Ballard, Re [2003] QLRT 56

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Ballard [2003] QLRT 56 PARTIES: In the Matter of Mining Lease No. 95333 – Application by Kim Steven Ballard for Mining Lease FILE NO: AML00042/2003 PROCEEDING: Application for mining lease DELIVERED ON: 23 May 2003 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Kingham DP ORDER/S: 1. Hearing dispensed with. (at [4]) 2. Recommendation made that the Mining Lease is granted over the entire application area, for the purpose and for the term sought by the Applicant. (at [18]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION Mineral Resources Act 1989, ss 245, 252, 252A, 252C, 269(4), 270(1), 654, 656(1), (2), 657(1)(a) Central Queensland Land Council v A-G (Cth) & Anor 188 ALR 200 and 195 ALR 106, referred to COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: N/A [1] KINGHAM DP: This is an application by Kim Steven Ballard under s. 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 18.949ha area of land at Mt Flat Top, Warbreccan in the Barcoo Shire for the purpose of mining opal. The Application was lodged with the Mining Registrar for the Winton mining district on 3 December 2001. No objection to the Application was lodged during the public objection period, which ended on 24 April 2003. The underlying tenure is a pastoral holding. -- 1 of 5 -- [2] Pursuant to s. 654 of the Act, a Notification Information was lodged with the Mining Registrar. The closing day (native title issues) for this application was 10 May 2002. Before that date, a decision in the Federal Court declared the native title provisions of the Act inoperable.1 That decision was subsequently overturned on appeal to the Full Federal Court.2 [3] By letter dated 19 March 2003, the National Native Title Tribunal advised the Applicant that a search of the Tribunal’s registers on 18 March 2003 disclosed that there was no determination of native title, no registered or scheduled application for a determination of native title, nor any registered or notified indigenous land use agreement that overlapped with the application area. The Applicant lodged notices with the Mining Registrar under s. 656(1) & (2) on 20 March 2003 advising that there were no registered native title parties. Whilst those notices were lodged almost a year after the closing day (native title issues), I accept that, given the Federal Court proceedings referred to above, they were lodged “as soon as practicable” after the dates required by s. 656. Accordingly, I accept that the notices comply with the requirements of s. 656 and that, pursuant to s. 657(1)(a) the additional requirements otherwise imposed upon this application by part 17 division 4 have ceased. There is no impediment to the Tribunal dealing with this matter. Request to dispense with a hearing - Section 270: [4] I may dispense with a hearing if satisfied as to matters specified in s. 270(1). For reasons that follow at paragraph [6], I am satisfied that the provisions of part 7 of the Act have been complied with in respect of the Application. There were no objections to this Application. It appears there is no restricted or reserve land in the area applied for. I am satisfied that the preconditions to exercising my discretion to dispense with a hearing have been fulfilled. The material supplied by the Applicant and the Mining Registrar addresses each of the criteria that I must consider in making my recommendation on this Application. I am satisfied that there is sufficient information before me to enable me to properly consider this matter. Accordingly, I order that a hearing of this Application be dispensed with. Section 269(4) criteria: [5] In taking account of and considering the criteria specified in s. 269(4), I have relied upon the Additional Information and Statutory Declaration of the Applicant sworn on 8 April 2001. I have also relied upon the other material lodged by the Applicant with the Department of Natural Resources and Mines and provided by the Mining Registrar to this Tribunal and the Mining Registrar’s Report in relation to this Application. These reasons refer to the salient points, but not to all the relevant evidence, that I have taken into account in making my recommendation. Section 269(4)(a) - Have the provisions of the Act been complied with? [6] On 13 March 2003, the Mining Registrar issued a Certificate of Public Notice.3 The Applicant lodged a Declaration of Compliance with the requirements for notifying 1 Central Queensland Land Council v A-G (Cth) & Anor 188 ALR 200. 2 Central Queensland Land Council v A-G (Cth) & Anor 195 ALR 106. 3 Section 252A. -- 2 of 5 -- the Application, within the time required.4 The Mining Registrar issued a Certificate of Application on 10 December 2001, which he can only do if satisfied that the Applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the Application.5 Section 269(4)(b) - Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [7] The Application seeks the grant of a mining lease for the purpose of mining opal. The Applicant worked as an opal miner in Queensland between 1988 and 1994 and is familiar with the area applied for, having previously explored it under Mining Claims 3939 and 3941 held by his brother. The area applied for is in a known mineral producing area. Based on that experience, he considers the opal bearing horizon is less than 5 metres below the surface. I am satisfied that the area is generally mineralised. 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? [8] Whilst the Applicant proposed to work the deposit on a part time basis only, he is able to work the lease, subject to climate, on a month-on month-off basis. The Applicant has also worked in the industry as a gem cutter. There is no evidence to suggest that there will not be an acceptable level of development and utilisation of the mineral resource in the area. 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? [9] The Applicant determined the boundaries of the lease on his assessment of the area of mineralisation based on surface indications. The shape was determined taking into account the geological formations that apply to this area. The Applicant has sought a mining lease over the entire surface area applied for. There is no evidence to indicate the size and shape is not appropriate. Section 269(4)(e) - Is the term sought appropriate? [10] The Applicant seeks a term of 10 years. There is no evidence to indicate the term is not appropriate. Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [11] The Applicant has sufficient assets and cash flow to finance the operation. Initially he will hire equipment on an as-needs basis but proposes, in the longer term, to purchase his own equipment. He is an experienced opal miner and gem cutter. There is no evidence to suggest that the Applicant does not have access to the necessary financial and technical resources. 4 Section 252C(1). 5 Section 252(1). -- 3 of 5 -- Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [12] There is no evidence to suggest the past performance of the Applicant has not been satisfactory. 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? [13] There are no other holders of or applicants for exploration tenures who would be affected by the grant. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [14] The current land use is low intensity cattle grazing. The landholder did not object to the mining lease. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [15] The draft environmental authority was issued on 10 December 2001. It requires the Applicant to comply with the standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects. The draft authority was publicly advertised and no objections were lodged in relation to it. There is no evidence to suggest that the environmental impacts will not be adequately dealt with by compliance with the conditions of the Code. In particular, I note the Applicants public statements that surface disturbance will be kept to a minimum and excavations are not expected to go below about 5 metres, there will be no permanent infrastructure, no hazardous materials will be used, there will be no tailings dams or treatment plants, watercourses will not be interfered with, vegetation clearance will be minimised and the site will be progressively rehabilitated. Section 269(4)(k) – Will the public right and interest be prejudiced? [16] There is no public infrastructure on the area applied for. There was no evidence before me that indicated the public right and interest would be prejudiced. It is significant that there was no objection to this Application. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [17] 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? [18] On the basis of the evidence considered in relation to criteria (i), (j), (k) and (l), I consider the proposed activity is an appropriate land use. -- 4 of 5 -- Recommendation: [19] Taking into account all the evidence before me and, in particular, that evidence referred to above, I recommend to the Honourable the Minister for Natural Resources and the Minister for Mines that the Mining Lease is granted over the entire application area, for the purpose and for the term sought by the Applicant. -- 5 of 5 --