in a case such as this), I have relied upon the material lodged by the Applicants with the Department of Natural Resources and Mines and provided by the Mining Registrar to this Tribunal, and also upon the Applicants’ Additional Information and Statutory Declaration form (AISD form)2 dated 27 May 2003 and the Mining Registrar’s Report dated 29 May 2003. These reasons refer to the salient points, but not to all of the relevant evidence and other material, that I have taken into account in making my recommendation. Section 269(4)(a) – Have the provisions of the Act been complied with? [5] On 13 January 2003, the Mining Registrar issued a certificate of application. Pursuant to s. 252(1) of the Act, the Mining Registrar can only do so if satisfied that the Applicants are eligible to make this application and have complied with the requirements of the Act with respect to it. Pursuant to s. 252A, a certificate of public notice was issued by the Mining Registrar on 7 April 2003. The Applicants have lodged with the Mining Registrar statutory declarations certifying compliance with 1 The Applicants’ percentage interests are as follows: BHP Coal Pty Ltd 40.75%, QCT Mining Pty Ltd 15.78%, Mitsubushi Development Pty Ltd 15.53%, QCT Investments Pty Ltd 12.00%, BHP Queensland Coal Investments Pty Ltd 8.50%, QCT Management Ltd 6.69%, Umal Consolidated Pty Ltd 0.75%. 2 See Practice Direction No. 1 of 2001. -- 2 of 5 -- the statutory requirements for notifying the application.3 I note that the land the subject of this application wholly comprises freehold land and that the native title provisions of the Act are therefore not applicable. There is no reserve land involved and the owner of the affected restricted land has consented. I am satisfied that this criterion has been established. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [6] The Applicants’ AISD form said that the Applicants knew that the application area was mineralised because of ongoing exploration drilling programs in adjacent pit areas which provided geological information since incorporated into the mine geological model of the coal seam deposit. The application area is adjacent to the existing mining activities. The subject area is to be used for open-cut coal mining and infrastructure works including access roads, power lines, intercept drains and holding dams. I am satisfied that the area is mineralised and that the other purposes for which the additional area is sought are appropriate. Section 269(4)(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? [7] The application area will be an extension of the existing Blackwater Mine. The subject mining lease (ML 1759) expires in 5½ years. I am satisfied that this criterion has been established. Section 269(4)(d) – Is the land and the surface area of that land in respect of which the mining lease is sought of an appropriate size and shape? [8] The application area is sought to progress current open-cut mining operations at the Blackwater Mine. The area and shape of the land applied for is necessary to meet operational requirements. Its shape is determined on its western side by the current boundary of the surface area of the mining lease held by the Applicants. There is no evidence to indicate that the size and shape is not appropriate. Section 269(4)(e) – Is the term sought appropriate? [9] The term sought matches that of the existing mining lease which expires on 31 December 2008. The additional land is required to progress the current open-cut mining operations. I am satisfied that the term sought is appropriate. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease [10] The Applicants are experienced mining operators with large mining activities and appropriate human and other resources. I am satisfied that this criterion has been established. 3 The declaration under s. 252C of the Act was lodged within the Mining Registrar-extended time. The declaration under s. 214 of the Environmental Protection Act 1994 was lodged 7 days late. However, as no prejudice is demonstrated by that delay, I am prepared to accept that the late lodgment is not invalid: see Re Redhead [2002] QLRT 24, at [7]. -- 3 of 5 -- Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [11] The Applicants have never had a mining show cause notice, mining tenure cancelled, penalty or conviction under the Act. There was no material before me to suggest any unsatisfactory past performance by the Applicants. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences? [12] The evidence indicates that there are no such underlying tenures. No relevant disadvantage should therefore result. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [13] The existing land use is grazing. Apart from mining–related activities, it is apparently not otherwise capable of being used for any other purpose. The mining activities will be carried out in accordance with the draft environmental authority issued under the Environmental Protection Act 1994. After mining, the land will be appropriately rehabilitated, such that it may later be usable for grazing. I am satisfied that this criterion has been established. Section 269(4)(j) – Will there be any adverse environmental impact caused by the proposed mining operations, and if so, the extent thereof? [14] The additional area sought is intended to be used as part of the existing open-cut coal mining operations. The Environmental Protection Agency (EPA) issued a draft Non- Standard Environmental Authority (Mining Activities) in relation to this application on 3 April 2003. This requires the Applicants to comply with the numerous conditions set out in that document. There was no objection to the draft environmental authority being issued. I am satisfied that the conditions imposed by the EPA will adequately deal with the environmental impact of the proposed mining and related activities. In the circumstances, I am not satisfied that there will be such an additional environmental impact caused by the continuance of current mining operations into the area subject to this application as to warrant an unfavourable recommendation in the present application. Section 269(4)(k) – Will the public right and interest be prejudiced? [15] There was no evidence before me that indicated that the public right and interest would be prejudiced. A water pipeline crosses the application area. The water pipeline easements are held by Sunwater and a decommissioning agreement is currently being negotiated. I note from the Application that the application area is also subject to a power line easement. The material before me does not indicate whether a power line is in existence and I will assume that there is not. If there is however, it may be necessary for it to be relocated so that it would not be affected by the mining activities. There is no evidence before me which indicates that the public right and interest would be prejudiced by the proposed open-cut mining and related activities. -- 4 of 5 -- Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease? [16] There was no evidence before me that indicated any good reason why this application should be refused. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [17] On the basis of the evidence and material considered in relation to criteria (i), (j), (k) and (l), I consider that the proposed activity is an appropriate land use. Recommendation [18] Taking into account all of the evidence and other material before me and, in particular, that referred to above, I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Additional Surface Area No. 7, comprising 667ha, applied for by the Applicants for the open-cut mining for coal and gaseous hydrocarbons, spoil heap, access roads, water management and power lines, be included in ML 1759, with the term to be concurrent with ML 1759 to expire on 31 December 2008. -- 5 of 5 --