Carter v McEvoy
[2011] QLC 63
•23 September 2011
LAND COURT OF QUEENSLAND
| CITATION: | Carter v McEvoy & Anor [2011] QLC 0063 |
| PARTIES: | James Henry Carter (applicant) |
| v. | |
| Darryl James McEvoy and Michael Edward McEvoy (objectors) | |
| FILES NO: | MRA 408-09 |
| DIVISION: | General |
| PROCEEDING: | Hearing of objections to grant of a mining claim. |
| DELIVERED ON: | 23 September 2011 |
| DELIVERED AT: | Brisbane |
| HEARD AT: | Mackay |
| MEMBER: | His Honour, Mr PA Smith |
| ORDER: | 1. The mining registrar, Emerald, is instructed to reject the application for mining claim 72034. 2. Should the landholders seek any award as to costs, they are to file and serve submissions seeking same by 4.00 pm 17 November 2011. The applicant may file and serve submissions in response by 4.00 pm 1 December 2011, and the landholders may file and serve any submissions in reply by 4.00 pm 8 December 2011. |
| CATCHWORDS: | MINING CLAIM – HEARING OF OBJECTIONS – evidence of illegal mining activities – whether sufficient grounds to reject the application – Mineral Resources Act 1989, s.78 |
| APPEARANCES: | McCullough Robertson, lawyers for the applicant. Mr D McEvoy, self-representing for himself and his brother M McEvoy initially, subsequently instructed Macrossan & Amiet, solicitors. |
Background
On 5 May 2009 James Henry Carter (the applicant) lodged an application pursuant to s.61 of the Mineral Resources Act 1989 (the MRA) for mining claim 72034. The applicant seeks to mine silver, gold, lead, zinc, manganese and copper on the mining claim for a term of 10 years. The mining claim is located on a property 14 kms west of Eungella. The land over which the mining claim is proposed is a pastoral holding owned by Darryl and Michael McEvoy (the landholders). The landholders have lodged objections to the grant of the mining claim.
The Hearing
The matter has had a difficult progress. It was initially one of a number of mining claim applications in the same area and the Court attempted to commence hearing of those claims in 2009 and attended Mackay for the purpose of conducting those hearings and conducting an inspection of the subject property. The inspection took place with the full knowledge of the applicant who, at late notice, advised the Court that illness would prevent his attendance. One of the other applicants for another mining claim who is an associate of the applicant did attend for the first part of the inspection but he withdrew from the inspection at an early point. Accordingly, regrettably, the bulk of the inspection took place without the applicant or one of his associates being present. No evidence was taken at the inspection which was a view only. Neither the applicant nor his solicitor took any objection to the Court having had the opportunity of inspecting the property when this matter ultimately came on for hearing. In short, the Court undertook its best endeavours to ensure that the mining applicants were present at the inspection which occurred in a relatively remote location, not easily accessed by the Court. Having heard all of the evidence in this matter, I am clearly of the view that the inspection merely confirms the evidence given by all parties. There is nothing that I saw on the view which in my opinion conflicts with the evidence given by both the applicant or Mr McEvoy.
At the hearing of this matter, which was held in Mackay, evidence was given by the applicant Mr Carter and by Mr D McEvoy. Mr McEvoy was self-represented at this point whilst Mr Carter was represented by Ms Hall, a solicitor with the firm McCullough Robertson, lawyers. Due to certain complexities that arose during the hearing, a substantial time period was allowed to the parties to make written submissions to the Court, particularly relating to the status of a “road reserve” over the subject pastoral property which is required for access to the mining claim area. The landholders subsequently engaged Messrs Macrossan & Amiet, solicitors to represent them in this matter and to provide the written submissions to the Court.
The Objections
The objections in this matter are relatively short and succinct. They are in the following terms:
“1. Mr Carter has been mining on our land for the past 20 years without legal documentation.
2.At no time has Mr Carter been given permission to enter the said land by either Darryl or Michael McEvoy.
3.Mr Carter has never to our knowledge abided by conditions (d) & (i) as set out by the ‘Parcel Prospecting Permit #73428 for the purpose of pegging.
4.Mr Carter has acquired a key to the locked gate at the start of the land by Mr/s McEvoy. Once they have these keys the keys are passed between friends and this allows even more people access to our land.
5.Rubbish left behind gives the impression of the Local Council Tip. The clearing of this rubbish will cost ourselves thousands of dollars as well as the environmental aspect of disposing of the clutter.
6.Mr Carter has a camp close to the last permanent water on Bee Creek. When he camps the cattle have to move on and the only access to water is through steep rocky country. In drought times the weak cattle often lose their footing in the steep country trying to access water.
7.The presence of the miner makes it near impossible cattle.
8.For the entire time he has been using the road he has never done any road maintenance.”
The Evidence
As previously indicated, the evidence in this matter was provided by the applicant Mr Carter and one landholder, Darryl McEvoy. This is a case where the true character of the evidence can be gleaned from extracts from the oral evidence, both during examination-in-chief, cross-examination and re-examination. I will let the witnesses speak for themselves.
Evidence of Mr Carter
Relevant extracts of the evidence of Mr Carter are as follows:
“Actually there's no mullock around the mines where I've been working because all the mullock goes on to the road to - as repairs, tonnes of it.
So the results of your mining activities in the past have been used as road fill to help maintain the road; is that correct?‑‑ Yes. And - and older stuff that's been there from previous mining; I've used it to fill in the - in the wash-outs in the road.”[1]
[1] Transcript (T) p.1-44.
“What time - approximately when did you first come into the - onto the property?‑‑ Um, 1987.
About 1987?‑‑ Yes.
Okay. And why did you go there?‑‑ Because the - the claim that Marriage has had wasn't being worked at the time. He had abandoned it and he said I could work it if I wanted to.”[2]
[2] T. p. 1-45
“Have you previously taken any mineral from the area in general?‑‑ No, no‑‑‑‑‑
No. So you've‑‑‑‑‑?‑‑ ‑‑‑‑‑I haven't processed any either.
Okay. So you haven't taken any mineral from there and you haven't processed anything there either. Okay. Have you won any gold from the area?‑‑ No.”[3]
[3] T. p. 1-46.
“you said you went there in 1987 - from then till now, how many years have you been legal?‑‑ Oh, probably only the - the three years that the Marriage claim was registered.”[4]
[4] T. p. 1-46.
“Oh, well, did you ever get permission off me to enter the land?‑‑ No.”[5]
[5] T. p. 1-47.
“do you admit to putting the rubbish there?‑‑ Only some of it, not all of it.
Well, could you tell me who put the rest of the rubbish there?‑‑ Well, this camp that you talk of near the Bee Creek, the Hans's camp, all their stuff was still there when I arrived.”[6]
“didn't youse buy the Hans camp?‑‑ Yes.
Well, didn't you buy the rubbish with it or just the camp?‑‑ Just the camp. I didn't buy the rubbish. I just bought the camp.
Well, didn't the rubbish go with the camp?‑‑ I suppose it would have done.”[7]
“Well, when you got your - when you got your pegging permit, like, by that time I'd have assumed that you'd get up with the system, like, you couldn't - you can't sort of say that you don't know. Why didn't you abide by the - the rules in your pegging permit?‑‑ Well, that was okayed by the Mining Inspector because he came out to check on them.
Yes, but he also sent you a piece of paper with a heap of conditions on it?‑‑ Yeah, well, I complied to those conditions.
I don't think so, Jim, because as I read them out - as I read them out this morning, it says that you must give me five working days notice, you must get permission off - off me in writing. Like, did you read those conditions?‑‑ Obviously not.”[8]
“In relation to the pegging permit, did you get permission to go onto the land to peg the claim?‑‑ No.
Okay. Did you get - who told you to go on the land to peg the claim?‑‑ The mining inspector gave me all the information.
Okay. So the mining inspector said to go onto the land to peg the claim?‑‑ Yes.”[9]
[6] T. p. 1-47.
[7] T. p. 1-47.
[8] T. p. 1-49.
[9] T. p. 1-53.
Evidence of Mr McEvoy
The evidence of Mr McEvoy is relevantly as follows:
“Mr Carter says he's been there for - since - since the mid 1980s, and in that time how many years has he been legal? And I'd also - I'd also like to know how did he ever get permission to get down there. It says here that he got permission through a Mr
Ted Bemenuti and he took over the - the Marriage claim. It also mentions Hans' claim. Well, to my knowledge Mr Bemenuti wasn't legal and Mr Hans wasn't legal and as for saying it's - and I think Mr Marriage was legal but he never ever got permission off me to get onto the property. I don't know where he got his permission from and I don't know where he got his keys from.”[10][10] T. p. 1-7.
“He certainly didn't get permission off me or a key from me. And as for saying it's been a mining lease for 130 years, there is - I've been going there since I was 10 year old, mustering cattle, which is 56 years ago and all there's ever been was a couple of old fence posts and a couple of fire places and a couple of shallow holes, where mining was done in the 1980s. But from that time on, there was no miners there. When I first went there, there was no sign of a miner there. The miners never went there, I mean Mr Carter, Mr Hans, Mr Marriage, Mr Bemenuti, none of them went down there till I pushed a road down there.”[11]
[11] T. p. 1-8.
“And I'd also like to know there's other - there's other - why Mr Carter, he hasn't even abided by the - by the laws in his pegging permit. He's been issued a pegging permit and it says in the pegging permit, "Prior notice of entry to be served at least five business days or a shorter period." Anyway, it's all about getting permission and over the next one it says, "He must have written permission." Well, even after - after they've been sprung for illegal mining, and told to do it right, they still haven't bothered to abide by their conditions.”[12]
[12] T. p. 1-8.
“I also ran into a - struck a couple of cars on the road and I asked them where they were going and they said they're going down to Jimmy's camp. "How did you get through the gate?" "Mr Carter give us the keys." Like, I would just like to know of Mr Carter how many keys he has actually give - given away. Because I certainly never give Mr Carter a key at any stage.”[13]
[13] T. p. 1-9.
“Yeah, but the deceitfulness of it is a problem too.”[14]
[14] T. p. 1-10.
“Yeah, but the past is what I'm here about. That's why I objected to it; because what was going on in the past. Like 30 years of illegal mining and a heap of rubbish, keys given to their friends. That is my point. Like, road maintenance and everything, that is why I'm here. I'm not here to look into the future. I sort of - they've been- they've been - they've done the dirty on me for so many years, but I think it's time to stop and I don't even think a mining claim should be even thought of until the mess is cleaned up and a mining inspector inspects it.”[15]
[15] T. p. 1-10.
“I've spoken to the Mines Department. I always thought the Mines Department was - is a coordinated between the landholder and the miner. I thought it was their job to do it. Because I first got involved with this when Mr Marriage left 'cause he had to go up there and inspect - apparently the miners put up a fee and he had to go and determine whether Mr Marriage got his money back or not. And he went up and inspected the site. And it's that - when he was doing that that he sprung Mr Bemenuti illegally mining, Mr Carter wasn't there, and I don't think Ted's done any mining - very little mining since then. And up till then I - I always thought they were legal, I didn't know what my rights were, I just thought miners had the - had the authority over graziers. It wasn't till I got - I got a letter from a mining company last year or the year before which stated they wanted a permit over the whole of my property - pretty well the whole of my property, and I rang them up and asked them how many people can have the - have a permit over my property - can have the same - and they said there's no legal miners on your property. And I said, well there's miners there.”[16]
“Mr Carter has not been the sole person accessing your land and he understood that he was there with permission of people who he understood who had permission?‑‑ Why would he take their word and not come to the owner of the land? Like he - I know Mr Percival Anderson, which is connected with Jimmy somewhere - he told me that he paid so much money for Chris Analky's camp. Well why would anybody pay money for an illegal camp on somebody else's land? I can't follow it. It seems as though there's each one's having a go at each other along the line, like…”[17]
“I approached - when I went down there the Mines Department come to me and got a key and asked me would I take them down there, would I go with them to show them where to go. That's the only time - and I thought that it would be up to the Mines Department to do the dirty work, not me. I thought as soon as they found an illegal miner he'd cop a fine and be told to pack up and go.”[18]
“I thought they'd confront Jim and tell him that everything was wrong, there's too much rubbish or there shouldn't be any rubbish there 'cause he's not legal. I thought it'd be their job to tell him to pick up his rubbish and then go. I didn't think they'd even allow him to apply for a permit till that rubbish was picked up.”[19]
“the applicants have got to put up a - sort of a $10,000 bond so if they leave rubbish behind the Mines Department will come and clean it up. But with this illegal mine they got no mining - they got no money in kitty so the mess will be left to me.”[20]
“I'm a bit dirty that they've been there for 30 years, I thought they were legal, and they've been putting it over me for 30 years. Like if they were legal and I knew they were legal I'd be entitled to compensation for when they - and all that sort of thing. So I think - I thought the Mines Department wouldn't have tolerated illegal mining. I thought it was a dirty no-no.”[21]
“My concerns were the mess and the dishonesty and the handing out of keys to everyone that wanted to go down there. It was more or less a picnic area.”[22]
“The only reason they're doing this is because they've been sprung. Any other reason? Like, if they weren't sprung, would this have come to this. That's the only reason they're doing it all, is
We're just trying to move forward in a legitimate and legal and appropriate way in moving forward, that's all we can do, Mr McEvoy. We're not looking at the past here and we're not here to judge the past?‑‑ Then I can't look into the future.
If you‑‑‑‑‑?‑‑ Like, he hasn't abided by this - this - not - not going very far into the past by his pegging permit rules, he hasn't abided by them. Like, why haven't they - why haven't they abided by their pegging permit rules.”[23]
[16] T. p. 1-12.
[17] T. p. 1-12.
[18] T. p. 1-13.
[19] T. p. 1-13.
[20] T. p. 1-13.
[21] T. p. 1-14.
[22] T. p. 1-15.
[23] T. p. 1-36.
Analysis of the Evidence
I accept Mr McEvoy as a truthful witness. He gave his account clearly and consistently. He impressed as a landholder and pastoralist who goes about his day to day business of working his property. He clearly believed until recent times that all miners present on his property were there by way of legal right arising under Queensland Mining Legislation and that he was powerless to do anything about the situation. He was clearly mistaken in this belief. He also, understandably in my view, feels let down by the State Regulatory Authorities with respect to mining. He clearly believed that once Mr Carter and other illegal miners had been “sprung”, to use his words, that the relevant government agencies would take action against the illegal miners to have them removed from his property and the rubbish and open shafts that they have created to be rectified. He is disillusioned that it appears that the mining authorities have instead assisted and encouraged Mr Carter to obtain a mining claim, and have done nothing to enforce the rules relating to illegal mining. In short, Mr McEvoy feels let down and betrayed by the system.
Mr Carter also gave his evidence in a clear, mostly believable fashion. I accept the truth of the bulk of his evidence which is mostly not inconsistent with Mr McEvoy’s evidence.
The one particular aspect of Mr Carter’s evidence that I find far from credible relates to his claim that he has not removed any minerals from the area of his mining activities over the last 20 years. The way he gave his evidence in this regard was an attempt to have the Court believe that he has only undertaken fossicking and exploration type activities on the land, as well as camping with friends. I reject this aspect of his evidence.
Mr Carter gave clear evidence that he first started his mining activities on the land in 1987 when he took over working a mining lease which had been validly granted and was still current though abandoned by its owner. He undertook mining activities on that leased area with the then leaseholders’ permission. It is also apparent from his evidence that, on the lease expiring in or about 1990, he sought, unsuccessfully, to continue legal mining activities. What then followed was 19 years of illegal mining activity on the landholders land. Whilst I do accept that such mining activity has been more of a lifestyle activity of a retired man rather than a significant wealth generating mining operation, nevertheless Mr Carter gave evidence that he had removed tons of material from the bottom of existing pits and used that material, together with other slag material, to assist in the repair of the access road to the mining area. In giving this evidence Mr Carter was attempting to show his bonafides in assisting with the upkeep of the access track. I accept his evidence in that regard. However, that evidence also goes to clearly establish in my view that his mining activities were significantly greater than what he would otherwise have the Court believe. I am in no doubt that, in removing tons of material from the bottom of existing pits, that such activity included the winning of gold and other minerals which Mr Carter extracted for his own benefit.
I note that there are some minor areas of the evidence where Mr Carter’s and Mr McEvoy’s recollections differ. These inconsistencies are only minor, such as evidence of meetings and discussions they have held in the past, and can be more put down to the passage of years and failing memory rather than any attempt in this regard by either person to deceive the Court.
As regards the issue of the status of the road access to the mining area (Bee Creek Road), I accept that Mr McEvoy acted with what he took to be the authority of the relevant government agencies, and in reliance on the letter from the Department of Lands of 29 October 1991[24] to the effect that the access was not a public road but was indeed a private road on Mr McEvoy’s property. In locking a gate to prevent public access along the track to the mining area, Mr McEvoy was acting in an honest and reasonable, albeit mistaken, manner.
[24] Exhibit 5.
Messrs Macrossan & Amiet have provided to the Court a copy of a letter dated 4 January 2011 which is an advice by the Department of Environment and Resource Management to Mr McEvoy regarding the status of the access road on his property the subject of these proceedings. The departmental letter enclosed an advice of 23 December 2010 provided by Mr Steve Sheppard, Principal Advisor, State Land Asset Management. Mr Sheppard’s advice is very detailed and, in my view, correctly determines that the road in question on the subject property has been sufficiently dedicated for public use for the purposes of the Land Act 1962 and the Land Act 1994 and is a dedicated road. Accordingly, the landholders have wrongly locked the gate on Bee Creek Road and thus wrongly prevented public access along Bee Creek Road.
Relevant Statutory Provisions
The Land Court is conducting the hearing of this matter pursuant to s.77 of the MRA. Section 78 of the MRA concerns the Land Court’s determination on the hearing. It relevantly provides as follows:
“78 Land Court’s determination on hearing
(1)Upon the hearing by the Land Court under this part of all matters in respect of an application for the grant of a mining claim the Land Court may—
(a) instruct the mining registrar to reject the application;
(b) instruct the mining registrar to grant the mining claim—
(i)upon compliance with any terms and conditions imposed by the mining registrar on the applicant with respect to the application or the grant; and
(ii)in the case where the application relates to land that is a reserve and the consent of the owner of the reserve to the grant has been obtained;
(c)in the case where the application relates to land that is a reserve and the owner of the reserve does not consent to the grant of the mining claim—
(i)make an instruction referred to in paragraph (a); or
(ii)recommend to the Minister that the Governor in Council should consent to the grant of the mining claim and, the terms and conditions (if any) to which the mining claim should be subject.
(2) The Land Court shall not—
(a)give an instruction to the mining registrar directed towards the grant of a mining claim;
(b)make a recommendation to the Minister directed towards the giving of consent by the Governor in Council to the grant of a mining claim;
if it is satisfied that—
(c)the provisions of this part have not been complied with; or
(d)the public interest would be adversely affected by the grant of the mining claim; or
(e) there is good reason to refuse to grant the mining claim.”
It is highly significant in my view that s.78(2) of the MRA is worded in the way it is. The words are clear and unambiguous. The Land Court shall not give an instruction to the mining registrar to grant the mining claim if it is satisfied that the relevant provisions of the MRA have not been complied with; the public interest would be adversely affected; or there is good reason to refuse the grant of the mining claim.
Other provisions of the MRA should also be mentioned. In particular, I note s.343 of the MRA which sets out in great detail the steps that may be taken pursuant to the MRA by certain authorised officers, in circumstances where they believe on reasonable grounds that mining activities are occurring in contravention of the provisions of the MRA. The authorised person is empowered to seize both minerals obtained by the unauthorised mining as well as vehicles, machinery and other property and equipment used as part of that illegal mining operation. Division 2AA of Part 10 of the MRA relates to access to abandoned mines and sets out in s.344 (and following) the actions that the chief executive may undertake in circumstances where there is land which has not been properly rehabilitated following mining activities.
Section 402 of the MRA sets out various offences with respect to unauthorised mining.
It is somewhat curious that no action has been taken under the MRA against Mr Carter or indeed, it would seem, other persons who have clearly undertaken illegal mining activities on the landholders land for the past two decades.
Relevant Authorities
This is not the first occasion in which a Court or Tribunal has had to consider the consequences of illegal mining activities being undertaken on land by a person who subsequently applies for a mining tenure to cover those illegal mining activities. I turn first to a decision of mine when I held the position of Deputy President of the Land and Resources Tribunal. The case is McLoughlin v Barrett.[25] McLoughlin was a case which, in some regards, is eerily similar to the case at hand particularly with respect to the assistance apparently given by the mining registrar to the applicant to apply for a mining claim over the area of land subject to illegal mining activity. In McLoughlin, I had this to say, relevantly, at paragraph 48:
“In Re Aradon Pty Ltd[26] I found that the failure of an Applicant to comply with the provisions of the Act do not necessarily result in an application (in that case an application for a mining lease) failing.[27] Even more so in an application for a mining claim where the provisions of s 269(4) are a guide only, I find that failure by the Applicant to comply with the Act does not necessarily result in rejection of the application. However, as I also observed in Re Aradon,[28] I am concerned in this case that the Applicant seems to be of the view that a failure to comply with the provisions of the Act is something that can simply be rectified by an application for a mining claim. Most disturbingly, this view on the part of the Applicant appears to have arisen as a result of advice provided by an officer of the then Department of Mines and Energy. I can but repeat what I said in Re Aradon:-
‘This attitude represents a failure to take the various requirements of the Act seriously and should clearly be discouraged’.”[29]
[25] [2001] QLRT 56.
[26] [2001] QLRT 35.
[27] At para 40.
[28] At para 42.
[29] At para 42.
In another related decision, Re McLouglin and Barrett,[30] I summarised a number of authorities which all involved instances of illegal mining activities by an applicant for a mining tenure. Relevantly, I made the following observations:[31]
[30] See [2001] QLRT 82.
[31] At paras [29] – [39].
“[29]There are a number of authorities that I should turn to in considering the impact of the unauthorised mining on the mining claim. The first relevant authority is Michael John Mann v. Holger Paul Leinung and Edelfraut Leinung. In that recommendation the Mining Warden relevantly had this to say from pages 10 to 12, excluding irrelevant parts[32]:
[32]Mann v. Leinung and Anor (Unreported) Warden’s Court of Queensland, Mining Warden Windridge, 24.05.2000 at pp 10-12.
“The remaining round of objection relates to the allegation of “mining and prospecting on our EP’s”. Leinung’s evidence discloses that the “Exploration Permits” are only applications that are awaiting grant. That grant appears to be somewhat delayed due to “native title” considerations. The objectors are concerned that activity on the area under application may affect their application. That is a genuine concern and validly held, in my opinion. However, it appears that the evidence before this Court would exonerate the applicant from any blame or liability in causing the surface to be disturbed. In hindsight, it might be questionable that consent was given when the application had not been finalised, irrespective of a right to do so under Section 249 of the Mineral Resources Act.
Counsel for the applicant miner submits that the only real evidence of activity on the surface of the Exploration area is from an admitted perjurer. That being the case, I am urged to disregard the evidence of East. Leinung, when he visited the area on October 3, took photographs of a disturbed area and the machinery nearby. He considered the disturbance fresh. Notwithstanding East admits he told a lie under oath in relation to obtaining some opal from the mining operation, when combined with the observations of Leinung, I consider there is enough evidence to link East and Mann to activity took place on the surface area of Mining Lease Application 95288 before the grant of a lease, and that this activity was also within the area of Exploration Permit 11960 which was still an application at that stage.
A person may only “mine”, i.e. win a mineral, extract a mineral or dispose of any mineral (Section 5) under the appropriate licence or lease. I am satisfied that there has been disturbance of the surface of the area within mining lease application 95288. There is some basis for inferring that East and Mann were responsible for the disturbance. Therefore, the provisions of the Act have not been complied with. To rule otherwise is to infer that the lodgment of an application gives the right to mine. That obviously is incorrect. I am satisfied that Ground 2 of the objection has been made out.”
[30]The Mining Warden then went on to make the following recommendation:
“1.The provisions of the Act have not been complied with in that disturbance of the surface area by Mann and East constitutes an act of unauthorised mining before the lease application has been considered, recommended or granted.”[33]
[33] At p 12.
[31]The next relevant authority is a recommendation of my own in the matter of Re Aradon Pty Ltd[34]. That matter involved a long standing mining operation linked to a tourist activity. The mining occurred on the very top of a very steep hill. In that case I had this to say at paragraphs 42 to 44:
[34] [2001] QLRT 35
“[42]I am concerned that in this matter the Applicant has failed to meet the requirements of at least two criteria. I am also concerned that the applicant seems to be of the view that a failure to comply with the provisions of the Act is something that can simply be rectified by a new Application. This attitude represents a failure to take the various requirements of the Act seriously, and should clearly be discouraged.
[43]Although the mining activities have principally been carried out in the past by Mr Kayes deceased father, the Applicant cannot escape its corporate responsibility.
[44]However, as the application is closely associated with a long term tourist facility, and due to the otherwise satisfactory operations on the site, I do not believe that the Applicant’s failure to comply with s. 269(4)(a) and (g) should result in a recommendation that this application be refused. The serious nature of the failures by the Applicant must though have some impact on this Application.”
[32]I then went on to recommend that the mining lease be granted but for a reduced term. It was further evident in that matter that the illegal mining activities or unauthorised mining activities had occurred not so much because of the mining operations, but because of the difficulties inherent and, in my view, error made in the original grant in that the original grant was not of an appropriate size or shape, making the unauthorised mining activities, which subsequently occurred in spoil falling down the side of a hill and moving by force of gravity outside of a mining lease boundary, inevitable.
[33]I now turn to the matter of Re Claypave Pty Ltd[35]. This is also a decision of myself. I had this to say at paragraphs 25 to 29:
[35] [2001] QLRT 69
“[25]From the evidence and my own observations on the site inspection, it is clear how the Applicant ran foul of the provisions of the Act. The Applicant’s mining lease activities are not the classic extraction of a resource from an area of land. Much of the land where the applicant is currently operating has previously been subject to coal mining. As a result of the coal mining, large piles of coal mining spoil exist within the Applicant’s lease areas. The Applicant was not responsible for creation of the large areas of spoil. Although discarded for purposes of coal mining, the spoil heaps contain large quantities of clay extracted and used by the Applicant. By mistake, the Applicant went outside of its current lease area whilst extracting clay from part of one of the large spoil heaps which is predominantly located on the Applicant’s current lease area.
[26]The spoil heap referred to above had not only gone outside of the Applicant’s mining lease area, but had covered part of Whitwood Road, a dedicated but unmade road. It is clear from the evidence that the Applicant was not aware that the spoil heap placed by previous coal miners had extended into the area of Whitwood Road. As I indicated in Re Aradon Pty Ltd mining without authority of a mining lease can have serious consequences.
[27]It is the obligation of the Applicant to ensure that it at all times remains within the boundaries of a mining lease and it must accept both responsibility for, and the consequences of, any mistake that may occur in that regard.
[28]Although undertaking activities outside of a lease area is a breach of the Act and something which must be taken seriously, it is my view that the circumstances of this particular matter somewhat excuse the Applicant for its error.
[29]The previous coal mining activities have left the subject land seriously affected. The spoil heaps previously referred to had extremely steep, high sides. Work currently undertaken by the applicant on spoil heaps within current mining leases as well as that proposed under the current application, will have the effect of reducing the size and number of the spoil heaps and, potentially, over an extended period of time, of removing the spoil heaps altogether. The nature of the spoil heaps left by others has directly caused the Applicant his difficulties. The Applicant ceased work immediately it became aware of the precise boundaries and did everything requested of it by the Department. If this mining lease application is granted, the Applicant should have no further difficulties with respect to the spoil heaps.”
[34]It is now relevant that I turn to my findings of 1 August 2001[36] in this matter, as I found at paragraphs 51 and 52:
[36] [2001] QLRT 56
“[51]However, that said, that does not mean that the application will ultimately be successful. I have found the Applicant to be responsible for the serious fact of illegal mining activities. The provisions of the Act clearly do not sanction illegal mining operations. They are certainly to be discouraged.
[52]However, I also find that the Applicant’s illegal mining activities arose due to a simple mistake on the part of the Applicant in checking boundaries of a mining lease. It was, however, the obligation of the Applicant to ensure that he at all times remained within the boundaries of the mining lease that he was proposing to work and he must therefore accept both a responsibility for, and consequences of, his mistake.”
[35]It is relevant, also, that on being informed by the relevant Government Department, that he was operating outside of the Richardson mining lease area, the applicant immediately ceased mining activities and has, thence since, not conducted activities on site. In this regard the conduct of the applicant closely follows that of Claypave.
[36]The objection in this matter was on a very narrow, but important point. I find it significant that the objector made no other grounds of objection. It is also my view, as evidenced by the submissions of Mr Houen for the objector, that the objector had objections with not only the Applicant, but also, and perhaps more so, with the Department. Those issues are fully canvassed in my decision of 1 August 2001.
[37]In matters such as this it is always a balancing issue. On the one hand it is true that the applicant has conducted illegal mining activities. On the other hand it is also apparent that those activities have occurred by simple mistake. It is further apparent that the objector has no issue with the application, save for the issue of illegal mining. I find that the most significant factor in the decision that I have ultimately reached in this matter.
[38]Although the Applicant had conducted illegal mining, it has been by simple mistake and the circumstances are not like those in Mann v. Leinung or even in Re Aradon, but much more akin to those set out in the matter of Re Claypave.
[39]Accordingly, having considered this matter, and in light of my findings set out earlier in this decision, and on 1 August 2001, I instruct the Mining Registrar, Emerald District, to grant mining claim No. 70598.”
Determination
I accept that, in applying for the mining claim, Mr Carter has followed the advice of the mining registrar and has, albeit somewhat haphazardly, attempted to rectify his two decades of illegal mining activities. However, I also accept Mr McEvoy’s contention that the reason Mr Carter has sought the mining claim is simply because he was “sprung” undertaking illegal mining activities.
Mr Carter’s solicitors have done an admirable job in their submissions in attempting to convince me that any deficiencies of Mr Carter should be overlooked given his now expressed desire to undertake lawful mining activities and to remove all rubbish from the relevant areas of the landholders property. In particular, I am requested to invoke the substantial compliance provisions of the MRA as regards the failure by Mr Carter to notify the landholders prior to entry onto the property for the purposes of pegging the mining claim. This of course appears to clearly be contrary to s.78(2)(c) of the MRA and of itself may indeed be a good reason why the Court should direct the mining registrar not to grant the mining claim. There are, however, in my view, more compelling reasons why the mining claim should be rejected.
As already set out, the Land Court is required to reject the mining claim if the public interest would be adversely affected by the grant of a mining claim or there is good reason to refuse to grant the mining claim.[37] Considered objectively, in my view, if the provisions of the MRA are ever to operate such that a mining claim (or mining lease for that matter) should be rejected by this Court, then this is that case. The applicant has undertaken illegal mining activities on the landholders land for two decades. He has clearly traded in the purchase of illegal mining camps from others to himself during this time. As he began his mining activities in 1987 under the authority of a granted mining tenement, I am in little doubt that Mr Carter has been aware in general terms since 1990 that he was conducting mining activities without complying with the provisions of the MRA. I do not understand how it is that Mr Carter was led to believe that his illegal mining activities could be cured by applying for a mining claim. In my view, the scheme of the MRA clearly sets out what should occur when illegal mining activities are discovered by the relevant authorities. Perhaps, if Mr Carter had removed, or indeed the authorised officer had seized, all of his mining camp and other equipment and material on the illegal mining area and further, Mr Carter had also, either of his own accord; under the direction of the mining registrar; or otherwise; rehabilitated the land or caused the land to be rehabilitated and relevant mining shafts made safe then, having faced whatever penalties may have been enforced under the MRA, and having completed all rectification activities, the public interest , and confidence in the MRA processes, may have resulted in this Court giving some favourable consideration to an application for a mining claim. That however is not the case. Part of the landholders property, by Mr Carter’s own admission, is covered with rubbish as a result of illegal mining activities. Although it is true that not all of the rubbish has been brought on to site by Mr Carter, even Mr Carter agreed during cross-examination that he had purchased a camp and had accordingly acquired all of the rubbish that went with that camp. Of course, when I refer to ‘purchase’ of a camp I am in no way implying any legal purchase of any right or interest with respect to the landholders land but merely the acceptance of obligations to remove rubbish brought onto the subject land by others.
[37] See s.78(2)(d) & (e).
It is of paramount importance that the mining laws of this State are administered fairly and equitably. This includes the proper consideration of objections to the grant of mining claims and mining leases. A review of the decisions of both the Land Court and the Land and Resources Tribunal over the last decade clearly shows that few objectors objections result in applications for mining claims or mining leases being rejected, although on numerous occasions such objections do result in more stringent conditions being applied to a mining activity.
If, in the face of the essentially undisputed facts of this matter as regards illegal mining activities, the Court determined nevertheless to direct the mining registrar to grant the mining claim, one could be forgiven for thinking that it would be virtually impossible for any objector to ever rely upon the provisions of the MRA objection process to stop a mining activity occurring on their property. That is clearly not the intent of the MRA.
In the circumstances of this case I consider that good reason has clearly been established why this mining claim should be rejected and I am accordingly compelled, applying s.78(2) of the MRA, to instruct the mining registrar to reject the application.
Costs
In light of my findings and determination in this matter, it would appear to be an appropriate case where costs should be awarded in favour of the objectors. However, prior to making any order with respect to costs, including reserved costs, I consider it appropriate to allow the parties the opportunity to make submissions as to the award of costs and whether any such award should be on the standard or indemnity basis. Should the landholders seek any award as to costs, they are to file and serve submissions seeking same by 4.00 pm 17 November 2011. The applicant may file and serve submissions in response by 4.00 pm 1 December 2011, and the landholders may file and serve any submissions in reply by 4.00 pm 8 December 2011.
Orders
1.The mining registrar, Emerald, is instructed to reject the application for mining claim 72034.
2.Should the landholders seek any award as to costs, they are to file and serve submissions seeking same by 4.00 pm 17 November 2011. The applicant may file and serve submissions in response by 4.00 pm 1 December 2011, and the landholders may file and serve any submissions in reply by 4.00 pm 8 December 2011.
HIS HONOUR PA SMITH
MEMBER OF THE LAND COURT
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