Doktor, Re [2003] QLRT 30

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Jaroslav Doktor [2003] QLRT 30 PARTIES: In the Matter of Mining Lease 95318 – application by Jaroslav Doktor for Mining Lease FILE NO/S: AML00025/2001 PROCEEDING: Application for mining lease DELIVERED ON: 19 March 2003 DELIVERED AT: Brisbane HEARING DATE: 29 March 2001 PRESIDING MEMBER: Kingham DP ORDER/S: 1. Recommendation made that ML 95318 be granted over the entire application area, for the purpose sought by the Applicant. (at [16]) 2. Recommendation made that the lease be granted for a term of 5 years, not the term sought by the Applicant (at [7] & [16]) CATCHWORDS: MINING – MINING LEASE – SUBSTANTIAL COMPLIANCE – RECOMMENDATION – TERM OF LEASE Mineral Resources Act 1989, ss 252(1), 269(4), 286, 392, 422, 657 Environmental Protection Act 1994, s. 591 COUNSEL: N/A SOLICITOR/S: N/A AGENT/S: N/A [1] This is an application by Jaroslav Doktor under section 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 10.62ha area of land on Flodden Hills holding in the Opalton Mining Field for the purpose of mining opal. The Application was lodged with the Mining Registrar for the Winton mining district on 22 August 2000. No objection to the Application was lodged during the public objection period, which ended on 21 September 2000. The Application was heard in Winton on 29 March 2001, Mr Doktor representing himself. The underlying land tenure is -- 1 of 4 -- “non-exclusive” land and the native title provisions of the Act applied.1 The hearing in Winton was adjourned to enable the Applicant to fulfil the requirements of the native title provisions of the Act. On 12 March 2003, Mr Doktor lodged an advice with the Mining Registrar stating that there are no registered native title parties or entities that may become registered. That ends the additional native title requirements and there is no impediment to the Tribunal making its recommendation.2 Section 269(4) criteria: [2] In taking account of and considering the criteria specified in s. 269(4), I have relied upon the evidence given personally by Mr Doktor and upon exhibits filed during the hearing. 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? [3] On 23 August 2000, the Mining Registrar issued a Certificate of Application. Pursuant to Section 252(1) of the Act, the Mining Registrar can only do so 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. Mr Doktor’s Declaration of Posting and Advertising certified compliance with the requirements for notifying the Application. It was lodged within the time required by s. 252(10) of the Act,3 but was subsequently amended to include further information and re- lodged. I accept this as substantial compliance with the requirements of the Act.4 There is no reserve or restricted land involved. Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [4] The Application seeks the grant of a mining lease for the purpose of mining opal. Mr Doktor is an experienced miner of opal and has worked in the mining industry for approximately 30 years. The area applied for is in a known mineral producing area and incorporates an area previously worked, on the Applicant’s estimate, some 25 years ago. The Applicant has identified floaters on the surface that he says is indicative of a reef. On the basis of this evidence, I am satisfied that the area is 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? [5] Mr Doktor proposes to mine using a system of trenching to locate a viable resource and opencut excavation once it is located. He intends to sell the opal both cut and rough, the better quality opal to be sold cut to increase the price. Mr Doktor will engage an opal cutter to do this for him. This is the way in which Mr Doktor has marketed his product from previous mining leases. I am satisfied that there will be an acceptable level of development and utilisation of the mineral resource in the area. 1 Section 422. 2 Section 657. 3 Since amended. 4 Section 392. -- 2 of 4 -- 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? [6] Mr Doktor determined the boundaries of the lease on his assessment of the area of mineralisation and the direction in which the reef trends based on surface indications from the presence of floaters. 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? [7] The Applicant has sought a term of 20 years. He expects to exhaust the resource within the mining lease area within that term. I note that the Applicant is 66 years of age. The Applicant intends to mine himself and does not intend to engage contractors. It is unlikely that he will be in a position to mine this resource for the full term. The Applicant gave no evidence about what he intends to do with the lease when he is unable to continue working it. In the circumstances, I am not satisfied that the term applied for is appropriate and recommend that the Minister consider a term of 5 years. I note that the lease will not be worked for some 4 to 5 months of the year due to seasonal conditions. I also note that, should the resource not be exhausted within the recommended term the Applicant can apply to renew the lease.5 Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? [8] The Applicant has worked in the industry for some 30 years. He claims to have extensively prospected much of the area currently under opal mining in the district and has operated other mines, “Anzac Hill” and “Jerry’s mine”. He will work the mine personally. Whilst he does not personally own the necessary equipment for opencut mining, he will enter an arrangement with the owner of such equipment to undertake work on the mine for a percentage of the product. This is not an unusual arrangement on this opal field. Section 296(4)(g) – Has the past performance of the Applicant been satisfactory? [9] The Applicant mined “Jerry’s mine” for approximately 3 years, 13 years ago. He worked “Anzac Hill” mine for 3 to 4 years, 10 years ago. There was no evidence before me to suggest unsatisfactory past performance by the Applicant. Mr Doktor stated that he had received no notices regarding non-compliance and has not been convicted of any offences in relation to mining. Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permit or mineral development licences or existing applicant for exploration permits or mineral development licences? [10] Mr Doktor holds the only existing exploration tenure and there are no applications for exploration tenures that would be affected by the grant. 5 Section 286. -- 3 of 4 -- Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management? [11] The current land use is sparse cattle grazing. There is no water in the area applied for. The terrain is not suitable for agricultural purposes and is sparsely vegetated. The potential impact on existing operations was obviously considered minimal by the landowner, who has agreed to minimal annual compensation for the mining activity. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [12] Mr Doktor lodged an Environmental Management Overview Strategy (EMOS). An environmental authority has been issued to take effect upon the grant of the mining lease, which requires Mr Doktor to conduct his operations in accordance with the EMOS.6 The trenches and opencut mine will be progressively backfilled with overburden and spread with stockpiled topsoil and will be stabilised by re- establishing native vegetation. No water will be used in the operation and no mine waste produced. Explosives will not be used. The closest residence is approximately 40kms away and is currently uninhabited. I am satisfied that the commitments in the EMOS are appropriate to minimise environmental impacts. Section 269(4)(k) – Will the public right and interest be prejudiced? [13] There was no evidence before me that indicated the public right and interest would be prejudiced. There is no public infrastructure that will be affected by the operation. It is significant that there was no objection to this Application. It is also significant that the Applicant has already reached a compensation agreement with the landholder. Section 269(4)(l) – Has any good reason been shown for a refusal to grant mining lease? [14] 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? [15] 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. Recommendation [16] 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 Minister for Mines that ML 95318 be granted over the entire application area, for the purpose sought by the Applicant and for the term of 5 years. 6 Section 591 Environmental Protection Act 1994. -- 4 of 4 --