Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No.6) - [2013] QLC 1

LAND COURT OF QUEENSLAND

CITATION: Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No.6) [2013] QLC 1

PARTIES: Cherwell Creek Coal Pty Ltd
(applicant)

v.

BHP Queensland Coal Investments Pty Ltd
QCT Resources Pty Ltd
BHP Coal Pty Ltd
QCT Mining Pty Ltd
Mitsubishi Development Pty Ltd
QCT Investment Pty Ltd
Umal Consolidated Pty Ltd
(respondents)

FILE NO: MRA1332-08

DIVISION: Land Court of Queensland

PROCEEDING: Application for drilling activity

DELIVERED ON: 24 and 31 January and 8 February 2013 [part Ex tempore]

DELIVERED AT: Brisbane

HEARD AT: Brisbane

MEMBER: Mr PA Smith

ORDERS:
1.     The Applicant and its agents are permitted to enter upon the area of land which comprised the former MDLA364, which lies within the boundaries of Mining Lease 70403, more particularly described as Lots 12 and 13 on SP151669 and Lot 16 on SP163605 (“the MDLA364 Land”) in order to inspect, take samples of the coal resource, and to undertake drilling in the locations identified in schedule 1 and in accordance with the attached schedule 2 and schedule 3 (“the Drilling Program”) the terms of which form part of this Order.

2.     In the event of any dispute arising between the parties concerning the implementation of the Drilling Program on the MDLA364 Land:

2.1      within 1 business day of a party becoming aware of a dispute, the disputing party will write to the other party:

(a)     setting out the nature of the dispute;

(b)    nominating a panel of three mediators (such mediators to be legal practitioners or other independent qualified personnel who have experience in the mining industry relevant to the dispute of not less than five years experience), confirming their fees and availability to hear the dispute within the timetable set out in this Order; and

(c)     confirming the days which the disputing party is available to attend a mediation within the timeframes set out in this Order;

("the Dispute Notice")

2.2      within 1 business day of receiving the Dispute Notice, the other party will write to the disputing party:

(a)     setting out their response to the issue in dispute;

(b)    nominating one of the mediators to hear the dispute; and

(c)     confirming the date which they are available to attend a mediation within the timeframes set out in this Order.

("the Response Notice")

2.3      The Mediation will take place within 3 business days of the disputing party receiving the Response Notice at a place agreed between the parties or as otherwise nominated by the Mediator.

2.4      The parties will each pay half of the Mediators fees in conducting the mediation, but will otherwise bear their own costs of the mediation.

2.5      In the event that the Mediation does not resolve the dispute, the disputing party must write to the Court advising of the existence of the dispute and its failure to settle at the mediation and provide the Court with a copy of the Dispute Notice and the Response Notice.

2.6      Upon receiving notice of the existence of the dispute, the Court will relist the matter for hearing at the earliest opportunity.

3.     The Applicant will pay to the Respondents any loss, damages, costs or expenses reasonably suffered (Loss) by them as a result of the Drilling Program in accordance with Order 4.

4.     In the event that the Respondents allege that they have incurred Loss caused by the Drilling Program in accordance with Order 3:

4.1      the Respondents will write to the Applicant setting out the allegation, including the cause of the Loss, the nature of the Loss, and details of the Loss which is alleged to have been incurred by them together with any source documents supporting the claim,

4.2      the Applicant will write to the Respondents advising:

(a)    whether it accepts the claim in full or in part or at all; and

(b)    the basis for its objection (if any) to the claim;

4.3      in the event that the Applicant and the Respondents are not able to agree as to the cause and/or amount of the alleged Loss:

(a)     the Respondents will file an application in the Court together with an affidavit setting out the nature of the claim and the amount of the alleged Loss, together with any supporting documentation;

(b)    the Court will list the matter for directions and/or hearing at the earliest opportunity.

5.     The parties be at liberty to apply on 3 days notice.

SEE ATTACHED SCHEDULES 1-3.

CATCHWORDS:
MINING – compensation for statutory loss of potential coal rights – application for drilling activity to assess scope and amount of coal – opposed by respondent – respondent plans to use surface area for infrastructure for new mine – drilling permitted as “survey” (s.380 of Mineral Resources Act 1989) – drilling allowed subject to conditions – applicant to pay reasonable costs of respondent – mediation order to resolve disputes

PRACTICE AND PROCEDURE – application to conduct inspection and activity on property in dispute – Land Court Rules 2000 silent – Uniform Civil Procedure Rules 1999 (UCPR) apply by default - s.250 UCPR

Mineral Resources Act 1989
Land Court Rules 2000
Uniform Civil Procedure Rules 1999

Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2008] QLC 216
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 2) [2009] QLC 130
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 3) [2010] QLC 104
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 4) [2010] QLC 122
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 5) [2011] QLC 74
BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2009] QLAC 0005
BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No 2) [2009] QLAC 0008
Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2011] QLAC 0001
BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2011] QLAC 0002

APPEARANCES:
Ms Chapple of Counsel for the applicant

Mr Doyle SC and Mr Stumer of Counsel for the respondents

SOLICITORS:
Mr Boys of Holding Redlich Lawyers for the applicant

Mr Hurford of Allens for the respondents

[Cherwell Creek Coal (CCC) sought orders allowing it to conduct drilling activities on a mining tenement owned by the respondents (BMA). BMA alleged that the drilling program, if allowed, would expose it to losses of tens of millions of dollars. CCC claimed that the drilling program was necessary for it to properly prosecute its claim, which is potentially worth hundreds of millions or billions of dollars. The drilling program is proposed to occur on an area of land in the process of being converted to significant mining infrastructure by BMA. The infrastructure program of BMA, according to the evidence at the hearing of the application, was on a tight timeframe. To accommodate this tight timeframe, the decision on the application was worked on, and was to be delivered, during the Court vacation. The parties were duly advised that judgment was to be delivered. The day prior to delivery of the judgment, BMA filed a further affidavit (3^rd affidavit of Mr Willmott dated and received on 23 January 2013, leave granted to file and read on 24 January 2013) disclosing that the timeframe for the construction of infrastructure works had been substantially delayed (for reasons unconnected with CCC’s application).
The delay to BMA’s program caused a significant re-evaluation of the Court’s pending decision. The decision was subsequently delivered over three days (24 and 31 January and 8 February), both orally and in writing, following further submissions by the parties. The Court adopted this course in light of the huge quantum impacting both parties; to avoid any further delay; and bearing in mind s.7 of the Land Court Act 2000.
The formal reasons of the Court follow, with additional explanations in [ ] where considered necessary to assist the reader.]

The Application

On 16 November 2012, the applicant in this application, Cherwell Creek Coal Pty Ltd (CCC), lodged a general application seeking certain orders to allow a drilling program to be undertaken on land now held under Mining Lease (ML) 70403 by the respondents currently referred to as (BMA).
By it’s general application, CCC seeks the following orders:
“1. Pursuant to Rule 250 of the Uniform Civil Procedure Rules (UCPR), the applicant and its agents be permitted to enter upon the area of land which comprised the former MDLA364, which lies within the boundaries of Mining Lease 70403, more particularly described as Lots 12 and 13 on SP151669 and Lot 16 on SP163605 (‘the MDLA364 land’) in order to inspect, take samples of the coal resource, and to undertake drilling in accordance with the drilling program proposed in a letter from Holding Redlich to Allens dated 5 October 2012 (‘the Drilling Program’) and in accordance with the following terms and conditions:
(a)Any drill rig or other equipment is certified as being compliant with all relevant legislative requirements before entry and at all times whilst on site;
(b)The drill rig or other equipment and any drilling contractors or other agents comply with all health and safety requirements and any directions given by the Senior Site Executive (SSE) before entry and whilst they are on the site;
(c)That any drilling contractor or other agent hold all relevant competencies pursuant to the Coal Mining Safety and Health Act 1999 (Qld) and any other relevant legislative competencies before entry and whilst on site.
(d)That all persons undergo all relevant site inductions before entry and as and when required by the SSE.
(e)The drill holes be drilled generally in the locations and in accordance with the Drilling Program.
(f)The drilling contractor or other agent give the SSE no less than 7 days notice of their intention to first access the site pursuant to the terms of this order.
2. The Respondents pay the Applicant’s costs of and incidental to this application.
3. Such further orders as the Land Court sees fit.”

The general application also sets out in brief form the grounds on which CCC seeks the orders. These grounds are:
“1.   Rule 4 of the Land Court Rules (LCR) provides that if the LCR do not provide for a matter in relation to a proceeding in the court and the UCPR would provide for the matter, the UCPR apply in relation to the matter with necessary changes.
2. The LCR has no rule in respect to the inspection, detention, custody or preservation of property, so pursuant to rule 4 LCR, rule 250 UCPR applies to this proceeding.
3. Rule 250 UCPR provides that the court may make an order for the inspection, detention, custody or preservation of property if:
(a)the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
(b)inspection of the property is necessary for deciding an issue in a proceeding.
4. Under section 36 of the Acts Interpretation Act 1954, property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.
5.     In this case, the applicant seeks an order for the inspection of land, by being permitted to enter upon the land to take samples of the land via a drilling program.
6.     It is in the interests of justice and the efficient conduct of the proceeding that the applicant be permitted to enter upon the MDLA364 Land, and conduct the Drilling Program.
7.     The Respondents have rejected the applicant’s proposal to conduct the Drilling Program.
8.     In the premises, the Land Court should make the order sought by the applicant in this application.”

Background

The substantive action was commenced by CCC in 2008 following amendments made to the Mineral Resources Act 1989 (MRA) which came into effect on 9 May 2008. By s.722G(1), CCC was allowed to commence these proceedings “for the payment of compensation for the loss of it’s opportunity, because of the enactment of this part, to commercialise the MDLA364 coal resource.”
It is beyond any doubt that this litigation is both complex and lengthy and involves a potentially very large quantum of compensation. Since the commencement of the litigation, the Land Court has been called upon to deliver five decisions[1] and the Land Appeal Court four decisions.[2] It is unnecessary to make further reference to the background of the

litigation as it has been well set out in the previous decisions of this Court and the Land Appeal Court.
[1] [2008] QLC 216; [2009] QLC 130; [2010] QLC 104; [2010] QLC 122; and [2011] QLC 74.
[2] [2009] QLAC 0005; [2009] QLAC 0008; [2011] QLAC 0001; and [2011] QLAC 0002.

The litigation currently before me has been well summarised by the Counsel for the respondent and they set out three reasons why the orders sought by CCC should not be allowed. They say, firstly, the Court does not have power to make an order for CCC to conduct drilling which would be unlawful as prohibited by s.402 of the MRA. Secondly, the drilling will produce results which are unlikely to have a significant impact on a resolution of the dispute between the parties and thirdly, the drilling would be extremely disruptive to BMA’s lawful activities on ML70403 causing a very real loss for which no recompense is offered and which exposes it to the potential loss of its tenement.
I will explain what the Court was intending to do today [24 January 2013] before Mr Willmott’s 3^rd affidavit came along and that may make things a little clearer. In the intervening weeks since the application was heard, I had of course, been working on it during the Court vacation, and I came to my legal conclusions regarding the application and consequences that followed as a result of that.
The course that I proposed to go along with was to allow most of the objections that BMA had made to the application, but to allow limited drilling to occur in specified areas under a very tight timeframe. The timeline was so tight that CCC, in reality, may not have been able to do much, if any, actual drilling.
With the valued assistance of my Deputy Registrar, I undertook a lengthy, detailed, complex analysis of every drill hole including all the evidence relating to every drill hole, to determine if each should be ruled in or out, and also determine the timeline each drill hole should be prepared under.
That was all good until 23 January 2013. The 3^rd affidavit of Mr Willmott[3] has substantially altered the timelines which underpinned the basis upon which the Court's decision was meant to occur. What I intended and in great part due to the urgency of the case and not wanting to disrupt BMA by having this matter delayed, was that I proposed to hand down oral reasons for my decision and a written document setting out in full the analysis of every bore hole. That is, the detail for writing the decision had fallen to the intricate analysis of each bore hole and my reasoning is set out in front of me which was to be delivered orally which is why the matter was set down for two hours as the parties had been advised. The difficulty is now the foundation has altered.

[To assist Counsel for each party, and to save further delay, the Court then on 24 January 2013 handed down what it referred to as a “readers digest” summary of the decision and then sought submissions as to the best way to proceed in light of the 3^rd affidavit of Mr Willmott of 23 January 2013.]

[3] Leave to file and read granted on 24 January 2013.

I will give the parties a summary of the reason and then I will hand to the parties a schedule of the bore holes prepared without reference to the 3^rd affidavit of Mr Wilmott.[4] In the last 24 hours the Court has attempted but not fully, and not in a way which I could happily rely on at this stage, to produce a new schedule. It is at best draft only and I am happy enough to provide that to the parties given the circumstances, although it's not something I would normally do.[5]
[4] The schedule is Annexure 1 and the map required to make reference to each borehole is Annexure 2.
[5] The draft schedule produced in light of Mr Wilmott’s 3^rd affidavit is Annexure 3.

Core elements of case

The issues are relatively simple if anything is in this case. One of the main objections of BMA was that the activities to be undertaken were mining activities precluded by s.402 of the MRA, and that if they allowed mining to occur in a way that was not authorised by the MRA, it could put their entire tenure at risk.
If that was not the case, then it was also said by BMA to be a fishing exercise and also one which would cause undue hardship, delay and expense to BMA. I am concerned regarding the costs, the hardship and the disruption to BMA and have found mostly in their favour with respect to all of the material relating to the cost and disruption. Again, this must be tempered by the 3^rd affidavit of Mr Willmott.
As regards the fishing exercise, I have some concerns that to determine whether or not it is a fishing exercise in the strange nature of this case, requires a determination of the meaning of s.722G of the MRA which of course is something that has to occur at the substantive hearing of this matter, not on a preliminary basis. Is it a question of the existing resource or a resource applied for in the MDLA application? In that regard CCC has quite a different view to BMA and both views are available and should be argued at hearing. Therefore, CCC is entitled to explore its case to its full and run same. CCC however is at real risk of costs being awarded against it, should it be wrong at the end of the day. In any event, costs will be an appropriate remedy if CCC is incorrect on this fundamental basis of its case.

Section 380 MRA

As to the argument that the activity to be undertaken is mining under the MRA and that therefore rule 250 does not apply, I have two views. Firstly, neither side took the Court to s.380 of the MRA. Section 380 provides as follows:
“If, at any time before or during the hearing for a proceeding, under this Act, in the Land Court, it appears to the Land Court that it is necessary for the proper determination of the proceeding that a survey be made of any land, water, stack or other accumulation of ore, buildings or any other thing the Land Court may order any party to the proceeding as, to it, appears just to cause the survey to be made and the costs of or incidental to the survey shall be costs in the proceeding and shall be paid as the Land Court orders.”
Importantly, land is defined in schedule two of the MRA to include subterranean land, so the Court may order a survey of land including subterranean land. That of course leads to the direct question, what is a survey? The Macquarie Dictionary Federation Edition[6] defines survey as:
“1. to take a general or comprehensive view of. 2. to view in detail, especially to inspect or examine formally or officially in order to ascertain condition, value, etc. 3. to determine the form, boundaries, position, extent, etc., of, as a part of the earth's surface, by linear and angular measurements and the application of the principles of geometry and trigonometry. 4. to collect sample opinions, facts, figures or the like in order to estimate the total overall situation.”
[6] See Vol. 2 at page 1891.
Taking into account the broad definition of survey (and noting survey is not otherwise defined under the MRA), it appears to me that the proper provision for the Court to use would be s.380 of the MRA which would allow the proposed activities. Not mining activities; but activities in surveying, taking samples of and determining the geological features of the land which is after all, in my view, the core question, should CCC’s view be correct.

Rule 250

Secondly, as regards rule 250, the provisions of rule 250 appear quite clear and allow the Court to make the orders sought. I do find that if what was to be sought was a mining activity, then s.402 would apply for all of the reasons that BMA has pointed out. However, I find the activities to be undertaken are not mining; they are a drilling activity akin to an activity undertaken by pastoralists and many other land holders, such as putting down a bore for water during which course of action they may go through a wash where they bring up sapphires, for instance, to the surface. It is only a mining activity if they inappropriately take those sapphires. It is an approved activity otherwise simply of drilling for water.[7]
[7] Assuming of course that all relevant permits are held.
In this matter, this is an activity not of mining or drilling for water; it is an activity to determine the existence of a resource for the purpose of very specific and prescriptive special legislation which only applies to these parties and has never been heard before and probably never will be dealt with again.
This is a special case, in special unchartered waters and for all of those reasons I believe the applicant, in this case, CCC should have the opportunity to have its case made as best it can make it, however, and here is where the important parts come for BMA and the third part of

the determination with respect to the impact on BMA’s activities. I accept that the Caval Ridge Mine is a huge mining operation and I accept that people of ill will could use the process to cause unreasonable delay to the project and as such cause immense damage to BMA. It is not this Court's intention in any way to have the Caval Ridge mining project impacted or held up by any activities authorised by these proceedings.

I must stress, I do not find CCC to be people of ill will; I simply point out that on the bare manner in which the application has been brought by CCC it would, in my view, be possible to use the activities to cause delay to BMA and I will not allow that to happen in any respect.

Is drilling necessary

Ms Chapple of Counsel for CCC has set out a summary of the evidence and reasons as to why she says drilling is necessary. As she stated in her submissions:
“Drilling is necessary
5.     It will be an ultimate question of fact for the Court to determine the extent of the coal resource in the MDLA364 land. In doing so, it will be guided by the opinions proffered by the experts engaged by each of the parties.
6.     Drilling is necessary in this case because:
a)it will confirm (or disprove) the existence and extent of the Group I and II coal in the resource estimate;
b)it will assist the Court in determining whether, on the balance of probabilities, Cherwell Creek has lost an opportunity to commercialise the resource;
c)it will enable the coal resource to be more accurately classified and assist the Court in assessing the probability of its existence;
d)it will increase knowledge of the coal quality; and
e)it will allow differences in survey data to be resolved.
7.     The first step toward quantifying the Applicant’s lost opportunity is to ascertain the likely extent and quality of the coal within the former MDLA364 land.
8.     Cherwell Creek and BMA’s expert geologists have prepared reports based on the data available. They agree that the geological data available for their assessment is ‘sparse’ and that much of the data comes from boreholes drilled outside MDLA364. They also agree that, as a consequence:
‘… the level of uncertainty about any coal tonnage estimate is expected to be high.’ (JER page 5).
9.     Mr Saunders says that the data which is presently available is consistent with an early stage exploration program only. He believes the lack of data will reduce the certainty with which he can estimate the extent of the coal and its quality.
10. The question whether Cherwell Creek has suffered loss is necessarily related to the ascertainment of the measurement of that loss. The uncertainty expressed by the experts is reflected in both the accuracy with which they can measure the actual resource, as well as the degree of certainty with which any tonnage can be described for the purposes of the JORC code (and consequently, the extent to which the Court might discount the probability of that opportunity being lost).
11. The experts disagree as to the existence of Group I and Group II coal (referred to as the Rugby Coal Measures by Mr Whitby) in the MDLA. No drilling data exists to confirm whether the seams exist or not within the MDLA 364 land. Mr Saunders is of the opinion that there is a moderate probability that coal suitable for underground extraction may occur at depth within the area (JER page 11; page 136 Saunders #1). He says that the further drilling program would enable him to confirm the existence of the Group I or Group II coal and allow for an estimate of its tonnage and quality. Mr Whitby says the probability of the existence of these coal seams ‘suitable for underground extraction’ is rare (JER page 11; page 136 Saunders affidavit). The presence or otherwise of this coal resource would have a significant impact on the likely extent of the coal resource in the area; and hence, the proper assessment of the extent of the coal resource and the opportunity lost by Cherwell Creek in not being able to commercialise it. Mr Saunders
estimates that if the coal seams are present, they could increase the resource over the entire area (using 1.40t/m3 density for coal) by 16.5Mt of in situ coal for each metre of thickness (JER page 11; page 45 and 136 Saunders #1). That equates to between 100MT to 171MT using a minimum seam thickness of 6.1m and a maximum seam thickness of 10.4m (page 45 exhibits Sanders #1).
12. Mr Thatcher is an expert civil and mining engineer engaged by Cherwell Creek to provide an expert report as to the likely mineability of the coal resource in the land, and the likely coal revenue generation costs. To do his report, he has to prepare a mine plan in respect of the coal resource. Because there is no geology data available for the Group I or II coal resource, it will not be possible for Mr Thatcher to prepare a mine plan which incorporates that resource. He says that this will affect the opinion he expresses in the expert report he has been asked to prepare. He is also of the opinion that the proposed drilling program would allow him to consider the inclusion of the Group I or II coal resource (if it is present) in the mine plan and allow him to express an opinion on the likely mineability and likely coal revenue generation costs with greater certainty.
13. The difference of opinion between Mr Saunders and Mr Whitby as to the extent of the coal resource (other than the Group I and II coal seams) at first glance, appears relatively minor. Mr Saunders estimate is that there is 25Mt; Mr Whitby’s estimate is 23Mt. However, it is the certainty with which those resources can be classified according to the JORC Code, based on the available data, which is where the experts diverge.
14. Based on the currently available data, Mr Saunders says that of the 25Mt of coal:
a)3Mt are ‘measured’;
b)1 Mt are ‘indicated’;
c)9Mt are inferred; and
d)12Mt are not able to be rated according to the JORC Code due to the lack of drill hole data or ‘points of observation’.
15.Mr Whitby says that of his estimate of 22Mt of coal:
a)4.25Mt is indicated; and
b)17.5Mt is inferred. (JER page 9 page 134 Saunders Exhibits).
16.And Mr Whitby says that:
‘Additional coal resources may exist in the BLS, however, further exploration would be required to determine whether or not such tonnes would be classified as a resource’ (Whitby report page 33; exhibited to Saunders affidavit at page 83). And he goes on to note that ‘should additional exploration delineate a BLS resource, the maximum depth of the coal deposit would be closer to 90m’ (Whitby report page 34; page 84 Saunders exhibits)
…
18. Mr Saunders says that additional samples would also increase knowledge about the quality of the coal. There is a shortage of coal quality information: only 6 boreholes in the area have coal quality data.
19. Mr Whitby’s report also acknowledges the lack of coal quality information. He says that approximately 5Mt of the DLWS and DL4 seams might contain hard coking coal, however notes that there is no coke strength analysis results to confirm this.
20. The experts have also identified some inconsistencies in the survey data. The differences might produce different opinions as to the depth of the coal seams, which in turn could impact on the question of the economic recoverability of the coal. Conducing further drilling would enable any differences in the survey datum to be reconciled.
The Proposed Drilling Program
21. Mr Saunders has proposed a drilling program that would overcome the issues he has identified with the lack of data. He has identified the location of the proposed drill holes by their coordinates and the target coal seam.
22. The drilling program is flexible. The drill hole locations can be varied as required, so as not to interfere with the BMA operations. It will take between 4 to 6 months to complete.
23. Mr Boys, the solicitor in charge of the matter for Cherwell Creek, has confirmed that the Managing Director of Cherwell Creek will direct the applicant and its agents to notify the project planners of ML70403 of the drilling program and the location of the drill holes and instruct them to either move the drill hole or not drill the site if it cannot be moved so as to not interfere with the construction or development of the site.”

Mr Doyle SC and Mr Stumer of Counsel for BMA have also assisted the Court by providing a summary of reasons as to why in their view, the proposed drilling activities are not justified. In their submissions they assert as follows:
“Supposed benefits of Proposed Drilling
…
38. Cherwell proposes to conduct drilling on Mining Lease 70403 in order to obtain further information about the quality and extent of the coal resource under that land.
39. However, any evidence that might be obtained from such drilling will be of limited relevance and will not provide material assistance to the court in resolving the dispute between the parties.
40. First, information obtained from drilling conducted after 2008 cannot be relevant to the issue of whether BMA is liable to pay compensation to Cherwell.
41. Cherwell’s case is that had it not been for the passage in 2008 of the Amending Act it would have:
(a)been granted MDL364 in or about May 2008;
(b)applied for, and been granted, approval for extraction of a bulk sample commencing in the first quarter of 2009;
(c)marked out (as that term is used in the MRA) and applied for a mining lease in respect of the area contained within MDLA364 by about June 2008;
(d)been granted a mining lease in respect of the area comprised within MDLA364 by about December 2009;
(e)commenced the extraction and selling of coal from the coal resource:
(i)in respect of the bulk sample, in about April 2009; and
(ii)in respect of the mine production, in about January 2010;
(f)continued the extraction and selling of coal from the coal resource until approximately December 2017
42. In determining whether Cherwell would have been granted MDL364 in May 2008 and obtained a mining lease based on an application submitted in June 2008, the focus is only on the material that was available to Cherwell in May and June 2008.
43. As at May and June 2008, Cherwell had not conducted the drilling that is now proposed. Cherwell had submitted MDLA 364 on the basis of the information that was then available to it. Any application for a mining lease submitted in June 2008 would have relied upon the same information.
44. Cherwell cannot improve its position by relying on material that was not, and could not have been, submitted by Cherwell in support of its applications and considered by the relevant authorities in May and June 2008.
45. This is illustrated by the proposal to drill deep holes to determine whether the Rugby Coal Measures exist on Mining Lease 70403. Since the presence of the Rugby Coal Measures on the area of former MDLA364 was not able to be determined on the information available in 2008 it could not have been taken into account by the relevant authorities in deciding whether to grant tenure to Cherwell.
46. At best, information obtained from the proposed drilling would be relevant to the extent of compensation payable. That question will arise only if it is first determined that Cherwell would have been granted MDL364 and a subsequent mining lease.
47. Secondly, despite the limitations on the data available to them, the experts engaged by the parties have each been able to generate models of the resource and estimate the extent of the resource.
48. Based on the data available to them, the experts have reached conclusions that are not dissimilar. Specifically, the joint report states (on page 10):
It is agreed between the authors that the deposit within the MDLA364 area contains between 23 and 25 million tonnes (Mt). MBGS [Whitby] is of the view that approximately 22 Mt can be classified as a resource in accordance with the JORC Code. QGESS [Saunders] has classified 13 Mt as a resource in accordance with the JORC Code and approximately 12 Mt not able to be classified.
49. Hence, the principal disagreement between the experts is as to the classification of the resource under the JORC code. Cherwell proposes an extensive drilling program in order to allow the experts to opine with greater certainty about the quality and extent of the coal resource and, presumably, to narrow the difference of opinion between them. That is an inefficient and uneconomical process where the difference between the experts is limited.
50. Thirdly, the proposed drilling will have the effect of delaying the conduct of the proceeding because:
(a)the drilling itself will take between four to six months to complete;
(b)once the drilling is completed the geological experts (Mr Saunders and Mr Whitby) will be required to produce further reports taking into account the new information;
(c)each of the subsequent expert reports required for the proceedings will be delayed because they are dependent on the conclusions reached by the geological experts.
…
Prejudice to BMA and its Activities
60. The Amending Act was passed in order to allow BMA to have secure tenure and access to the area of Mining Lease 70403 for the purpose of locating infrastructure for the Caval Ridge mine.
61. The proposed drilling would impede and delay BMA’s plans for the development of infrastructure on Mining Lease 70403. That would be inconsistent with the purposes of the Amending Act.
62. Mr Willmott is the Project Director for the Caval Ridge Project. He has deposed to the difficulties that would be caused by the proposed drilling.
…
(g)if the proposed drilling is carried out, certain activities of BMA on ML70403 will either have to cease or be curtailed due to risks of injury or property damage that would exist if those activities were carried out in conjunction with exploration drilling;
(h)the proposed drilling program will delay the completion of infrastructure by (i) delaying construction of infrastructure in areas where bore holes will be drilled; (ii) delaying the construction of infrastructure with materials from quarries and borrow pits; (iii) delaying activities such as topsoil removal, drilling, blasting and excavation; and (iv) if the drilling program affects the integrity of existing infrastructure, requiring the remediation or replacement of that infrastructure;
(i)the commencement of BMA’s operations on the Caval Ridge Project is likely to be delayed by 1 to 3 months; and
(j)BMA will suffer financial losses caused by the delay. Mr Willmott deposes that overhead project costs alone would be in the order of $25 million per month for any period of delay to BMA’s programs on Mining Lease 70403. Further, he deposes that a three month delay would result in revenue losses of approximately US$48 million.
…
67. In any case, Mr Willmott deposes that no drilling program could be conducted on Mining Lease 70403 that would avoid delays to infrastructure.
68. Further, any order for drilling will require extensive supervision and co-operation by BMA, the coal mine operator, Bechtel, and the Site Senior Executive. That supervision and co-operations will include:
(a)co-ordinating the safe transport of personnel to the drilling sites;
(b)obtaining environmental permits for every borehole;
(c)undertaking an induction program of three to five days for Cherwell’s personnel;
(d)inspecting and approving all equipment to be brought onto the site;
(e)reviewing and approving procedures to be used by Cherwell personnel; and
(f)signing off on the completion and remediation of drill sites.
…
70. That is an unreasonable burden to impose on BMA in the conduct of its lawful activities on Mining Lease 70403.”
As I have already indicated (and further refer to later in these reasons), CCC should be allowed the opportunity to carry out drilling activities in order to ascertain “the likely extent and quality of the MDLA364 coal resource”.[8]
[8] See s.722G(5)(a) MRA.

A Fishing Exercise?

I will turn now in more detail to the specific question as to whether or not the application is a fishing exercise. An important aspect of this case, which must always be remembered, is its uniqueness. Part 18A of the MRA which includes s.722G was included in the MRA, as the Minister responsible for the MRA put it in his second reading speech[9] “to address a historic anomaly dating back to the 1980's” and “most importantly to secure the current and future operations of the Peak Downs Coal Mine”.
[9] Taken from Respondent’s submission, filed on 6 December 2012, at para 25(c), quoting the Minister’s second reading speech.

Clearly this is specific purpose legislation. It has been created in order to rectify a historic anomaly. BMA effectively obtained the right to expand the operation of the Peak Downs Coal Mine. CCC had its opportunity to obtain enhanced tenures (for the most part) converted to a right to claim compensation but such compensation was not to be payable by the State[10] but by BMA.[11]
[10] See s.722F.
[11] See s.722G.
I have no doubt that at trial a significant amount of time will be put into attempting to distil the meaning of the unique compensation provisions contained within s.722G. BMA asserts that knowledge of the resource should effectively “be frozen in time” as at May 2008. I do not propose, for the purposes of this application, to make any determination as to whether that view is correct or not. This application should not be used as a backdoor vehicle to have a significant point determined in essentially a preliminary way. BMA has already sought, and failed, in a direct attempt to have a different preliminary point determined by the Court.
Part 18A of the MRA makes reference as a matter of fact to the “MDLA364 coal resource”, it then goes on to define MDLA364 coal resource as follows:[12]
“MDLA364 coal resource means a coal resource in the land, that as at the beginning of 14 April 2008, was the subject of application for mineral development licence 364.”
[12] See s.722G(8).
CCC contends that this means all of the coal actually existing in the land, the subject of MDLA364. BMA contends that it merely means only so much of the coal actually referred to in the MDL application. On the basis of the evidence currently before me, the difference between the two views could be well in excess of 100 million tonnes of coal.

In my view it is open to CCC to assert that its application for MDL364 incorporated all coal lying within the physical boundaries of MDL364 including the so called Rugby seam. If CCC is correct, it follows that the facts as to the actual amount of coal within MDL364 are very relevant to its case. If, at the end of the day, CCC is wrong, it can expect to pay a heavy price by way of costs.
More importantly, the ascertainment of the actual coal reserves within MDL364 is not a fishing exercise but is arguably an important step in the compensation process contemplated by part 18A of the MRA.

CCC to pay BMA compensation for delay caused by Drilling Activities

There are two other very important points that need to be dealt with. The first relates to costs of any delay that may actually be occasioned to BMA. In the material there is no undertaking by CCC to pay any of those costs. I do intend including an order that should any costs be reasonably incurred and ascertainable by BMA as a consequence of the drilling

activities, then those costs are to be paid by CCC in a quantum to be agreed between the parties, or, failing agreement, to be referred back to the Court.

I propose this order acknowledging the large dollars we are dealing with and with the problems of delay, but also hoping that that won’t be necessary and that working together the parties will be able to get around any problems, however putting the obligation squarely on CCC to ensure that happens. Obviously, if CCC believes that BMA is being obstructionist and that the costs were only occasioned because of some action on the part of BMA, then that is something I would be happy to hear in any application to actually determine any quantum of costs that should be payable.

Mediation

Secondly, I can, unfortunately, see all over this huge scope for disputes to arise as to what bore hole is in or out, or where a bore hole has been moved to or not moved to. It is one of these things that can either be dealt with very pragmatically by the parties, or not.
Accordingly, I require a dispute resolution process to be written into the orders as well. And in that regard, I had hoped that I could have a Member of the Court hear any dispute resolution process. The trouble is, the Court is running out of Members that can do anything much in this case. So I would require the parties to either themselves, as necessary, engage a mediator and jointly fund that mediator, or for the Judicial Registrar of the Court to handle any disputes. There should be a timeline between the two parties set up for any disputes to be handled, so there is no delay for either side, and in the event of a dispute not being handled within that timeline for it to be brought back to the Court urgently.

[After hearing additional submissions from the parties and after allowing the parties time to discuss between themselves the form of orders appropriate to give effect to this decision, the following orders were made.]
Orders

The Applicant and its agents are permitted to enter upon the area of land which comprised the former MDLA364, which lies within the boundaries of Mining Lease 70403, more particularly described as Lots 12 and 13 on SP151669 and Lot 16 on SP163605 (“the MDLA364 Land”) in order to inspect, take samples of the coal resource, and to undertake drilling in the locations identified in schedule 1 and in accordance with the attached schedule 2 and schedule 3 (“the Drilling Program”) the terms of which form part of this Order.
In the event of any dispute arising between the parties concerning the implementation of the Drilling Program on the MDLA364 Land:
2.1within 1 business day of a party becoming aware of a dispute, the disputing party will write to the other party:
(a)     setting out the nature of the dispute;
(b)     nominating a panel of three mediators (such mediators to be legal practitioners or other independent qualified personnel who have experience in the mining industry relevant to the dispute of not less than five years experience), confirming their fees and availability to hear the dispute within the timetable set out in this Order; and
(c)     confirming the days which the disputing party is available to attend a mediation within the timeframes set out in this Order;
("the Dispute Notice")
2.2within 1 business day of receiving the Dispute Notice, the other party will write to the disputing party:
(a)     setting out their response to the issue in dispute;
(b)     nominating one of the mediators to hear the dispute; and
(c)     confirming the date which they are available to attend a mediation within the timeframes set out in this Order.
("the Response Notice")
2.3The Mediation will take place within 3 business days of the disputing party receiving the Response Notice at a place agreed between the parties or as otherwise nominated by the Mediator.
2.4The parties will each pay half of the Mediators fees in conducting the mediation, but will otherwise bear their own costs of the mediation.
2.5In the event that the Mediation does not resolve the dispute, the disputing party must write to the Court advising of the existence of the dispute and its failure to settle at the mediation and provide the Court with a copy of the Dispute Notice and the Response Notice.
2.6Upon receiving notice of the existence of the dispute, the Court will relist the matter for hearing at the earliest opportunity.
The Applicant will pay to the Respondents any loss, damages, costs or expenses reasonably suffered (Loss) by them as a result of the Drilling Program in accordance with Order 4.
In the event that the Respondents allege that they have incurred Loss caused by the Drilling Program in accordance with Order 3:
4.1the Respondents will write to the Applicant setting out the allegation, including the cause of the Loss, the nature of the Loss, and details of the Loss which is alleged to have been incurred by them together with any source documents supporting the claim,
4.2the Applicant will write to the Respondents advising:
(a)    whether it accepts the claim in full or in part or at all; and
(b)     the basis for its objection (if any) to the claim;
4.3in the event that the Applicant and the Respondents are not able to agree as to the cause and/or amount of the alleged Loss:
(a)     the Respondents will file an application in the Court together with an affidavit setting out the nature of the claim and the amount of the alleged Loss, together with any supporting documentation;
(b)     the Court will list the matter for directions and/or hearing at the earliest opportunity.
The parties be at liberty to apply on 3 days notice.

SEE ATTACHED SCHEDULES 1-3.
PA SMITH

MEMBER OF THE LAND COURT

ANNEXURE ONE

MRA1332-08

Cherwell Creek Coal Pty Ltd
-v-
BHP Queensland Coal Investments Pty Ltd & Ors

Decision delivered 24 January 2012

RE: Cherwell Creek Coal Pty Ltd request for drilling activity on ML70403

The tables that follow make specific reference to time periods, work procedures and various proposed drill holes sought by Cherwell Creek Coal Pty Ltd (‘CCC’) on BHP Queensland Coal Investments Pty Ltd and Ors (‘BMA’s’) Caval Ridge Project relevant to ML70403. In arriving at the conclusions that follow, the Court has undertaken its own exercise of collating all the information referrable to each proposed exploration hole and extrapolating (as best it can) that information in order to gauge the likely impact on BMA’s activities, particularly in light of exhibit marked ‘APW-4’ attached to Mr Willmott’s 1^st affidavit filed 4 December 2012 and all related information.

Preliminary requirements
28 January – 8 February 2013 (or as soon as possible thereafter)

1.   All CCC personnel and their agents conducting the drilling activities are to attend induction by Betchel/BMA[13]; and
[13]     See Mr Willmott’s 1^st affidavit filed on 4 December 2012 at para’s 37-38 page 12
2.   All CCC paperwork, equipment and procedures to be reviewed, assessed and (if possible) approved.[14]
[14]     Ibid

4 February – 1 March 2013

Court approved drilling activities to be drilled by CCC with Betchel/BMA/Site Senior Executive (SSE) personnel present in the Southern district of ML70403[15] as follows:

[15] BMA topsoil tasks to begin in March 2013; see yearly workload projection marked ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012.

· H29,	· H30,	· H31,	· H32,
· H33 /H35,	· H34,	· H36,	· H38,
· H41,	· H42,	· H43,	· N_BAS1_4,
· N_BAS1_5	· BAS1_7	· N_BAS1_8	· DEEP7,
· N_DEEP9.	· N_DEEP8 / N_BAS1_6

If CCC is unable to complete drilling activities for the above mentioned holes contained within the Southern district by 1 March 2013, the Court’s authority for the drilling activity ceases and such authority can only be revived by further order of the Court.

Drilling activities are not to be conducted within the Southern district in relation to the following proposed holes:

· H39,	· H44,	· H45,	· H46,
· H47,	· H48	· BAS1_9	· DEEP10

Court Notes:

Approved Holes
H33 / H35	Hole identifiers inter-change but both sites are appropriate. CCC must notify BMA within 5 business days hereof of the proper identifier for each of these holes.
N_BAS1_4,	See Saunders 2^nd affidavit para 12(b) page 3
N_BAS1_5:	See Saunders 2^nd affidavit para 12 (c) page 3
N_DEEP 8 / N_BAS1_6:	Located between the haul road and diversion ditch, refer to Willmott’s 1^st affidavit para 23, page 7 and para 25, page 8. Saunders rebuttal 2^nd affidavit para 14(c) page3 and para 12 (d) page 3. It is assumed by the Court that these holes are in the same location based on the map and they are permitted on the basis that they are co-located.
N_BAS1_8:	Located near sedimentary dam, see Willmott’s 1^st affidavit para 24 page 7, Saunders rebuttal in 2^nd affidavit at para 13 (a) page 3
N_DEEP9:	See Saunders 2^nd affidavit at para 14 (d) page 3; See Willmott’s 2^rd affidavit para 6(d) page 3; May proceed if the hole is located within ML70403
Non-approved Holes
H39	Appears to be located on the boundary line
H45, H46, H47, H48	See Willmott’s 1^st affidavit para’s 27 & 28 pages 8 & 9 Located within the area of the borrow pit
*H44, H45, H46	Mr Saunders has indicated that these holes may have been marked on the map incorrectly; see Mr Saunders 2^nd affidavit at para’s 16-17 page 4
BAS1_9	Appears to be located on or close to infrastructure
DEEP10:	Located within 1 metre of the water mine dam, see Willmott’s 1^st affidavit at para 24 page 7; also located near diversion structure (however, this is not reflected on the map) see para 25, page 8. Saunders rebuttal in 2^nd affidavit at para 13 (c) at page 3 Positions of DEEP10 and N_DEEP10 have not been identified on the map

4 February -29 March 2013

Court approved drilling activities to be drilled by CCC with Betchel/BMA/SSE personnel present in the Central district of ML70403[16] as follows:

[16] BMA topsoil tasks to begin in March 2013; see yearly workload projection marked ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012.

· H19,	· H20,	· H21,	· H22,
· H23,	· H24,	· H25,	· H27,
· H28,	· BAS1_3* · (refer to Notes below)	· N_BAS1_4,	· DEEP3,
· N_DEEP4,	· DEEP5,	· DEEP6

If CCC is unable to complete drilling activities for the above mentioned holes contained within the Central district by 29 March 2013, the Court’s authority for the drilling activity ceases and such authority can only be revived by further order of the Court.

Drilling activities are not to be conducted within the Central district in relation to the following proposed holes:

· BAS1_1

· N_BAS1_2,

Court Notes:

Approved Holes
BAS1_3	Located on road that provides access to ramp, see Willmott’s 1^st affidavit at para 23 at page 7. Saunders rebuttal in 2^nd affidavit at para 12(a) page 3; proposal to move it 250m E/NE however this new location has not been reflected on the map. As it stands, the current location is not permitted, however Mr Saunders relocation is permitted provided CCC notify BMA within 5 business days hereof of the precise details of the new location of this hole.
N_DEEP4:	Located near sedimentary dam, see Willmott’s 1^st affidavit at para 24 page 7. Saunders rebuttal in 2^nd affidavit at para 13(b) page 3. CCC must ensure that there is no impact caused to the sedimentary dam.
N_BAS1_4	Located near the water fill point, see Saunders 2^nd affidavit at para 12(b) page 3. CCC must ensure that there is no impact caused to the water fill point
Non-approved Holes
BAS1_1	Located within diversion structures and located near embankment, see Willmott’s 1^st affidavit at para 25 page 8
N_BAS1_2	See Saunders 2^nd affidavit at para 14(a) page 3 See Willmott’s 2^nd affidavit at para 6(c) page 3

1 April – 31 July[17]

[17] Explosives have been projected to begin in June 2013 – therefore a 1000m radius exclusion zone is required to be free of all personnel, see ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012,

Court approved drilling activities[18] to be drilled by CCC with Betchel/BMA/SSE personnel present in the Northern district of ML70403[19] as follows:

[18] Longer time period given as BMA do not appear to be conducting any tasks in the Northern district until October 2013; unless there are issues with hauling drill samples out of the Northern district during April – July due to explosive tasks occurring in Central and Southern districts, see Mr Willmott’s 1^st affidavit filed 4 December 2012 para 30 pages 9-10 re having the rod’s in the ground while explosives are in action. The parties are to liaise with each other to ensure minimal impact to each others activities and in particular to ensure that BMA’s explosive regime is not delayed.

[19] BMA topsoil tasks to begin in March 2013; see yearly workload projection marked ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012.

· H1,	· H2,	· H3,	· H4,
· H5,	· H11,	· H12,	· H13,
· H14,	· H15,	· H16,	· H17,
· H18,	· H49,	· H50,	· H51,
· H52,	· H53,	· DEEP1,	· DEEP2* (refer to Notes below)

If CCC is unable to complete drilling activities for the above mentioned holes contained within the Northern district by 31 July 2013, the Court’s authority for the drilling activity ceases and such authority can only be revived by further order of the Court.

Drilling activities are not to be conducted within the Northern district in relation to the following proposed holes:

· H6,	· H7,	· H8,	· H9,
· H10,

Court Notes:

Approved Holes
DEEP2	Located in or around the Horse Creek Watershed (however, this not reflected on the map) see Willmott’s 1^st affidavit at para 32 page 10. Saunders rebuttal in 2^nd affidavit at para 21 page 5. Details of the boundary lines and the environmental conditions imposed by a watershed are at best vague. DEEP2 hole may proceed on the proviso that all environmental factors regarding the Watershed are taken into account.
Non-approved Holes
H6, H7, H8, H9, H10,	See Willmott’s 1^st affidavit at para 26 page 8. Saunders rebuttal at 2^nd affidavit at para 15 pages 3-4. These holes are too close to or indeed inside the Quarry boundary.

Following completion of each drilling activity

Completion and/or remediation of all Court approved drill sites to be assessed and signed off by the appropriate environmental officer at the earliest opportunity.

ANNEXURE TWO
ANNEXURE THREE

MRA1332-08

Cherwell Creek Coal Pty Ltd
-v-
BHP Queensland Coal Investments Pty Ltd & Ors

Decision delivered 24 January 2012

RE: Cherwell Creek Coal Pty Ltd request for drilling activity on ML70403

Preliminary requirements
28 January – 1 March 2013 – (or as soon as possible thereafter)

1.   All CCC personnel and their agents conducting the drilling activities are to attend induction by Betchel/BMA[20]; and
[20]     See Mr Willmott’s 1^st affidavit filed on 4 December 2012 at para’s 37-38 page 12.
2.   All CCC paperwork, certification, equipment and procedures to be reviewed, assessed and (if possible) approved.[21]
[21]     Ibid

1 March – 30 June 2013 – Southern District of ML70403

Court approved drilling activities to be drilled by CCC with Betchel/BMA/Site Senior Executive (SSE) personnel present in the Southern district of ML70403[22] as follows:

[22] BMA topsoil tasks have been delayed and have now been projected to commence in July 2013 and not March 2013 as previously projected, see Mr Willmott’s 3^rd affidavit filed on 23 January 2013; see also yearly workload projection marked ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012.

· H29,	· H30,	· H31,	· H32,
· H33 /H35,	· H34,	· H36,	· H38,
· H41,	· H42,	· H43,	· N_BAS1_4,
· N_BAS1_5	· BAS1_7	· N_BAS1_8	· DEEP7,
· N_DEEP9.	· N_DEEP8 / N_BAS1_6

If CCC is unable to complete drilling activities for the above mentioned holes contained within the Southern district by 30 June 2013, the Court’s authority for the drilling activity ceases and such authority can only be revived by further order of the Court.

Drilling activities are not to be conducted within the Southern district in relation to the following proposed holes:

· H39,	· H44,	· H45,	· H46,
· H47,	· H48	· BAS1_9	· DEEP10

Court Notes:

Approved Holes
H33 / H35	Hole identifiers inter-change but both sites are appropriate. CCC must notify BMA within 5 business days hereof of the proper identifier for each of these holes.
N_BAS1_4,	See Saunders 2^nd affidavit para 12(b) page 3
N_BAS1_5:	See Saunders 2^nd affidavit para 12 (c) page 3
N_DEEP 8 / N_BAS1_6:	Located between the haul road and diversion ditch, refer to Willmott’s 1^st affidavit para 23, page 7 and para 25, page 8. Saunders rebuttal 2^nd affidavit para 14(c) page3 and para 12 (d) page 3. It is assumed by the Court that these holes are in the same location based on the map and they are permitted on the basis that they are co-located.
N_BAS1_8:	Located near sedimentary dam see Willmott’s 1^st affidavit para 24 page 7, Saunders rebuttal in 2^nd affidavit at para 13 (a) page 3
N_DEEP9:	See Saunders 2^nd affidavit at para 14 (d) page 3; See Willmott’s 2^rd affidavit para 6(d) page 3; May proceed if the hole is located within ML70403
Non-approved Holes
H39	Appears to be located on the boundary line
H45, H46, H47, H48	See Willmott’s 1^st affidavit para’s 27 & 28 pages 8 & 9 Located within the area of the borrow pit
*H44, H45, H46	Mr Saunders has indicated that these holes may have been marked on the map incorrectly; see Mr Saunders 2^nd affidavit at para’s 16-17 page 4
BAS1_9	Appears to be located on or to close to infrastructure
DEEP10:	Located within 1 metre of the water mine dam, see Willmott’s 1^st affidavit at para 24 page 7; also located near diversion structure (however, this is not reflected on the map) see para 25, page 8. Saunders rebuttal in 2^nd affidavit at para 13 (c) at page 3 Positions of DEEP10 and N_DEEP10 have not been identified on the map

1 March – 30 June 2013 - Central District of ML70403

Court approved drilling activities to be drilled by CCC with Betchel/BMA/SSE personnel present in the Central district of ML70403[23] as follows:

[23] BMA topsoil tasks have been delayed and have now been projected to commence in July 2013 and not March 2013 as previously projected. See Mr Willmott’s 3^rd affidavit filed on 23 January 2013; see also yearly workload projection marked ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012.

· H19,	· H20,	· H21,	· H22,
· H23,	· H24,	· H25,	· H27,
· H28,	· BAS1_3* · (refer to Notes below)	· N_BAS1_4,	· DEEP3,
· N_DEEP4,	· DEEP5,	· DEEP6

If CCC is unable to complete drilling activities for the above mentioned holes contained within the Central district by 30 June 2013, the Court’s authority for the drilling activity ceases and such authority can only be revived by further order of the Court.

Drilling activities are not to be conducted within the Central district in relation to the following proposed holes:

· BAS1_1

· N_BAS1_2,

Court Notes:

Approved Holes
BAS1_3	Located on road that provides access to ramp, see Willmott’s 1^st affidavit at para 23 at page 7. Saunders rebuttal in 2^nd affidavit at para 12(a) page 3; proposal to move it 250m E/NE however this new location has not been reflected on the map. As it stands, the current location is not permitted, however Mr Saunders relocation is permitted provided CCC notify BMA within 5 business days hereof of the precise details of the new location of this hole.
N_DEEP4:	Located near sedimentary dam - see Willmott’s 1^st affidavit at para 24 page 7. Saunders rebuttal in 2^nd affidavit at para 13(b) page 3. CCC must ensure that there is no impact caused to the sedimentary dam.
N_BAS1_4	Located near the water fill point – see Saunders 2^nd affidavit at para 12(b) page 3. CCC must ensure that there is no impact caused to the water fill point
Non-approved Holes
BAS1_1	Located within diversion structures and located near embankment – see Willmott’s 1^st affidavit at para 25 page 8
N_BAS1_2	See Saunders 2^nd affidavit at para 14(a) page 3 See Willmott’s 2^nd affidavit at para 6(c) page 3

1 March – 31 July 2013 - Northern District of ML70403

Court approved drilling activities to be drilled by CCC with Betchel/BMA/SSE personnel present in the Northern district of ML70403[24] as follows:

[24] BMA topsoil tasks have been delayed and have now been projected to commence in July 2013, it is assumed that BMA will commence topsoiling tasks in the same area’s reflected in the yearly workload projection marked ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012. Therefore, CCC should have ample time and space within the Northern district to conduct and complete the approved drilling activities within the allocated time as set out above.

· H1,	· H2,	· H3,	· H4,
· H5,	· H11,	· H12,	· H13,
· H14,	· H15,	· H16,	· H17,
· H18,	· H49,	· H50,	· H51,
· H52,	· H53,	· DEEP1,	· DEEP2* (refer to Notes below)

Drilling activities are not to be conducted within the Northern district in relation to the following proposed holes:

· H6,	· H7,	· H8,	· H9,
· H10,

Court Notes:

Approved Holes
DEEP2	Located in or around the Horse Creek Watershed (however, this not reflected on the map) see Willmott’s 1^st affidavit at para 32 page 10. Saunders rebuttal in 2^nd affidavit at para 21 page 5. Details of the boundary lines and the environmental conditions imposed by a watershed are at best vague. DEEP2 hole may proceed on the proviso that all environmental factors regarding the Watershed are taken into account.
Non-approved Holes
H6, H7, H8, H9, H10,	See Willmott’s 1^st affidavit at para 26 page 8. Saunders rebuttal at 2^nd affidavit at para 15 pages 3-4. These holes are too close to or indeed inside the Quarry boundary.

Following completion of each drilling activity

Completion and/or remediation of all Court approved drill sites to be assessed and signed off by the appropriate environmental officer at the earliest opportunity.

Schedule 1(a)

MDLA 364 PROPOSED ADDITIONAL DRILLING SITES FOR DYLO, DYL4 AND BAS1 SEAMS
Datum: Australian_Geocentric_1994_(GDA94)					Feb-13
Site Name	Zone Number	Zone Character	Easting	Northing
H1	55	K	608133	7559544
H2	55	K	607991	7559399
H3	55	K	608108	7559240
H4	55	K	608288	7559282
H5	disallowed
H6	55	K	608095	7558808
H7	55	K	608259	7558695
H8	55	K	608275	7558892
H9	disallowed
H10	disallowed
H11	55	K	608075	7558607
H12	55	K	608078	7558352
H13	55	K	608227	7558265
H14	55	K	607316	7558178
H15	55	K	607142	7558649
H16	55	K	606981	7558333
H17	55	K	606993	7557645
H18	55	K	607307	7557794
H19	55	K	607226	7557387
H20	55	K	606981	7557266
H21	55	K	608305	7557466
H22	55	K	608596	7557562
H23	55	K	608138	7557178
H24	55	K	608183	7556926
H25	55	K	608162	7556718
H26	55	K	607507	7555440
H27	55	K	608010	7555263
H28	55	K	608075	7555121
H29	55	K	607946	7553713
H30	55	K	607919	7553488
H31	55	K	607917	7553082
H32	55	K	607891	7552975
H33	55	K	608219	7552807
H34	55	K	608306	7552755
H35	55	K	608407	7552690
H36	55	K	608520	7552552
H37	55	K	608555	7552479
H38	55	K	608646	7552468
H39	disallowed
H40	55	K	608676	7552403
H41	55	K	608739	7552346
H42	55	K	608819	7552304
Cont.
Site Name	Zone Number	Zone Character	Easting	Northing
H43	55	K	608896	7552232
H44	disallowed
H45	disallowed
H46	disallowed
H47	disallowed
H48	disallowed
H49	55	K	607636	7559014
H50	55	K	607580	7558963
H51	55	K	607643	7558830
H52	55	K	607925	7558350
H53	55	K	607002	7558994

Schedule 1(b)

MDLA 364 PROPOSED ADDITIONAL DRILLING SITES FOR BAS1 SEAM
Datum: Australian_Geocentric_1994_(GDA94)					Feb-13
Site Name	Zone Number	Zone Character	Easting	Northing	New site name	EastingV2	NorthingV2
BAS1_1	disallowed
BAS1_2	disallowed
BAS1_3	55	K	607270	7555083	(as amended by Schedule 2)	N_BAS1_3	607501	7555179
BAS1_4	55	K	607180	7553979	(as amended by Schedule 2)	N_BAS1_4	607411	7554075
BAS1_5	disallowed
BAS1_6	55	K	607869	7552577	(as amended by Schedule 2)	N_BAS1_6	608010	7552718
BAS1_7	55	K	608976	7551890
BAS1_8	55	K	609349	7551534	(as amended by Schedule 2 and parties agreement on 8/2/2013*)	N_BAS1_8	609574	7551534
BAS1_9	disallowed	K
* footnote - or to any appropriate point within a 25 metre radius

Schedule 1(c)

MDLA 364 PROPOSED DEEP DRILLING SITES					Feb-13
Datum: Australian_Geocentric_1994_(GDA94)
Site Name	Zone Number	Zone Character	Easting	Northing	New site name	EastingV2	NorthingV2
DEEP1	55	K	607000	7559500
DEEP2	55	K	607500	7558500
DEEP3	55	K	608000	7557500
DEEP4	55	K	607304	7556560	(as amended by Schedule 2)	N_DEEP4	608104	7556560
DEEP5	55	K	608000	7555500
DEEP6	55	K	607500	7554500
DEEP7	55	K	607000	7553500
DEEP8	55	K	607869	7552577	(as amended by Schedule 2)	N_DEEP8	608369	7552577
DEEP9	Not pursued
DEEP10	disallowed

Schedule 2

MRA1332-08

Cherwell Creek Coal Pty Ltd
-v-
BHP Queensland Coal Investments Pty Ltd & Ors

Decision delivered 24 January 2012

RE: Cherwell Creek Coal Pty Ltd request for drilling activity on ML70403

Preliminary requirements
4 February – 1 April 2013 – (or as soon as possible thereafter)

1.   All CCC personnel and their agents conducting the drilling activities are to attend induction by Betchel/BMA[25]; and
[25]     See Mr Willmott’s 1^st affidavit filed on 4 December 2012 at para’s 37-38 page 12.
2.   All CCC paperwork, certification, equipment and procedures to be reviewed, assessed and (if possible) approved.[26]
[26]     Ibid

1 March (or as soon as possible thereafter upon completion of induction) – 30 June 2013 – Southern District of ML70403

Court approved drilling activities to be drilled by CCC with Betchel/BMA/Site Senior Executive (SSE) personnel present in the Southern district of ML70403[27] as follows:

[27] BMA topsoil tasks have been delayed and have now been projected to commence in July 2013 and not March 2013 as previously projected, see Mr Willmott’s 3^rd affidavit filed on 23 January 2013; see also yearly workload projection marked ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012.

· H29,	· H30,	· H31,	· H32,
· H33 /H35,	· H34,	· H36,	· H38,
· H41,	· H42,	· H43,	· N_BAS1_4,
· BAS1_7	· N_BAS1_8	· DEEP7,	· N_DEEP8 / N_BAS1_6

Drilling activities are not to be conducted within the Southern district in relation to the following proposed holes:

· H39,	· H44,	· H45,	· H46,
· H47,	· H48	· N_BAS1_5	· BAS1_9
· N_DEEP9	· DEEP10

Court Notes:

Approved Holes
H33 / H35	Hole identifiers inter-change but both sites are appropriate. CCC must notify BMA within 5 business days hereof of the proper identifier for each of these holes.
N_BAS1_4,	See Saunders 2^nd affidavit para 12(b) page 3
N_DEEP 8 / N_BAS1_6:	Located between the haul road and diversion ditch, refer to Willmott’s 1^st affidavit para 23, page 7 and para 25, page 8. Saunders rebuttal 2^nd affidavit para 14(c) page3 and para 12 (d) page 3. It is assumed by the Court that these holes are in the same location based on the map and they are permitted on the basis that they are co-located.
N_BAS1_8:	Located near sedimentary dam see Willmott’s 1^st affidavit para 24 page 7, Saunders rebuttal in 2^nd affidavit at para 13 (a) page 3
Non-approved Holes
H39	Appears to be located on the boundary line
H45, H46, H47, H48	See Willmott’s 1^st affidavit para’s 27 & 28 pages 8 & 9 Located within the area of the borrow pit
*H44, H45, H46	Mr Saunders has indicated that these holes may have been marked on the map incorrectly; see Mr Saunders 2^nd affidavit at para’s 16-17 page 4
N_BAS1_5
BAS1_9	Appears to be located on or to close to infrastructure
N_DEEP9
DEEP10:	Located within 1 metre of the water mine dam, see Willmott’s 1^st affidavit at para 24 page 7; also located near diversion structure (however, this is not reflected on the map) see para 25, page 8. Saunders rebuttal in 2^nd affidavit at para 13 (c) at page 3 Positions of DEEP10 and N_DEEP10 have not been identified on the map

1 March (or as soon as possible thereafter upon completion of induction – 30 June 2013 - Central District of ML70403

Court approved drilling activities to be drilled by CCC with Betchel/BMA/SSE personnel present in the Central district of ML70403[28] as follows:

[28] BMA topsoil tasks have been delayed and have now been projected to commence in July 2013 and not March 2013 as previously projected. See Mr Willmott’s 3^rd affidavit filed on 23 January 2013; see also yearly workload projection marked ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012.

· H19,	· H20,	· H21,	· H22,
· H23,	· H24,	· H25,	· H27,
· H28,	· N_BAS1_3* · (refer to Notes below)	· N_BAS1_4,	· DEEP3,
· N_DEEP4,	· DEEP5,	· DEEP6

Drilling activities are not to be conducted within the Central district in relation to the following proposed holes:

· BAS1_1

· N_BAS1_2,

Court Notes:

Approved Holes
N_BAS1_3	Located on road that provides access to ramp, see Willmott’s 1^st affidavit at para 23 at page 7. Saunders rebuttal in 2^nd affidavit at para 12(a) page 3; proposal to move it 250m E/NE however this new location has not been reflected on the map.
N_DEEP4:	Located near sedimentary dam - see Willmott’s 1^st affidavit at para 24 page 7. Saunders rebuttal in 2^nd affidavit at para 13(b) page 3. CCC must ensure that there is no impact caused to the sedimentary dam.
N_BAS1_4	Located near the water fill point – see Saunders 2^nd affidavit at para 12(b) page 3. CCC must ensure that there is no impact caused to the water fill point
Non-approved Holes
BAS1_1	Located within diversion structures and located near embankment – see Willmott’s 1^st affidavit at para 25 page 8
N_BAS1_2	See Saunders 2^nd affidavit at para 14(a) page 3 See Willmott’s 2^nd affidavit at para 6(c) page 3

1 March (or as soon as possible thereafter upon completion of induction – 31 July 2013 - Northern District of ML70403

Court approved drilling activities to be drilled by CCC with Betchel/BMA/SSE personnel present in the Northern district of ML70403[29] as follows:

[29] BMA topsoil tasks have been delayed and have now been projected to commence in July 2013, it is assumed that BMA will commence topsoiling tasks in the same area’s reflected in the yearly workload projection marked ‘APW-4’ of Mr Willmott’s 1^st affidavit filed 4 December 2012. Therefore, CCC should have ample time and space within the Northern district to conduct and complete the approved drilling activities within the allocated time as set out above.

· H1,	· H2,	· H3,	· H4,
· H6	· H7,	· H8,	· H11,
· H12,	· H13,	· H14,	· H15,
· H16,	· H17,	· H18,	· H49,
· H50,	· H51,	· H52,	· H53,
· DEEP1,	· DEEP2* · (refer to Notes below)

Drilling activities are not to be conducted within the Northern district in relation to the following proposed holes:

· H5,

· H9,

· H10,

Court Notes:

Approved Holes
DEEP2	Located in or around the Horse Creek Watershed (however, this not reflected on the map) see Willmott’s 1^st affidavit at para 32 page 10. Saunders rebuttal in 2^nd affidavit at para 21 page 5. Details of the boundary lines and the environmental conditions imposed by a watershed are at best vague. DEEP2 hole may proceed on the proviso that all environmental factors regarding the Watershed are taken into account.
Non-approved Holes
H5, H9, H10,	See Willmott’s 1^st affidavit at para 26 page 8. Saunders rebuttal at 2^nd affidavit at para 15 pages 3-4. These holes are too close to or indeed inside the Quarry boundary.

Following completion of each drilling activity

Completion and/or remediation of all Court approved drill sites to be assessed and signed off by the appropriate environmental officer at the earliest opportunity.

Schedule 3

MRA1332-08

Cherwell Creek Coal Pty Ltd
-v-
BHP Queensland Coal Investments Pty Ltd & Ors

Decision delivered 24 January 2012

RE: Cherwell Creek Coal Pty Ltd request for drilling activity on ML70403

Part A - Preliminary requirements – Requirements and conditions to be satisfied prior to access to site and drilling

4 February - 1 April 2013 (or as soon as possible thereafter)

Within 14 days of this order, representatives of BMA and Bechtel and CCC will meet to discuss the timing of operations on the Caval Ridge Mine relevant to the drilling to be conducted under this Order.
CCC will give 7 days notice to BMA of its intention to access the site to conduct the drilling. BMA will ensure that the EPCM contractor for the CRM, Bechtel, cooperates with CCC, including attending meetings with CCC, providing all necessary details as to the timing of the progress for the CRM operations, following which CCC will provide Bechtel and BMA with a plan showing the timing and location of the drill sites to be drilled. Wherever possible the parties will exchange Project Gantt Charts for each drilling area.

2AAll such information provided to CCC, its agents, contractors or representatives pursuant to paragraphs 1 and 2, other than publicly available information, shall be treated as confidential by any persons given access to it and shall not be used for any purpose other than in Land Court proceedings MRA1332/08 or any appeals except with the prior leave of the Land Court.

The drilling must be performed by appropriately qualified and trained CCC or CCC contractor personnel. In this regard, CCC is required to provide BMA and Bechtel with:
(a)a copy of CCC’s project organisational structure;
(b)a list of CCC personnel and contractor personnel proposed to be used that includes names, current photographs, roles - including nominating the supervisor/s under the Coal Mining Safety and Health Act 1999 (Qld) (the CMS & H Act) - and curriculum vitae;
(c)certified copies of all competencies for all CCC personnel and contractor personnel proposed to be used. Relevant competencies include without limitation:
(i)for all workers - RIIRIS201A, Coal Board Medicals, and a BMA approved Defensive Driving competency;
(ii)for supervisors - RIIRIS301A, RIIOHS301A & RIICOM301A;
(iii)for geophysical logging engineers - Qld Dept Health Use Licence;
(iv)for drillers - RII31809; and
(v)any further competencies that are reasonably required by Bechtel or the SSE that are applicable to contractors on site that perform a task similar to that performed by CCC personnel and/or contractor personnel.
(d)for all CCC personnel and contractor personnel proposed to be used, a validly executed and completed copy of the following documents:
(i)Caval Ridge Project – Project Work Rules. Notwithstanding anything in Exhibit 1 to the contrary, CCC may utilise photographic and/or video equipment to record the drilling activities on site and those recordings and results may only be used for Land Court proceeding MRA1332/08 or any appeals except with the prior leave of the Land Court;
(ii)Core Employee/Staff Mobilisation Form (with all associated documents attached); and
(iii)a Functional Capacity Assessment;
(e)any further information that is reasonably required by Bechtel or the SSE and which would be required from a contractor on site that performs a task similar to that performed by CCC personnel and/or contractor personnel;
The above information is required in order to book inductions.

BMA and Bechtel are required to approve (such approval to be assessed in a timely manner and not to be unreasonably withheld) any contractors, contractor personnel or CCC personnel proposed to be used by CCC for the drilling programme prior to attending the site. It will be reasonable for BMA and/or Bechtel to withhold approval for contractors:
(a)who have previously worked for BMA and whose contracts have been terminated for safety reasons; or
(b)if BMA and/or Bechtel hold reasonable concerns about the contractors safety performance based on evidence of previous safety breaches.
All CCC personnel and contractor personnel that will be involved in conducting the drilling activities (in any way) are to complete:
(a)an induction by BMA (unless they have already completed such an induction and that induction remains current in accordance with current requirements);
(b)a site induction by Bechtel (unless they have already completed such an induction and that induction remains current in accordance with current requirements);
(c)Bechtel Contractor Management System checklist; and
(d)a pre-mobilisation site meeting (to review the objectives of the drilling programme, sequencing, health, safety and environment conditions, emergency response procedures and any other site access conditions)
any costs of which incurred by BMA and/or Bechtel will be paid by CCC to BMA within 7 days of demand, subject to paragraphs 3 and 4 of the orders.
CCC is required to arrange CMS & H Act supervisor interviews and appointments with the Bechtel SSE on site. The Bechtel SSE is required to make himself reasonably available to conduct those interviews in a timely manner.
CCC must provide BMA with a list (including photographs) of all major equipment that is proposed to be brought onto site including:
(a)drill rigs;
(b)support equipment such as, air compressors, water trucks, rod trucks, pumps, grouting units and cranes;
(c)light vehicles;
(d)geophysical logging units and radiation sources (Qld Dept Health Possession Licence and NM010 source assessment); and
(e)earth moving equipment.
All major equipment that is proposed to be brought onto site must:
(a)comply with BMA's drilling standard, which specifies equipment requirements for work on BMA sites;
(b)be inspected for compliance (at CCC’s cost) at one of the nearby approved BMA equipment inspection stations. Any remedial work (including the certification of that remedial work) that is required to be carried out to the equipment to ensure that it is compliant will be carried out by CCC at CCC's expense.
CCC must procure and maintain the following minimum insurances:

(a)workers’ compensation and employer’s indemnity insurance which complies with the relevant statutes, covering all claims and liabilities under any such statutes and, where claims (such as common law claims) are allowed outside of the statutory scheme, for employer’s liability for such claims, for the death of or injury to any person employed by CCC or CCC’s contractors in connection with this drilling; and
(b)public and product liability insurance written on an occurrence basis with a limit of indemnity of not less than $20 Million in respect of:
(i)loss of, damage to, or loss of use of, any real or personal property; and
(ii)the bodily injury of, disease or illness (including mental illness) to, or death of, any person,

arising out of the performance of the drilling programme by CCC or CCC’s contractors. This insurance must also extend to cover liability for:
(iii)the use of unregistered motor vehicles or unregistered mobile plant and equipment used in connection with the drilling programme;
(iv)registered vehicles used as a tool of trade in the performance of the drilling programme; and
(v)any equipment of CCC or CCC’s contractors in the care, custody or control of CCC or its contractors, except to the extent such equipment is otherwise insured against the risk of loss or damage under other insurances required to be effected pursuant to (c) below;

(c)property insurance covering CCC and CCC’s contractors' equipment against the risks of loss, damage or destruction by all insurable risks for not less than its market value.

CCC must:
(a)ensure (and procure that its contractors ensure) that any insurance required to be taken out under 9 above (other than statutory insurances) is effected with reputable insurers with a
financial security rating of A- or better by Standard & Poors or the equivalent rating with another recognised rating agency.
(b)satisfy BMA that each contract of insurance it is required to procure under 10 above is current by providing to BMA certificates of currency. BMA has the right to refuse CCC (and any of the CCC’s contractors) entry to site until sufficient evidence of insurance is provided.
Subject to paragraphs 3 and 4 of the orders, CCC is required to indemnify BMA for any claims, proceedings, expenses, costs, damage, losses, delay costs and other liability whatsoever, arising from:
(a)any breach of a condition of this Order;
(b)the illness, injury or death of CCC’s employees or contractors arising out of or in connection with the drilling programme;
(c)any loss or damage arising out of, or in connection with, any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused or contributed to by:
(i)CCC or CCC’s contractors undertaking the drilling programme; or
(ii)the entry onto, and the activities undertaken, on the site by CCC and its contractors.
(d)any penalty imposed for breach by CCC or its contractors of an applicable law in connection with the conducting of the drilling programme;
(e)any negligence or wilful act or omission by CCC and/or any of its employees or contractor in connection with the drilling programme;
(f)CCC or CCC’s contractors undertaking the drilling programme;
except to the extent that such liability, loss or damage is directly caused by BMA.
CCC and its contractors must provide to BMA and Bechtel for approval (such approval not to be unreasonably withheld and to be approved in a timely manner):
(a)their Safe Work Procedures;
(b)a project risk assessment for the drilling program;
(c)such data reasonably required by BMA in order for BMA to then arrange:
(i)Permits to Disturb for each drill pad and access track; and
(ii)Permits to Excavate for each drill hole.
CCC must not commence any drilling activities or construction of access tracks until the relevant Permits to Disturb and Permits to Excavate have been obtained.
Subject to paragraphs 3 and 4 of the orders, CCC will pay to BMA the cost of approving such procedures and generating the above permits incurred by BMA within 7 days of demand.

Part B - Conditions relating to conducting of drilling activities on site by CCC

CCC must:
(a)not unreasonably interfere with or impact BMA’s activities or the activities of any other person at the site. In this regard, both BMA and CCC will work together to:
(i)schedule CCC’s drilling activities at times during the court approved drilling times which avoid impact to BMA and the site; and
(ii)relocate any court approved drilling locations which cause unreasonable impact to BMA and the site and which impacts may be avoided by relocating such drilling holes by a reasonable distance;
(b)be aware of and comply with and ensure that CCC’s personnel and CCC’s contractor personnel are aware of and comply with:
(i)any applicable laws;
(ii)all site standards and procedures, to the extent that these documents are applicable to the drilling programme, including without limitation:
(A)BMA's drilling standard, which specifies equipment and personnel requirements for work on BMA sites;
(B)Bechtel’s SHMS and Hours of Work;
(C)any relevant Permits to Disturb and Permits to Excavate;
(D)the Traffic Management Plan and Emergency Response Plan;
(E)the drill pad and access track preparation and rehabilitation procedure;
(F)the weeds and seeds control procedure; and
(iii)all lawful directions and orders given by BMA, Bechtel or any person authorised by law or the site standards and procedures to give directions to CCC;
(c)ensure that CCC’s personnel entering the site perform in a safe manner and are properly qualified for, and skilled in, the performance of their tasks and are of such character as not to prejudice:
(i)safe working practices;
(ii)safety and care of property; and
(iii)BMA’s environmental compliance at the site;
(d)provide all such information and assistance as BMA and/or Bechtel reasonably require in connection with any statutory or internal health and safety investigation in connection with this order or the drilling works conducted pursuant to this Order; and
(e)leave the site secure, clean, orderly and fit for immediate use having regard to the condition of the site immediately prior to the drilling activities.
CCC must not cause, permit or tolerate an Unsafe condition or activity over which CCC has control on the site.
CCC must, at its cost, comply with a direction from BMA, Bechtel and/or the SSE to modify, or stop any activity that BMA and/or Bechtel considers is an Unsafe act.
If BMA or Bechtel observes or becomes aware of an Unsafe condition, BMA and/or Bechtel may:
(a)direct CCC to remove or, to the extent reasonably possible, mitigate the effect of the Unsafe condition, and CCC must comply with that direction and modify CCC’s method of work in order to avoid the Unsafe condition arising; and/or
(b)give written notice to CCC requiring removal of the relevant CCC personnel or CCC’s contractor’s personnel from the performance of the drilling program.
[Intentionally omitted]
BMA, at its discretion and at its own cost, may have a geologist accompany CCC and its contractors on site to monitor the results of the drilling programme.
For the purposes of the paragraphs 16 to 18, “Unsafe” means unacceptable actual or potential hazards and incidents relating to safety, health or the environment.

Part C - Post Drilling Requirements

Upon the completion, including geophysical logging and surveying, of each drill hole (and related access tracks), CCC shall immediately rehabilitate the drill hole area and access tracks:
(a)in relation to drill holes, by filling, capping and grading to a safe surface; and
(b)in relation to access tracks (where required by BMA) by remediating the access tracks to a safe condition;

21A Where BMA’s Project Gantt Chart shows areas which are to be undisturbed for a period of 12 months such drill sites are to be rehabilitated in accordance with normal environmental laws and regulations having regard to the condition the land was in before CCC’s activities.

[Intentionally deleted]
CCC is required to provide BMA with a duplicate copy of all original unamended drilling, geological and geophysical, coal sampling and quality testwork data gathered during the drilling programme for technical review and audit no later than 30 days from completion of each activity.

CITATION:	Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No.6) [2013] QLC 1
PARTIES:	Cherwell Creek Coal Pty Ltd (applicant)
v.
BHP Queensland Coal Investments Pty Ltd QCT Resources Pty Ltd BHP Coal Pty Ltd QCT Mining Pty Ltd Mitsubishi Development Pty Ltd QCT Investment Pty Ltd Umal Consolidated Pty Ltd (respondents)
FILE NO:	MRA1332-08
DIVISION:	Land Court of Queensland
PROCEEDING:	Application for drilling activity
DELIVERED ON:	24 and 31 January and 8 February 2013 [part Ex tempore]
DELIVERED AT:	Brisbane
HEARD AT:	Brisbane
MEMBER:	Mr PA Smith
ORDERS:	1. The Applicant and its agents are permitted to enter upon the area of land which comprised the former MDLA364, which lies within the boundaries of Mining Lease 70403, more particularly described as Lots 12 and 13 on SP151669 and Lot 16 on SP163605 (“the MDLA364 Land”) in order to inspect, take samples of the coal resource, and to undertake drilling in the locations identified in schedule 1 and in accordance with the attached schedule 2 and schedule 3 (“the Drilling Program”) the terms of which form part of this Order. 2. In the event of any dispute arising between the parties concerning the implementation of the Drilling Program on the MDLA364 Land: 2.1 within 1 business day of a party becoming aware of a dispute, the disputing party will write to the other party: (a) setting out the nature of the dispute; (b) nominating a panel of three mediators (such mediators to be legal practitioners or other independent qualified personnel who have experience in the mining industry relevant to the dispute of not less than five years experience), confirming their fees and availability to hear the dispute within the timetable set out in this Order; and (c) confirming the days which the disputing party is available to attend a mediation within the timeframes set out in this Order; ("the Dispute Notice") 2.2 within 1 business day of receiving the Dispute Notice, the other party will write to the disputing party: (a) setting out their response to the issue in dispute; (b) nominating one of the mediators to hear the dispute; and (c) confirming the date which they are available to attend a mediation within the timeframes set out in this Order. ("the Response Notice") 2.3 The Mediation will take place within 3 business days of the disputing party receiving the Response Notice at a place agreed between the parties or as otherwise nominated by the Mediator. 2.4 The parties will each pay half of the Mediators fees in conducting the mediation, but will otherwise bear their own costs of the mediation. 2.5 In the event that the Mediation does not resolve the dispute, the disputing party must write to the Court advising of the existence of the dispute and its failure to settle at the mediation and provide the Court with a copy of the Dispute Notice and the Response Notice. 2.6 Upon receiving notice of the existence of the dispute, the Court will relist the matter for hearing at the earliest opportunity. *3. The Applicant will pay to the Respondents any loss, damages, costs or expenses reasonably suffered (Loss) by them as a result of the Drilling Program in accordance with Order 4.* 4. In the event that the Respondents allege that they have incurred Loss caused by the Drilling Program in accordance with Order 3: 4.1 the Respondents will write to the Applicant setting out the allegation, including the cause of the Loss, the nature of the Loss, and details of the Loss which is alleged to have been incurred by them together with any source documents supporting the claim, 4.2 the Applicant will write to the Respondents advising: (a) whether it accepts the claim in full or in part or at all; and (b) the basis for its objection (if any) to the claim; 4.3 in the event that the Applicant and the Respondents are not able to agree as to the cause and/or amount of the alleged Loss: (a) the Respondents will file an application in the Court together with an affidavit setting out the nature of the claim and the amount of the alleged Loss, together with any supporting documentation; (b) the Court will list the matter for directions and/or hearing at the earliest opportunity. 5. The parties be at liberty to apply on 3 days notice. SEE ATTACHED SCHEDULES 1-3.
CATCHWORDS:	MINING – compensation for statutory loss of potential coal rights – application for drilling activity to assess scope and amount of coal – opposed by respondent – respondent plans to use surface area for infrastructure for new mine – drilling permitted as “survey” (s.380 of Mineral Resources Act 1989) – drilling allowed subject to conditions – applicant to pay reasonable costs of respondent – mediation order to resolve disputes PRACTICE AND PROCEDURE – application to conduct inspection and activity on property in dispute – Land Court Rules 2000 silent – Uniform Civil Procedure Rules 1999 (UCPR) apply by default - s.250 UCPR Mineral Resources Act 1989 Land Court Rules 2000 Uniform Civil Procedure Rules 1999 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2008] QLC 216 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 2) [2009] QLC 130 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 3) [2010] QLC 104 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 4) [2010] QLC 122 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors (No. 5) [2011] QLC 74 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2009] QLAC 0005 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd (No 2) [2009] QLAC 0008 Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2011] QLAC 0001 BHP Queensland Coal Investments Pty Ltd & Ors v Cherwell Creek Coal Pty Ltd [2011] QLAC 0002
APPEARANCES:	Ms Chapple of Counsel for the applicant Mr Doyle SC and Mr Stumer of Counsel for the respondents
SOLICITORS:	Mr Boys of Holding Redlich Lawyers for the applicant
Mr Hurford of Allens for the respondents