Brown v Armstrong & Environmental Protection Agency [2003] QLRT 55

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Gregory John Brown v Dean Lindsay Armstrong and Lisa Maree Armstrong and Environmental Protection Agency [2003] QLRT 55 PARTY/IES: In the Matter of Application for Mining Lease No. 70297 by Gregory John Brown (Applicant) - and - Dean Lindsay Armstrong and Lisa Maree Armstrong (Objectors) - and - Environmental Protection Agency (Statutory Party) FILE NO/S: AML00030/2002 ENO00064/2002 PROCEEDING: Application for Mining Lease; Objection to grant of Mining Lease; and Objection to Draft Environmental Authority DELIVERED ON: 22 May 2003 DELIVERED AT: Brisbane HEARING DATE: 25 and 26 February 2003 PRESIDING MEMBER: Smith DP ORDER/S: 1. I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Mining Lease 70297 be granted over an area of 150ha of the application area as detailed in paragraph 28 of these reasons, for the purpose and term sought by the Applicant, provided that such mining lease is subject to the following special conditions:- (i) Subject to any provisions relating to occupational health and safety, the holder of the lease shall at all times allow the landholders access to the land subject to the lease for the purpose of grazing and stockholding, save for the area of 10ha of the said lease subject to significant disturbance from time to time. -- 1 of 12 -- (ii) At the landholders’ written option, the treatment plant site and machinery site be fenced off to exclude the landholders’ stock and prevent endangerment. 2. I further recommend to the Honourable the Minister for Natural Resources and Minister for Mines that the standard conditions of the Draft Environmental Authority be amended as follows:- Pits and Surface 35(AC) The holder of the Environmental Authority must rehabilitate areas disturbed by mining activities to a stable landform free of pits or depressions, similar to that of surrounding areas not disturbed by mining. Vegetation 35(AC) The holder of the Environmental Authority must establish vegetation of the same grass species and within the range of density of cover of that of the surrounding areas adjoining the mining lease not disturbed by mining. CATCHWORDS: MINING – MINING LEASE APPLICATION – OBJECTION – ECONOMIC MINERALISATION – EXPLORATION NOT MINING – PROPER UTILISATION OF THE LAND – RECOMMENDATION Mineral Resources Act 1989 s. 245, 252, 269, 276 Sinclair v Mining Warden at Maryborough & Anor [1975] 132 CLR 473, applied Beattie v McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993, applied ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2001] QCL 119, applied Elliott v Hicks [2001] QLRT 38 at pp 117-120, applied Armstrong & Anor v Miles & Anor [2202] QCA 504, applied Brown v Armstrong [2003] QLRT 1, considered Salmon v Armstrong [1975] 132 CLR 473 at 480, followed Barry v Barrett [2001] QLRT 54 at 32-36, followed -- 2 of 12 -- COUNSEL: Mr A. Barlow, for the Applicant SOLICITOR/S: Paul Watts & Co, for the Applicant Ms A. Lenz, for the Environmental Protection Agency (Statutory Party) AGENT/S: Mr G.T. Houen, for the objectors [1] SMITH DP: On 19 March 2002 Gregory John Brown (hereafter referred to as “the Applicant”) lodged Mining Lease Application No. 70297 with the Mining Registrar, Emerald District. The Application was lodged pursuant to section 245 of the Mineral Resources Act 1989 (hereafter referred to as “the Act”) for the purpose of mining for sapphire, zircon and corundum, tailings dam, stockpile/overburden, water supply, treatment plant and associated infrastructure. [2] An objection in five parts was duly lodged to the Mining Lease Application by Dean Lindsay Armstrong and Lisa Maree Armstrong (hereinafter referred to as “the Objectors”). The Objectors are the landholders of the subject land. The grounds of Objection (hereafter “MRA Objection”) are as follows:- 1. The applicant has not complied with the requirements of the Mineral Resources Act 1989 to prove that the land applied for contains minerals of a quantity or quality to support his proposed machine mining, either for any specific term or at all, nor has he otherwise justified grant of a mining lease in accordance with provisions of the Act. 2. The applicant has not given – a) satisfactory reasons justifying the size and shape of the application area; nor b) satisfactory reasons for the term of 10 years nor any other specific term; nor c) an adequate mining program showing where mining and infrastructure will be located and when mining will commence; nor d) details of infrastructure such as roads and water supply. 3. Attachment 1 to the application, which purports to contain a mining program, is inconsistent with the requirements of the Mineral Resources Act 1989 because the dominant purpose of the proposed activity is exploration. 4. The area applied for is excessive for a sapphire mining lease, especially without proof that any economic resource exists. Grant of a lease on the basis of this application would be against the public interest and an injustice to us. 5. The grant of a mining lease, especially this very big one, would adversely affect out property and our grazing business. [3] The objectors also lodged an objection (hereafter “the EP Objection”) to the Draft Environmental Authority as follows:- 1. The standard conditions (particularly conditions 34 and 35) do not adequately provide for the rehabilitation of this good quality agricultural land and appropriate additional conditions should be imposed. -- 3 of 12 -- [4] Both the MRA objections and the EP objection were supported by written details of each objection. [5] The Application was heard in Emerald on 25 and 26 February 2003 with the last submissions provided by 24 March 2003. The Applicant was represented by Mr Barlow of Counsel. The Objectors were represented by an agent, Mr G.T. Houen. The Environmental Protection Agency (hereafter “the EPA”) was represented by Ms A. Lenz. [6] Both the Applicant and one of the Objectors, Dean Armstrong, were sworn and gave evidence at the hearing. Sworn evidence was also heard by an expert, Barry John Saunders, called by the Objectors, and Dr Ian Harold Wilson for the EPA. My decision in this matter is principally based on their evidence and on the exhibits tendered, together with the Additional Information and Statutory Declaration of the Applicant of 27 May 2002 and the Mining Registrar’s Report of 6 June 2002. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account in making my recommendation. [7] In considering this matter, I have also applied, where relevant Sinclair v Mining Warden at Maryborough and Anor1 and Beattie v. McGrady.2 I have also considered the provisions of the Act, in particular sections 252, 269 and 276. [8] For the purpose of this decision, I set out below, in summary form, the criteria specified in section 269(4) of the Act that I have taken account of and considered in reaching my conclusions in this matter. I have broken the various components of the evidence and the exhibits into the subheadings listed below based on each criterion set out in section 269(4) of the Act. Applying the decision of the Court of Appeal in ACI Operations Pty Ltd v. Quandamooka Lands Council Aboriginal Corporation3 I have addressed each ground of objection under the relevant sub-heading. I deal with the EP objection separately. Section 269(4)(a) – Have the provisions of the Act been complied with? [9] On 19 March 2002, the Mining Registrar, Emerald District, issued a Certificate of Application. Pursuant to section 252(1) of the Act, the Mining Registrar can only issue a Certificate of Application 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. [10] In his evidence the Applicant said that the requirements of the Act were fully complied with in all respects. The Mining Registrar’s Report of 6 June 2002 does not reveal any aspect of non-compliance. [11] I note that the underlying tenure is Freehold and that the native title provisions of the Act are not applicable to this application. [12] Although the MRA Objections overlap, in some instances, a number of criteria that I am to consider, it is appropriate to deal with MRA Objections 1 and 3 here. These 1 (1975) 132 CLR 473. 2 (Unreported) Supreme Court of Queensland, Cullinane J, 20 July 1993. 3 [2001] QCA 119. -- 4 of 12 -- objections can be broken down in to two specific issues, namely, “economic mineralisation” and “exploration not mining”. I will deal with each of these issues separately. Economic mineralisation [13] The Objectors rely upon the expert evidence of Mr Saunders in this regard. Mr Saunders gave the following evidence:- “Can you perhaps help define some of the terminology? There’s reference in the material, that we just spoke about, to mineralisation and there’s reference to economic mineralisation. What’s the difference? - Mineralisation is – is where the – the minerals that are – are being sought accumulate. They can accumulate over a very large area or a very small area. The – whether or not the mineral is economic depends upon the concentration of the mineralisation. If it is sufficiently concentrated to make the cost of removing over-burden, treating the wash or – or the host rock with some treatment means, then – and – and at the end of the day you make a dollar out of it, then it – it’s economic.4” [14] This issue is also clearly relevant to an examination of criteria 269(4)(b) and (c). [15] As Barwick CJ said in Sinclair v Mining Warden at Maryborough & Anor5 “It was essential that there be material before him quite apart from any objection, which would warrant an affirmative conclusion on the substance of the applications that the recommendations should be made. This, at the least, required that he be satisfied that the areas applied for held mineral, and that no greater area was recommended than was reasonably necessary for the efficient extraction of the mineral of whose presence there was evidence. By so saying, I am not meaning to imply that the evidence as to the presence of mineral will be enough in all cases to warrant a recommendation of acceptance of an application for a mining lease, but at least so much must be evidenced.” [16] For the purpose of making an application under the Act for a mining lease, and indeed for criteria (b) of section 269(4) of the Act, and taking into account what Chief Justice Barwick said as quoted above, it is my view that the land applied for holds minerals. In my view, reference to “economic mineral” is misconceived. What is relevant is whether or not the land holds mineral and, if it does, will there be an acceptable level of development and utilisation of the mineral, given the size and shape of the application and the term of the application. As Mr Saunders said in evidence whilst being cross-examined by Mr Barlow:- “So you wouldn’t ever be able to prove economic mineralisation before you actually started, because it’s a day by day, month by month thing, isn’t it?- Why is that? Because the price of sapphires change, price of diesel changes? - The economics changes, but it doesn’t mean it’s not economic. All right. It could be quite the case, couldn’t it, that something that is economic extraction in one month could be uneconomic extraction the next month – during the next month, couldn’t it? - Yes, that’s – that’s possible. All right? - Yes. So you can’t ever predict economic mineralisation, can you? - Yes, you can. 4 Transcript 25 February 2003 p. 37. 5 [1975] 132 CLR 473 at 481. -- 5 of 12 -- How, if you don’t know the price of sapphires? - If it’s – the quantity and quality is such that it’s beyond – if the thing is running at – I’ve got to convert to grams. If it’s running at 130 grams to the cubic litre it will always be economic. Provided there’s a market for sapphires? - Yes. Right. If there’s no market for sapphires or the market falls out of sapphires, it won’t be economic. If you can’t sell your sapphires, you’re not going to get any money for it, are you? - That’s right.6” [17] I rely on what I said in Elliott v Hicks7. RA 1 is relevant to this application. [18] The evidence of the Applicant is that the land applied for contains the minerals sought by the application. Expert Saunders confirmed that sapphire, zircon and corundum are, in effect, the same mineral.8 I am satisfied, for the purposes of the mining lease application, that the Application is properly made out relating to recovery of the minerals sought in the application area. Exploration not mining [19] Mr Houen on behalf of the Objectors submits that the operations conducted by the Applicant are effectively exploration activities and not mining for the purposes of the Act. This is an issue which has recently been specifically considered by the Court of Appeal.9 I note that the Court of Appeals’ decision in Miles is subject to a special leave application to the High Court. Indeed, the Objectors sought to delay the proceedings in this matter in light of that special leave application10. As Mr Barlow pointed out in his submissions, the Court of Appeal decision in Miles is law and must be applied. I agree with Mr Barlow’s submissions. It is somewhat curious that at the same time as wishing to stay these proceedings because of the High Court special leave application in Miles, the Objectors through their agent, Mr Houen, also seek in submissions in this matter to highlight what they say are major differences between the two cases. In my view, the point of law is essentially the same. Any differences relating to the size of the application area or term of the lease are dealt with in reference to those specific criteria. [20] In my opinion, there is sufficient evidence of compliance with the provisions of the Act with respect to this Application. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [21] I rely on my comments with respect to criterion (a) above. In my view, the land applied for is mineralised and the purposes for which the mining lease 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 for the mineral resources within the area applied for? 6 Transcript 25 February 2003 pp 29-41. 7 [2001] QLRT 38 at pp 117-120. 8 See transcript 25 February 2003 p. 39. 9 See Armstrong & Anor v Miles & Anor [2002] QCA 504. 10 See [2003] QLRT 1. -- 6 of 12 -- [22] Whether there will be an acceptable level of development and utilisation is, in part, dependent on the size of the application area. Chief Justice Barwick considered the size of the application area in Sinclair v Mining Warden at Maryborough & Anor.11 In particular, he stated:- “To be told that, of an area of 320 acres, considerably less than sixty acres is mineralised, can in itself form no basis for a recommendation that a mining lease be granted for 320 acres.” [23] I further rely on the judgment of Deputy President Kingham of this Tribunal in Salmon v Armstrong.12 [24] In the present case, the evidence is that the Applicant believes that he will be able to disturb about 100 hectares within the 10 year period of the mining lease. This amounts to under 1/7th of the application area of 785 hectares. In my view, this is not an acceptable level of development and utilisation of the mineral resources within the area applied for. Although I understand the reasoning of the Applicant for an Application of this size and the submissions made by Mr Barlow with respect to this point, at the end of the day the area applied for is too large to allow proper utilisation of the land. In many respects, the area as applied for is more relevant to the much larger scale mining previously proposed, but later significantly reduced by the Applicant. In my view, the area should be reduced to 150 hectares. Such an area allows for an ample area of land for mining, with sufficient other land for related infrastructure. I will deal with this issue further under criterion (d). 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? [25] I have already found that the land is not of an appropriate size and shape in that the application area is too large to allow an acceptable level of development and utilisation of the application area by this Applicant within the term sought. The issue which next arises is what part of the application area should be included in the 150 hectares that I consider appropriate. [26] In Salmon v Armstrong,13 Deputy President Kingham, recommended that the surface area of that lease be reduced to 50 hectares, boundaries of which were to be set after consultation with the Applicant and to exclude any restricted land. In this matter, I sought submissions from Mr Houen and Mr Barlow as to whether I should make a similar order. [27] Mr Barlow, for the Applicant, submits that, if there is to be a diminished area recommended for grant, then orders should be made in similar terms to those in Salmon. Mr Houen in his submissions on this point says that the Tribunal may recommend grant or rejection of an application in whole or in part.14 He also submits that it would be inappropriate and a denial of natural justice if the Applicant were given the opportunity to select an area of land without the landholder having an opportunity to be heard on it. In my view, having heard all the evidence, it is appropriate that I should determine whether or not to recommend the grant of the 11 [1975] 132 CLR 473 at 480. 12 [2001] QLRT 72 at para 28. 13 [2001] QLRT 72. 14 Section 265(2) of the Act. -- 7 of 12 -- mining lease and, if I determine that the application should only be granted in part, to specify what part of the application area should be recommended for grant. Naturally, I do not have the assistance of survey or other information when making such a recommendation. [28] Accordingly, taking account of all of the evidence, the reduced area of 150 hectares that I consider appropriate for this mining lease application should commence along the western boundary of the application area and precede easterly until such time as a new eastern boundary (with the western, northern and southern boundaries remaining unchanged) creates an area of 150 hectares. For clarity, the balance of the application area, being 635 hectares, would all fall to the eastern side of the new eastern boundary as proposed by myself. Section 269(4)(e) – Is the term sought appropriate? [29] The term sought in the application for this mining lease is 10 years. Given the now proposed level of development of the lease area, and my view that the area be reduced in size to 150 hectares, and taking account of the objection in this regard, I am satisfied that a term of 10 years 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? [30] Part of Exhibit 1 details the net assets of the Applicant. He clearly appears to be in a financial situation which will support this project. His evidence is that he has access to relevant machinery. [31] The Applicant’s evidence is that he has 14 years experience in mining in and around the Emerald district. [32] I note that there is no specific ground of objection relating to this criteria. [33] I am satisfied that the requirements of this criterion are met. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [34] With respect to this criterion, I also rely on the evidence relating to s. 249(4)(f) above. [35] The Applicant’s sworn evidence 15 is that no enforcement action has been taken against him. Although the Applicant has not previously held a mining lease in his name, he has been operations manager with a local mining company. [36] Further, there is no material before me to indicate any unsatisfactory past performance by the Applicant. There are no grounds of objection which relate to this criterion. Although the Objectors did at one stage seek to amend their objections in this respect, they did not proceed with that application. I was not required to make any determination on it. During the hearing Mr Houen attempted to draw inferences 15 See Additional Information and Statutory Declaration of 27 May 2002, and Transcript, 25 February 2003 p. 29. -- 8 of 12 -- which simply could not be sustained considering the evidence in the matter relating to illegal mining by a Mr Richardson.16 [37] I find that the Applicant’s past performance has 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? [38] The Applicant held PP 71446. There is no relevant disadvantage to any other person. I note in particular the impact of RAI. Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [39] The Applicant’s evidence is that, whilst he acknowledges that the lease will impact the Objectors, he has said that the Objectors will always have the right to use the areas not being mined for grazing.17 MRA Objections 2 and 5 are relevant. [40] Mr Houen argues that, potentially, the Objectors must conduct their business as if the whole area of the mining lease will at all times be off limits to the Objectors, as he says that special conditions cannot be imposed. Mr Houen maintains this position despite previous rulings by this Tribunal.18 I again reject Mr Houen’s submissions. [41] On 27 February 2003, the Applicant filed an Affidavit in these proceedings. By that Affidavit, the Applicant provided the following consent:- “I consent to ML 70297 being recommended for grant, conditional upon: (a) the grazier having unfettered access to the whole of the surface area of ML70297, at all times; (b) at the grazier’s option, the treatment plant site and machinery site will be fenced off so as to exclude the grazier’s stock and prevent endangerment.” [42] Whilst I appreciate the Consent provided by the Applicant, in my view, part of it is too broad and, arguably, is inconsistent with the requirements placed on the Applicant under the Mineral Resources Act. There are certainly workplace health and safety concerns regarding the Consent in its current form. In my view, part (a) of the Consent should be limited so that it does not apply to the area of 10 hectares which the Applicant may significantly disturb at any one time.19 [43] It is my view that the proposed mining lease would conform with sound land use management if specified special conditions were included as conditions of the mining lease pursuant to s. 269(3) of the Act. [44] The special conditions that I consider necessary to meet the requirements for this criterion are as follows:- 16 See Transcript 25 February 2003 p. 8-17. 17 See Statement 27 July 2002. 18 See Barry v Barrett [2001] QLRT 54 at 32-36. 19 See Code of Environmental Compliance for Mining Lease Projects Part 2 page 7. -- 9 of 12 -- 1) Subject to any provisions relating to occupational health and safety, the holder of the lease shall at all times allow the landholder access to the land subject to the lease for the purpose of grazing and stockholding, save for the area of 10ha of the said lease subject to significant disturbance from time to time. 2) At the landholders’ written option, the treatment plant site and machinery site be fenced off to exclude the landholders’ stock and prevent endangerment. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof. [45] As with virtually any mining operation, there will necessarily be environmental impacts. I note the Draft Environmental Authority issued 8 April 2002 and the objection thereto. I will deal with this aspect further under the “Environmental Objection” part of these reasons. Section 269(4)(k) – Will the public right and interest be prejudiced? [46] By MRA Objection 4, the Objectors argue that the grant of a lease of this size would be against the public interest, particularly when related to what they call a lack of “economic resource”. The evidence shows that there are no public roads or other public utilities on the application area. Further, there appears to be no endangered flora or fauna within the application area. [47] In my view, the reduction in size of the application area to 150ha answers the concerns of this objection. [48] The evidence presented before me also shows that there are no identified sites of historical interest or Aboriginal significance within the application area. Specifically with respect to sites of indigenous significance, I also note the requirements of various enactments protecting cultural heritage and note the requirements on the Applicant pursuant to that legislation to protect any sites of indigenous significance should they be located during the mining operations. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [49] Arguably there are good reasons why this application should be refused. However, provided the special conditions as set out in this recommendation are included as conditions of grant and the application area is reduced to 150ha, it is my view that those concerns will have been satisfactorily answered. Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land? [50] MRA Objection 5 is relevant here. However, I can add little more to what I have already said regarding criterion (l) above. [51] There are two conflicting uses for this land. It is my view that, pursuant to the proposed special conditions, it is possible for both the mining and pastoral interests to co-exist. Environmental Objection -- 10 of 12 -- [52] A very pleasing aspect to emerge during submissions following the hearing of this matter was that the Applicant, the Objectors and the EPA reached agreement between themselves as to amendment of the Draft Environmental Authority. The agreed amendments to the Draft Environmental Authority relate to the following changes to the standard conditions:- Pits and Surface 35(AC) The holder of the Environmental Authority must rehabilitate areas disturbed my mining activities to a stable landform free of pits or depressions, similar to that of surrounding areas not disturbed by mining. Vegetation 35(AC) The holder of the Environmental Authority must establish vegetation of the same grass species and within the range of density of cover of that of the surrounding areas adjoining the mining lease not disturbed by mining. [53] Ms Lenz for the EPA in her submissions specifically brought to my attention that, whilst the EPA agreed to the amendment of the standard conditions, it did so for the purpose of this Application only in light of the evidence and special circumstances of this Application. The EPA submits that the amendments are not suitable for general application and I note that submission. [54] I congratulate the parties for the agreed outcome they have reached regarding the environmental objection. In particular, the Statutory Party, the EPA, played a very helpful role during the proceedings. I agree with the proposed amendments to the standard conditions. Recommendations [55] Taking into account all the evidence before me and, in particular, the evidence referred to above, I recommend to the Honourable the Minister for Natural Resources and Minister for Mines that Mining Lease 70297 be granted over an area of 150ha of the application area, as detailed in paragraph 28 of these reasons, for the purpose and term sought by the Applicant, provided that such mining lease is subject to the following special conditions:- 1. Subject to any provisions relating to occupational health and safety, the holder of the lease shall at all times allow the landholders access to the land subject to the lease for the purpose of grazing and stockholding, save for the area of 10ha of the said lease subject to significant disturbance from time to time. 2. At the landholders’ written option, the treatment plant site and machinery site be fenced off to exclude the landholders’ stock and prevent endangerment. [56] I further recommend to the Honourable the Minister for Natural Resources and Minister for Mines that the standard conditions of the Draft Environmental Authority be amended as follows:- -- 11 of 12 -- Pits and Surface 35(AC) The holder of the Environmental Authority must rehabilitate areas disturbed by mining activities to a stable landform free of pits or depressions, similar to that of surrounding areas not disturbed by mining. Vegetation 35(AC) The holder of the Environmental Authority must establish vegetation of the same grass species and within the range of density of cover of that of the surrounding areas adjoining the mining lease not disturbed by mining. -- 12 of 12 --