B & R Mining Pty Limited & Tasic, Re [2003] QLRT 3

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re B & R Mining Pty Limited & B Tasic [2003] QLRT 3 PARTIES: In the Matter of Mining Lease No. 95363 – Application by B & R Mining Pty Limited & Branislav Tasic for Mining Lease FILE NO: AML00109/2002 PROCEEDING: Application for mining lease DELIVERED ON: 30 January 2003 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers PRESIDING MEMBER: Kingham DP ORDER/S: 1. Hearing dispensed with. (at [3]). 2. Recommendation made that, subject to compliance with the pre-grant conditions of the ILUA, the Mining Lease is granted over the entire application area, for the purpose and for the term sought by the Applicants. (at [18]) CATCHWORDS: MINING – MINING LEASE – RECOMMENDATION – INDIGENOUS LAND USE AGREEMENT – PAST PERFORMANCE Mineral Resources Act 1989, ss 245, 252, 252A, 252C, 269(4), 270(1), 420 Native Title Act 1993 (Cth), ss 24CA to 24CL, 24EB COUNSEL: N/A SOLICITORS: N/A AGENT/S: N/A [1] KINGHAM DP: This is an application by B & R Mining Pty Limited and Branislav Tasic under s. 245 of the Mineral Resources Act 1989 (the Act) for a mining lease over a 16.72ha area of land at Canadians/Vergemont in the Barcoo Shire for the purpose of mining opal. The Application was lodged with the Mining Registrar for -- 1 of 5 -- the Winton mining district on 14 October 2002. No objection to the Application was lodged during the public objection period, which ended on 19 November 2002. The underlying tenure is a pastoral holding. [2] A number of events have affected this Application: • On 13 June 2002, the National Native Title Tribunal registered an Indigenous Land Use Agreement (ILUA) which covers the area applied for.1 That ILUA includes the parties’ consent to the grant of a mining tenure to a person who elects to become a “grantee party” to the ILUA.2 It provides that the right to negotiate procedure prescribed by the NTA does not apply to the grant of mining leases made in accordance with the ILUA;3 • The consent is subject to the grantee party fulfilling certain pre-grant conditions.4 As a condition of the consent to the grant, clause 9.5(a)(ii) of the ILUA requires compliance with Section 1 of the Native Title Conditions for Mining Claims and Mining Leases, set out in Part C of the ILUA. There is no evidence before the Tribunal regarding compliance with those conditions. Whilst it is not clear whether all pre-grant conditions have been fulfilled, this Tribunal has no role prescribed by the ILUA in supervising or enforcing pre-grant conditions; • The ILUA provides for the lease to be granted subject to certain post-grant conditions;5 • On 14 October 2002, the Applicants executed a Deed to become a “grantee party” under the ILUA.6 Accordingly, the native title provisions of the Act do not apply to this Application.7 Request to dispense with a hearing - Section 270: [3] I may dispense with a hearing if satisfied as to matters specified in s. 270(1). For reasons that follow at paragraph [5], 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 Applicants 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: [4] In taking account of and considering the criteria specified in s. 269(4), I have relied upon the Additional Information and Statutory Declaration of Bruce Jackson on behalf of the Applicants sworn on 28 November 2002 and a second statutory declaration sworn by Mr Jackson on the same day. I have also relied upon the other 1 The Winton ILUA – Maiawali and Karuwali People Q101/28 s. 24CA to s. 24CL NTA. 2 ILUA clause 9.5. 3 ILUA clause 5.3. 4 ILUA clause 9.5(a)(ii) and Section 1 of the Native Title Conditions for Mining Claims and Mining Leases. 5 Section 24EB NTA and ILUA clause 9.5 and s. 2 of the Native Title Conditions for Mining Claims and Mining Leases. 6 ILUA clause 1.15 (b). 7 Section 420. -- 2 of 5 -- material lodged by the Applicants 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? [5] On 15 October 2002, the Mining Registrar issued a Certificate of Public Notice.8 The Applicants lodged a Declaration of Compliance with the requirements for notifying the Application, within the time required.9 The Mining Registrar issued a Certificate of Application on 14 October 2002, which he can only do if satisfied that the Applicants are eligible to apply for the mining lease and have complied with the requirements of the Act with respect to the Application.10 Section 269(4)(b) - Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate? [6] The Application seeks the grant of a mining lease for the purpose of mining opal. The Directors of B & R Mining Pty Limited, Bruce Jackson and Raymond Jackson, are experienced opal miners and have mined opal in this district for some 10 years. Bruce Jackson attested to identifying surface trace on the lease area. It has been mined previously and the Applicants propose to rework the mined area. The area applied for is in a known mineral producing area and is in the vicinity of numerous other leases. An adjoining mining lease is held by Mr Tasic with Berryl Ann Tasic (ML 95280). 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? [7] Mr Tasic currently mines his adjoining mining lease (ML 95280). R & M Mining Pty Limited currently mines another lease approximately 7 kilometres east of the area applied for. The Applicants propose to work the latter lease in conjunction with this one. The Applicants own all the necessary equipment to mine in the manner proposed. 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? [8] The Applicants determined the boundaries of the lease on their assessment of the area of mineralisation based on surface indications. The shape of the southern boundary is determined by Mr Tasic’s adjoining mining lease (ML 95280). The Applicants have sought a mining lease over the entire surface area applied for. The area applied for does not exceed the maximum consented to pursuant to the ILUA.11 There is no evidence to indicate the size and shape is not appropriate. 8 Section 252A. 9 Section 252C(1). 10 Section 252(1). 11 Clause 9.5(a)(iv). -- 3 of 5 -- Section 269(4)(e) - Is the term sought appropriate? [9] The Applicants seek a term of 10 years. This is consistent with the consent provided for in the ILUA.12 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 own the necessary equipment for the mine and have sufficient financial resources to commence operations as soon as the lease is granted. The Jackson brothers have mined opal in the Winton mining district since the early 1990’s. Mr Tasic has mined gold, tin and opal for some 20 years. There is no evidence to suggest that the Applicants do not have access to the necessary financial and technical resources. Section 269(4)(g) – Has the past performance of the Applicant been satisfactory? [11] Bruce Jackson drew to the Tribunal’s attention that he was issued with a show cause notice for failure to lodge a royalty return in the 1994/95 financial year. The Mining Registrar has confirmed that the matter was resolved when the return was lodged. The Applicants have a long history of mining in this area and I do not consider the show cause notice issued to Bruce Jackson is sufficient reason to refuse this Application. 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 underlying exploration permit, EPM 11558, is held by Mr Tasic. 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? [13] The current land use is low intensity cattle grazing. There are a number of leases on this property. The landholders did not object to the mining lease. Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof: [14] The draft environmental authority was issued on 15 October 2002. It requires the Applicants 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. 12 Clause 9.5(a)(iii). -- 4 of 5 -- Section 269(4)(k) – Will the public right and interest be prejudiced? [15] 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? [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 considered in relation to criteria (i), (j), (k) and (l), I consider the proposed activity is an appropriate land use. Recommendation: [18] 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, subject to compliance with the pre-grant conditions of the ILUA, the Mining Lease is granted over the entire application area, for the purpose and for the term sought by the Applicants. -- 5 of 5 --