Bell v Unimin Australia Pty Ltd (No5)
[2013] QMC 7
•1 March 2013 with reasons provided 28 March 2013
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Bell v Unimin Australia Pty Ltd (No5) [2013] QMC 7
PARTIES:
GRAHAM BELL
(complainant)
v
UNIMIN AUSTRALIA LIMITED
(defendant)
FILE NO/S:
MAG245636/09(1), MAG245626/09(6)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint – No Case to Answer submission
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
1 March 2013 with reasons provided 28 March 2013
DELIVERED AT:
Magistrates Court at Warwick
HEARING DATE:
27 February 2013
MAGISTRATE:
Lee G
ORDER:
There is a case to answer
CATCHWORDS:
MAGISTRATES COURTS – JURISDICTION, PRACTICE AND PROCEDURE – summary trial – submission of no case to answer after close of prosecution case
Environmental Protection Act 1994, ss 18, 19, 146, 147, 427
Environmental Protection Regulation 1998, Schedule 1 ERA 20
Integrated Planning Act 1997, ss 1.3.2, 1.3.5, 4.3.1 & Schedule 8 Table 2
Mineral Resources Act 1989, ss 6, 6A, 234, 236, 319The following cases were cited:
May v O’Sullivan (1955) 92 C.L.R. 658
Re Clark, Bexton, Lane & Ors, Environmental Protection Agency [2005] QLRT 118
Unimin Australia Limited v State of Queensland [2009] QSC 384
Unimin Australia Limited v State of Queensland [2010] QCA 169COUNSEL:
R Devlin SC with R Byrnes for defendant
A Glynn SC with K Mellifont SC for complainant
SOLICITORS:
Sparke Helmore Lawyers for defendant
Litigation Unit, Department of Environment and Heritage Protection (formerly Department of Environment and Resource Management) for complainant
Unimin Australia Limited (Unimin) is charged with one offence under the Environmental Protection Act 1994 (EPA) and one offence under the now repealed Integrated Planning Act 1997 (IPA)[1] in respect of certain activities surrounding its mining operations on North Stradbroke Island.
[1] Repealed 18 December 2009 by the Sustainable Planning Act 2009 but section 831 of that Act provides that the IPA continues for current purposes;
A summary trial ensued and at the close of the prosecution case, on
27 February 2013 a no case to answer submission was made for Unimin. Written and oral submissions were considered. On 1 March 2013 I announced in court my conclusion that there was a case to answer on both charges and indicated that reasons would follow. These are my reasons.
The principles to be applied for such a submission have been clearly stated in May v O’Sullivan (1955) 92 C.L.R. 658 at 658[2]:
When, at the close of the case for the prosecution, a submission is made that there is “no case to answer”, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law.
[2] At para [20] submissions for Unimin dated 25 February 2013;
After amendment of dates, Unimin is charged as follows:
Complaint 1
On dates unknown on or between 18 November 2006 and 18 December 2008 at North Stradbroke Island …Unimin…did, in contravention of section 4.3.1. Integrated Planning Act 1997, carry out assessable development without an effective Development Permit for the development
PARTICULARS
1.Assessable development: Making a material change of use of premises for an environmentally relevant activity, namely extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year ….
Complaint 2
On dates unknown on or between 4 October 2004 and 18 December 2008 at North Stradbroke Island …Unimin …did, in contravention of section 427(1) of the Environmental Protection Act 1994, carry out a level 1 chapter 4 activity, not being a registered operator for the activity and not acting under a Registration Certificate for the activity
PARTICULARS
1.Level 1 chapter 4 activity: extracting sand (other than foundry sand) from a pit or quarry using plant or equipment having a design capacity of 100 000t or more a year
Further and better particulars of both charges were provided prior to trial[3]. The alleged contraventions were described as follows for both charges:
· In conjunction with the Defendant’s mining activity on Mining Lease 7064 between [various dates] AND
· In conjunction with the Defendant’s mining activity on Mining Lease 1108 between [various dates]
[3] Dated 23 November 2012;
For the IPA charge, the further particulars at [9], [11], [12] & [13] relevant to this application respectively are:
The assessable development consisted of a material change of use of land (Mining Lease 1108 and Mining Lease 7064) for Environmentally Relevant Activity 20.
The material change of use of land known as Mining Lease 1108 and Mining Lease 7064 was the continuation of Environmentally Relevant Activity 20 where there was no development approval for the activity and it was, at any time before 4 October 2004, carried out without an environmental authority as required under the [EPA]. (Applying definition 1.3.5(c) (ii) of the IPA).
The sand extracted is described variously as ‘B Grade sand’, ‘construction sand’, ‘building sand’, ‘B grade glass’, ‘brickies loam’, ‘sandy loam’, ‘reject sand’, ‘fill sand’, loam and/or ‘white sand’.
The pit/s and/or quarry/ies that the B grade silica sand was extracted from were those used by the Defendant to carry out mining activities on Mining Lease 1108 and Mining Lease7064
For the EPA charge, the further particulars at [2], [5] & [6] relevant to this application respectively are:
During the offence period, the level 1 Chapter 4 activity was Environmentally Relevant Activity 20, namely extracting sand (other than foundry sand) from a pit/s and/or quarry/ies using: (a) plant or equipment having a design capacity of 100 000t or more per year and/or (b) plant or equipment having a design capacity of between 5000 and 100 000t per year.
The sand extracted is described variously as ‘B Grade sand’, ‘construction sand’, ‘building sand’, ‘B grade glass’, ‘brickies loam’, ‘sandy loam’, ‘reject sand’, ‘fill sand’, loam and/or ‘white sand’.
The pit/s and/or quarry/ies that the B grade silica sand was extracted from were those used by the Defendant to carry out mining activities on Mining Lease 1108 and Mining Lease7064
There is no factual dispute over the evidence in this application. The process of Unimin’s operations as outlined in an agreed set of facts in Unimin Australia Limited v State of Queensland [2009] QSC 384 at [16] accord with the evidence before me in this trial[4]. Very briefly, the process starts with the removal of topsoil at the mine face followed by the extraction of an undifferentiated mass from the ground which is loaded into a hopper to remove organic objects. Water is then added to the sand to form a slurry which is pumped to a processing plant on its adjacent mining lease to undergo gravity separation resulting in the separation of high quality silica sand for glass manufacture, heavy metals, and reject material which has been called many things including B Grade sand[5]. They are stockpiled separately.
[4] Also at para [52] submissions for Unimin;
[5] See paras [12], [18], [62], [65] submissions for Unimin; para [15] submissions for prosecution;
The submission involves the interpretation of legislation in the light of the agreed facts with reference to various statements made in Unimin Australia Limited v State of Queensland [2009] QSC 384 and Unimin Australia Limited v State of Queensland [2010] QCA 169.
Section 4.3.1 IPA provided[6]:
[6] In Part 3 (Development offences, notices and orders) Chapter 4 (Appeals, offences and enforcement); taken from Reprint 10A (the last reprint before repeal);
4.3.1 Carrying out assessable development without permit
(1) A person must not carry out assessable development unless
there is an effective development permit for the development…Section 427(1) EPA[7] provides:
427 Only registered operators may carry out chapter 4
activities(1) A person must not carry out a chapter 4 activity, unless the
person is a registered operator for the activity or is actingunder a registration certificate for the activity…[7] In Part 1 (Offences relating to environmentally relevant activities) of Chapter 8 (General environmental offences);
For the EPA offence “Chapter 4 activity” is relevantly defined in Schedule 4 EPA as an “environmentally relevant activity” other than …a mining
activity …”. (my emphasis)
“Environmentally relevant activity” is defined in sections 18 & 19 EPA[8]:
[8] In Part 3 (Interpretation) Chapter 1 (Preliminary) EPA; inserted into the EPA by the section 4 Environmental Protection and Other Legislation Amendment Act 2000 (No 64 of 2000) since renumbered as per the Reprints Act 1992;
18 Meaning of environmentally relevant activity
An environmentally relevant activity is—
(a) …; or
(b) a mining activity as defined under section 147; or
(c) …; or
(d) another activity prescribed under section 19 as an
environmentally relevant activity.19 Environmentally relevant activity may be prescribed
A regulation may prescribe an activity, other than … a mining activity … , as an environmentally relevant activity if the Governor in
Council is satisfied—
(a) a contaminant will or may be released into the
environment when the activity is carried out; and
(b) the release of the contaminant will or may cause
environmental harm. (my emphasis)Environmental Protection Regulation 1989[9] made pursuant to section 19 EPA becomes relevant. Schedule 1 of those regulations defines Environmentally Relevant Activity 20 (ERA 20) as follows:
[9] These regulations were repealed and replaced by the Environmental Protection Regulation 2008 with effect from 1 January 2009 which is outside the charge periods;
20 Extracting rock or other
material—extracting … sand (other than foundry sand), …
from a pit or quarry using plant or equipment having a
design capacity of—(a) not more than 5000t a year . . . . . . . . . 2b
(b) 5000t or more, but less than 100000t, a
year . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(c) 100000t or more a year . . . . . . . . . . . . 1[10](emphasis in Unimin’s submissions)[10] For the purposes of these proceedings only Unimin has formerly admitted the design capacity of equipment was 100000t or more per year (exhibit 84);
Unimin also referred to sections 146 & 147 in Chapter 5 of the EPA entitled “Environmental authorities for mining activities”[11]:
[11] Inserted into the EPA by section 6 of the Environmental Protection and Other Legislation Amendment Act 2000 (No 64 of 2000) since renumbered as per the Reprints Act 1992;
146 Purpose of ch 5
(1) The purpose of this chapter is to provide for environmental
authorities for mining activities.
(2) An authority issued under this chapter for a mining activity is called an environmental authority (mining activities). (emphasis in Unimin’s submissions)
147 What is a mining activity
(1) A mining activity means an activity mentioned in subsection
(2) that, under the Mineral Resources Act, is authorised to
take place on—(a) land to which a mining tenement relates; or
(b) land authorised under that Act for access to land
mentioned in paragraph (a).
(2) For subsection (1), the activities are as follows—
(a) prospecting, exploring or mining under the Mineral
Resources Act or another Act relating to mining;
(b) processing a mineral won or extracted by an activity
under paragraph (a);
(c) an activity that—
(i) is directly associated with, or facilitates or
supports, an activity mentioned in paragraph (a) or(b); and
(ii) may cause environmental harm;
(d) rehabilitating or remediating environmental harm
because of a mining activity under paragraphs (a) to (c);
(e) action taken to prevent environmental harm because of an activity mentioned in paragraphs (a) to (d);
(f) any other activity prescribed for this subsection under a regulation. (emphasis in Unimin’s submissions)Reference was also made by Unimin to section 6A Mineral Resources Act 1989 (MRA):
6A Meaning of mine
(1) Mine means to carry on an operation with a view to, or for the
purpose of—
(a) winning mineral from a place where it occurs; or
(b) extracting mineral from its natural state; or
(c) disposing of mineral in connection with, or waste
substances resulting from, the winning or extraction.
(2) For subsection (1), extracting includes the physical, chemical,
electrical, magnetic or other way of separation of a mineral.
(3) Extracting includes, for example, crushing, grinding,
concentrating, screening, washing, jigging, tabling,
electrowinning, solvent extraction electrowinning (SX–EW),
heap leaching, flotation, fluidised bedding, carbon-in-leach
(CIL) and carbon-in-pulp (CIP) processing. …(emphasis in Unimin’s submissions)The parties have sought to rely on passages in the judgement of Applegarth J ([2009] QSC 384) and on appeal to the Court of Appeal ([2010] QCA 169). The definition of “mineral” in section 6 MRA was an important issue in those cases as to whether B Grade sand was a mineral for the purposes of the MRA:
6 Meaning of mineral
(1) A mineral is a substance—(a) normally occurring naturally as part of the earth’s crust;
or
(b) dissolved or suspended in water on or within the earth’s
crust; or
(c) that may be extracted from a substance mentioned in
paragraph (a) or (b).
(2) Subject to subsection (3), each of the following is a mineral—
(a) any type of clay;
(b) foundry sand;
…
(j) silica, including silica sand;
…
(3) Despite subsections (1) and (2)—
(a) …
(b) limestone, silica and silica sand is only a mineral if it is mined for use for its chemical properties; and
(c) …
(d) each of the following is not a mineral—
(i) soil, sand, gravel or rock (other than rock
mentioned in subsection (2)(k)) if it is to be used,
or to be supplied for use, as sand, gravel or rock, whether intact or in broken form; …
For the IPA offence “development” is defined in section 1.3.2(e) IPA as being, relevantly, “making a material change of use of premises”.
Section 1.3.5 IPA relevantly defines “material change of use of premises”:
material change of use, of premises, means—
...
(c) the continuation of an environmentally relevant activity
on the premises if—(i) … or
(ii) there is no development approval for the activity
and it was, at any time before 4 October 2004,
carried out without an environmental authority as
required under the Environmental Protection Act1994; or …
The meaning of “environmentally relevant activity” in the IPA imports the meaning in section 18 EPA[12].
[12] In Schedule 10 (Dictionary) IPA;
Schedule 10 (Dictionary) IPA defines “assessable development” relevantly as one listed in Schedule 8 Part 1 Table 2 of the IPA:
Table 2: Material change of use of premises
For an environmentally relevant activitya1 Making a material change of use of premises for an environmentally relevant activity, other than—
(a) a mining activity; or
(b) a chapter 5A activity; or
(c) a mobile and temporary environmentally relevant
activity; or
(d) an environmentally relevant activity, or aspects of
an environmentally
relevant activity, for which a code of environmental compliance has
been made under a regulation under the Environmental Protection Act1994; or
(e) in an urban development area. (emphasis in Unimin’s submissions)The definition of “mining activity” in Schedule 10 IPA imports the meaning in section 147 EPA.
Reference was then made to section 319 MRA to the effect that prescribed activities under the IPA do not apply to mining activities authorised under the MRA. Section 319 MRA provides[13]:
319 Effect on development
(1) Subject to subsections (2) and (3), the Planning Act does not
apply to development authorised under this Act.
(2) For administering IDAS for the Heritage Act, the Planning
Act applies to a Queensland heritage place under the Heritage
Act even if development of the place is authorised under thisAct. … (emphasis in submissions for Unimin)[13] In Part 8 MRA entitled “Relationship with Sustainable Planning Act 2009”; for the present case, the “Planning Act” was the IPA;
Unimin submits that now the court has heard all the evidence as to the processes by which the extraction of by product silica sand by Unimin was carried out, it is clear that all the sand was being “mined” as an “undifferentiated mass” from the initial digging out of the ground to and including the pumping of the slurry to its processing plant on an adjacent lease and its separation into glass grade sand, heavy metals and B grade sand.
This entire process, it is submitted, is a mining activity governed by Chapter 5 EPA and not an activity governed by Chapter 4 EPA. Section 427(1) EPA alleges a Chapter 4 offence. That being so, the use of the words in the particulars of “in conjunction with” is a fatal flaw in the prosecution case.
The argument continues that it is beyond power to prescribe a mining activity as an ERA under Chapter 4 EPA. Chapter 5 EPA deals with mining activity and that the whole process outlined above is mining activity. The collective effect of the above provisions is that if it is a mining activity it cannot be a Chapter 4 activity and there is no scope for an activity to have a “dual character” if it is a mining activity under section 147 EPA in Chapter 5 so that “[Unimin’s] right to deal with B Grade sand is beyond the ambit of the charges”.[14] It was submitted that this approach is consistent with the legislative intent that mining is governed by Chapter 5, and non-mining is governed by Chapter 4.[15] In support, references were made to the history of amendments to the EPA with the insertion of sections 18 & 19 EPA and Chapter 5 EPA in 2000[16] followed by amendments to Chapter 4 in 2003[17]. Apart from minor drafting changes, those provisions remain the same.
[14] Paras [18] & [64] submissions for Unimin;
[15] Paras [29], [34] & [35] submissions for Unimin;
[16] See paras [23] to [25] submissions for Unimin; and see Environmental Protection and Other Legislation Amendment Act 2000 (No 64 of 2000);
[17] See Environmental Protection Legislation Amendment Act 2003 (No 95 of 2003);
For similar reasons, it was also submitted that the IPA has no application to mining activity so that the mining activity outlined above was not an “assessable development”: section 319 MRA.
A similar submission was made in Unimin Australia Limited v State of Queensland [2009] QSC 384 where, among other things, Unimin unsuccessfully sought declarations in the Supreme Court that B Grade sand was a mineral in all cases. Unimin’s first contention described by Applegarth J at [3][18] was that all the sand mined (glass grade and B grade) is mined for its chemical properties and the B grade sand, a by-product produced as a direct consequence of winning the glass grade sand, means that B grade sand is also a “mineral” as defined in the Mineral Resources Act 1989 (MRA). In rejecting that submission Applegarth J reasoned at [30], [31] & ]32][19]:
[30] I accept the applicant’s submission that the focus of s 6(3)(b) is on the use for which the silica sand is mined by the applicant, not on the purpose of an eventual purchaser of any by-product of lawfully mined silica sand. However, the lawfulness of the mining operation in which an undifferentiated mass of silica sand is mined with a view to grading the silica sand into a portion that is suitable for use in glass manufacturing, and a portion that is not, does not mean that all of the silica sand that is extracted is a “mineral”. The terms and statutory context of s 6(3)(b) means that silica sand is only a mineral if it is mined for use for its chemical properties. On the agreed facts, not all of the silica sand that is mined is mined for use in glass manufacturing. Only that part of the silica sand that is subsequently graded as Glass Grade silica sand is mined for such a use. The balance, whether described as B Grade silica sand or by-product, is not mined for use in glass manufacture. The fact that the principal purpose of mining and treating all of the silica sand is to extract silica sand that is suitable for use in glass manufacturing does not alter this conclusion.
[31] At the time the silica sand is extracted from its natural state as part of the applicant’s mining operation, the applicant knows that part of the silica sand will not be suitable for use in glass manufacturing. The terms of the Act indicate that this sand is not a mineral unless it is mined for use for its chemical properties. The construction of the legislation for which the applicant contends would result in the applicant acquiring title to this “by-product” provided that some small part of the silica sand of which it originally formed part was suitable for use in glass manufacturing. This result would follow even where the Glass Grade silica sand constituted only a tiny fraction of the silica sand that was mined. Neither the terms nor purpose of the Act indicate an intent to define such a by-product as a mineral and for property in it to pass to the holder of the mining lease unless the by-product is mined for use for its chemical properties.
[32] I conclude that the principal purpose for which the undifferentiated mass of silica sand is mined, namely for use in glass manufacturing, does not mean that all of the silica sand, including the by-product or B Grade silica sand that is not suitable for glass manufacturing, is a mineral. The B Grade silica sand that is stockpiled at the end of the applicant’s mining operation will be a “mineral” if it is mined for use for its chemical properties and if s 6(3)(d)(i) does not apply to it. It does not qualify as a mineral because earlier in the mining operation it formed part of an undifferentiated mass of silica sand that included Glass Grade silica sand. (emphasis in complainant’s submissions)
[18] Applegarth J described this as the “by-product issue”;
[19] Confirmed on appeal [2010] QCA 169;
Unimin said that while Applegarth J in Unimin [2009] QSC 384 found that
B Grade sand was not a “mineral” as defined, he did not find that it “was not mined”[20] and it follows, it was submitted, that if B Grade sand was produced from the one continuous operation from mining the undifferentiated mass out of the ground, it was mined so that it is a Chapter 5 EPA activity and not a Chapter 4 EPA activity. Passages at paras [122] & [123] of Applegarth J’s judgment were cited in support of this contention:
[122] Chapter 5 of the Environmental Protection Act 1994 complements Part 7 of the Mineral Resources Act 1989 and regulates the grant of environmental authorities for “mining activities”. The structure of the Environmental Protection Act 1994 is such that, if the activity is a mining activity, then an environmental authority pursuant to Chapter 5 is required.[73] The environmental authority is the regulatory document.[74]
[123] These environmental authorities do not purport to address title to property in minerals or waste substances. They authorise and regulate mining activities.
[20] Paras [49] to [
The footnote to paragraph 122 (no 73) was particularly relied on:
If the activity is not “mining activity”, however, it is extractive activity or mineral processing under Schedule 2 of the Environmental Protection Regulation 2008.
It should be observed that those passages came from that part of Applegarth J’s judgment[21] in considering what he described as the “passing of property issue” defined at [6] as:
Can and does any condition of the leases, or any environmental authority, of any provision of the MR Act or any other Act operate such as to pass property to Unimin in respect of anything other than what constitutes ‘a mineral’ for the purposes of s 6 of the MR Act?
[21] From paras [104] to [124] of the judgement;
Applegarth J answered that question in the negative at [124]. Thus, the focus of those passages was in the context of the passing of property and not whether Unimin’s operations had a dual character requiring a separate authorisation. In my opinion, those passages are simply saying that if it is “mining activity” as defined in section 147 EPA, then an environmental authority under Chapter 5 EPA is required and if it is not, then it is extractive activity governed by Chapter 4 and the regulations. It is not authority for the proposition that if it is a mining activity, it cannot concurrently be a Chapter 4 activity. It appears the “passing of property issue” was not a ground of appeal in the Court of Appeal.
In further support of the submission, the following passages were cited by Unimin from the Court of Appeal under the heading “Ground 1: the Judge’s differential assessment of mining of the “undifferentiated mass”[22]:
[20] All of the sand, embracing the glass grade sand and the B grade sand, is “mined” within the meaning of s 6A, because it is won or extracted from the place where it occurs. The question the primary Judge answered in the negative was: is the component of B grade sand mined for its chemical properties?
[21] On the basis of the facts agreed before His Honour, [Unimin] knows that it is mining both glass grade and B grade sand. It must mine the latter in order to recover the former. It then turns the latter to a worthwhile commercial use.
[24] In any case, the mining operation, as defined by s 6A of the Act, extends to the separation of the two grades of material. Sub-section (2) provides that the extraction includes the “separation of a mineral”: on His Honour’s approach the separation of the glass grade silica sand from the B grade silica sand and other material. (emphasis in submissions for Unimin)
[22] [2010] QCA 169; De Jersey CJ wrote the judgment with Chesterman JA and Atkinson J agreeing;
Ground 1, it will be recalled, was described by Applegarth J as the “by-product” issue[23]. The focus of that discussion was whether B grade sand was automatically a “mineral” because it was obtained as a direct result of winning the higher purity sand from the undifferentiated mass. Applegarth J at [30] agreed that it is the use for which silica sand is mined for the purposes of section 6(3)(b) MRA and not the purpose of the eventual purchaser of any by-product. However, he said the lawfulness of the mining operation resulting in the by-product “does not mean that all of the silica sand that is extracted is a mineral”. Thus, it was submitted for Unimin, the question of intent is only relevant as to whether the by product is a mineral, not whether it was mined[24].
[23] At paras [3], [28] to [32] of the judgment;
[24] At paras [45] to [53] submissions for Unimin;
It was submitted for Unimin that the factual circumstances of this case are distinguishable from that in Re Clark, Bexton, Lane & Ors, Environmental Protection Agency [2005] QLRT 118 where, unlike here, there were two distinct operations on the same site although at different times ie mining and quarrying. A central question was whether these two activities fell within the definition of “mining activities” in section 147 EPA. In order to mine the sandstone in block or slab form (meeting the definition of “mineral” in the MRA) the miner had to remove or “quarry” the overburden to reach the sandstone. Kingham DP (as she then was) found that while these activities were associated, the quarrying was not a necessary precursor to the mining so that if the overburden was removed from the mining lease and sold (at paras [7] & [8]), the proposed activities would fall within the descriptions of the ERA’s thus falling outside the definition of “mining activity” in section 147 EPA (at paras [10] – [12]]).
The submissions concluded that as the entire process of extracting the undifferentiated mass from the ground to separating out glass grade sand and B Grade sand was mining activity, Unimin held the appropriate authorities under Chapter 5 EPA and was not carrying out an extractive activity prescribed by section 19 EPA requiring an additional permit. Further, it was submitted that Unimin’s mining activity was not assessable development under the IPA and that the IPA does not apply by virtue of section 319 MRA.
On the other hand the complainant’s case is that, as a matter of law, the said process has a dual character of being a mining activity and a Chapter 4 activity. The meaning of “mine” in section 6A MRA is expressed broadly and does not exclude the “concurrent removal of mineral and non-mineral sand” from an undifferentiated mass. To “mine” in section 6A MRA simply means “to carry on an operation with a view to, or for the purposes of” winning mineral. This encompasses the winning of a mineral and non-minerals “perceived to be of commercial value” from the process employed by Unimin from an undifferentiated mass. It was submitted that Applegarth J and the Court of Appeal also came to that conclusion[25].
[25] Paras [21], [26] & [27] submissions for the complainant;
In section 147 EPA “mining activity” includes an activity that is “directly associated” with or “facilitates or supports” such activity but only where it “may cause environmental harm”: section 147(2)(c). However, those activities must be in respect of mining or the processing of a mineral “under the [MRA]”: section 147(2)(a) & (b). So, if there exists an activity that is not “under the MRA” and which may cause environmental harm, this is not within the ambit of section 147 and Chapter 5 EPA. I accept the submissions for the prosecution that the legislative scheme must contemplate activities that are associated with, or facilitates or supports an activity in section 147(2)(a) and (b) that is not a mining activity. Such activity may be a Chapter 4 activity[26].
[26] Para [9] submissions for the complainant;
The prosecution submits that the evidence is that there was the extraction of more than 1500 m3 of undifferentiated mass involving a land area of more than 5200 m2 and that this falls outside the non-primary purpose limited amount exception in the definition of “extracting” in the Environmental Protection Regulation 1998. Thus the process adopted was both a Chapter 4 activity (ERA 20) and a mining activity. It is also the case for the prosecution that B Grade sand was not merely extracted as a by-product, but was, at the time of extracting the undifferentiated mass from the earth, intended by Unimin to be used for non-mineral use[27].
[27] Para [23] submissions for the complainant;
For ERA 20, “extracting” is defined in the Environmental Protection Regulation 1998:
extracting, for schedule 1, item 20, does not include—
(a) extracting material from land if—(i) the primary purpose of the extraction is not to gain
the material; and
(ii) less than 1500m3 of materials is extracted or the
surface area of the land is less than 5200m2; or
(b) extracting material in the course of cutting and filling
land for constructing a road or railway; or
(c) extracting material from a road reserve under the Land
Act 1994 if—(i) the material is to be used for constructing or
maintaining a road; and
(ii) less than 5000t of material is extracted in the
relevant year.
The crux of the prosecution’s case is that an activity can only be a mining activity under section 147 EPA if it is a mining activity “under the [MRA]”: section 147(1). This is reinforced in section 147(2)(a) where it refers among other things to a mining activity “under the [MRA]’. So, if it is not a mining activity under the MRA, it is not a mining activity under section 147. The fact that Unimin’s operation as outlined in the facts above may constitute mining in a more general sense, it does not necessarily fall within the section 147 EPA definition of “mining activity”.[28] In this case, it depends on whether the material “mined” is a “mineral” as defined in section 6 MRA. Applegarth J and the Court of Appeal concluded that B Grade sand sold to landscapers is not a “mineral”. Indeed, this was the crux of the matter before Applegarth J where he said a [7]:
[7] The practical difference of the resolution of these issues is that a determination that B Grade silica sand is a “mineral” within the meaning of s 6 of the MR Act, and may lawfully be sold, is that there is no requirement for a permit for extraction or other permits and approvals under the [IPA] in respect of the mining, treatment and sale of B Grade silica sand.
[28] Paras [5] & [6] submissions for the complainant;
Part 7 MRA entitled “mining leases” governs the issuing of mining leases. Section 234 MRA provides that the Minister may grant a mining lease to mine minerals. “Mineral” is defined in section 6 cited earlier. Section 236(1) MRA provides for limited authority on the holder of a mining lease to use “any sand” on the mining lease area for a purpose authorized by the mining lease provided royalties are paid.[29] Section 236(2) provides an exemption of the holder of a mining lease in those circumstances from the requirements of any other Act except the EPA. Section 236(3) deems such material to be a mineral for the purposes of royalties even if it does not fall within the section 6 definition. It follows that if the B Grade sand is taken off Unimin’s mining lease and sold for a use so as not to fall within the definition of “mineral”, this is not authorised by the MRA, is not exempt, and is not an activity under the MRA.
[29] Governed by Part 9 MRA;
While not canvassed in submissions, I also note that when sections 18 & 19 EPA were inserted into the EPA in 2000, that same amending Act also inserted section 23 entitled “Relationship with other Acts” (formerly section 20) to the effect that the EPA is “in addition to, and does not limit, any other Act”. This supports the view that the MRA applies as to the requirements of granting mining leases for the mining of “minerals” as defined in section 6 therein which in turn governs the scope of “mining activity” in section 147 EPA to be a mining activity “under the MRA”. If not, the activity is not a “mining activity” within section 147 EPA.
In this context, Chief Justice de Jersey, who wrote the judgment of the court in the Court of Appeal stated at [4]:
The principle issue before the learned primary judge was whether the lower grade sand is a “mineral” within the meaning of the [MRA]. If it is then, as with the higher purity sand, it may be extracted without the need for permits and approvals under the [IPA] (now the Sustainable Planning Act 2009 (Qld)), and lawfully sold; if not, the contrary position applies.
I do not agree with submissions for Unimin that the second sentence in that quote is unclear[30]. It means what it says. It was suggested that the prosecution’s submissions do not deal with paragraphs [20], [21] & [24] of the Chief Justice’s judgment[31]. However, as I have said before, while Unimin’s operations may constitute mining in a general sense, they do not necessarily constitute “mining activity” in section 147 EPA. Whether or not it is “mining activity” depends on whether the B Grade sand is a “mineral”. I agree with the prosecution’s submissions that this “demonstrates the relevance of purpose …at the time of extraction”.[32] It is the prosecution’s case that, at the time of extraction of the undifferentiated mass from the earth, B Grade sand was intended by Unimin for non-mineral use[33]. In this respect, at paragraph [22] of the judgment in the Court of Appeal, in referring to “At that time” being the time of extracting the undifferentiated mass from the earth, de Jersey CJ observed[34]:
[22] While the separation of the B Grade from the glass grade occurs subsequently to the “dry mining” operation, it is not right to say that at the earlier time [Unimin] intends all of the sand to be used in the manufacture of glass. At that time, [Unimin] knows that a portion of the sand won will not be used in the manufacture of glass, but in the production of mortars and renders.
[30] Para [2] submissions for Unimin in reply;
[31] Para [10] submissions for Unimin in reply;
[32] Para [7] submissions for the complainant;
[33] Para [13] submissions for the complainant;
[34] See also para [28] of the judgment to similar effect;
The dual character of Unimin’s process is also supported by Applegarth J’s consideration of what he described as the “sand issue” in the context of the section 6(3)(d)(i) MRA definition of mineral. At [97] he said this[35]:
[97] Section 6(3)(d)(i) may be said to reflect the broad divide between the regulation of mining and the regulation of extractive industries. A provision in similar form was introduced into the MR Act as s 1.8. The Explanatory Memorandum to the legislation stated:
“There has been no provision made to declare any other substance such as sand, gravel etc to be minerals. However, the legislation provides that the holder of a mining lease is entitled to utilise any sand, gravel or rock occurring in or on the mining lease for purposes associated with the mining operation. It cannot be sold or disposed of. The extraction and disposal of other materials such as sand, gravel and rock on mining leases is a matter requiring the necessary permit from the relevant authority as would be the case if the material was being extracted from other land …” (emphasis added)
[35] Footnote 56 in that judgment provided that the Explanatory Memorandum to the original MR Bill was attached to the report of an expert which Applegarth J adopted as will I. Inquires were made of the Supreme Court library but no Explanatory Memorandum to the original MRA was found;
Apart from some drafting changes, the definition of “mineral” as it applies to sand has remained the same in the MRA.
Further, I agree with the submissions for the prosecution that section 319 MRA is directed to a process “to the extent it is authorised as a mining activity under [the MRA]” where it says that the IPA “does not apply to development authorised under [the MRA]”. That section does not restrict or affect the ability of a process being dual in character requiring the requisite approval under the IPA in circumstances where non-minerals are removed and sold off site[36].
[36] Para [8] submissions for the complainant;
Finally, I note that Unimin unsuccessfully sought four declarations in the Court of Appeal set out at paragraph [8] of the judgment. Relevantly, one of those sought was:
(d) carrying on the activity of mining and disposal of silica sand by [Unimin], comprised in part of lower B Grade silica sand, is lawful and does not require any further approvals under the [IPA] and nor a registration certificate under the [EPA]
Conclusion
For the above reasons, I am of the view that a process can be a mining activity and a Chapter 4 activity. There is a case to answer in respect of both complaints.
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