De Lacey v Kagara Pty Ltd - [2009] QLC 101

LAND COURT OF QUEENSLAND

CITATION:De Lacey & Anor v Kagara Pty Ltd [2009] QLC 0101
PARTIES:Ralph De Lacey and Stuart V Foster
(applicants)
- and -
Kagara Pty Ltd
(respondent)
- and -
Environmental Protection Agency
(statutory party)

FILE NOS:AML00196/2007
ENO00230/2007
AML00197/2007

ENO00231/2007
AML00199/2007
ENO00233/2007

PARTIES:Ralph De Lacey
(applicant)
- and -
Kagara Pty Ltd
(respondent)
- and -
Environmental Protection Agency
(statutory party)

FILE NOS:AML00198/2007
ENO00232/2007

AML00200/2007
ENO00234/2007

AML00201/2007
ENO00235/2007

AML00202/2007
ENO00236/2007

DIVISION:Land Court of Queensland – general division
PROCEEDING:           Applications for mining leases and objections thereto
DELIVERED ON:         13 July 2009
DELIVERED AT:         Brisbane
HEARD AT:Not applicable – Heard on the Papers
MEMBER:Mr PA Smith
ORDERS:RECOMMENDATION – MLA 20496

Provided that Special Conditions for the Draft Environmental Authority as follows are made:
1.“Appropriate baseline studies of fauna and flora must be undertaken prior to the commencement of any mining activity in order to identify threatened species, sensitive ecosystems and ecosystem dependent species including (but not limited to) in the National Parks.
No mining activity can occur until the administering authority is satisfied that such baseline studies for the potential impacts of mining have been undertaken, and until the administering authority is also satisfied that appropriate strategies for air, noise, vibration, land, waste, surface water and groundwater have been put in place to ensure that all mining activities will not significantly adversely affect any threatened species, sensitive ecosystems and ecosystem-dependent species identified by the baseline studies.
Such strategies shall be implemented at all times for the conduct of all mining activities.” and
2. “Standard environmental condition no. 14 of the Code of Environmental Compliance for Mining Lease Projects January 2001 (approved by the Minister by gazette notice on 22/12/00) does not apply to any mining activity in so far as a mining activity is not carried out in any category A environmentally sensitive area or in any category B environmentally sensitive area.”

together with the following Special Condition for the Mining Lease:
“The mining leaseholder will not prohibit the movement of stock through Lot 45 on CP815407 Reserve (R14).”

and subject to Right to Negotiate processes under the Native Title Act 1993 (Cwth),
I recommend to The Honourable the Minister for Natural Resources, Mines and Energy and Minister for Trade that MLA 20496 be granted to the Applicants, for the following minerals and purposes: silver ore, gold, copper ore, iron ore, garnet, living quarters/camp, lead ore, tin ore, treatment plant / mill site, tungsten / wolfram / scheelite, workshop / machinery / storage, water supply and zinc ore, for the term sought by the Applicants
RECOMMENDATION – MLA 20497

Provided that Special Conditions for the Draft Environmental Authority as follows are made:
1.“Appropriate baseline studies of fauna and flora must be undertaken prior to the commencement of any mining activity in order to identify threatened species, sensitive ecosystems and ecosystem dependent species including (but not limited to) in the National Parks.
No mining activity can occur until the administering authority is satisfied that such baseline…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Lacey v Kagara Pty Ltd

Details

AGLC: De Lacey v Kagara Pty Ltd [2009] QLC 101
Case: [2009] QLC 101
Decision Date: 13 July 2009

CaseChat Overview and Summary

This case involved applications for mining leases by Ralph De Lacey and Stuart V Foster, opposed by Kagara Pty Ltd. The Land Court of Queensland was tasked with deciding several issues related to the grant of mining leases, including the precautionary approach to threatened species, the proximity of leases to national parks, restrictions on stock movement, and access issues. The Environmental Protection Agency was also a statutory party to the proceedings. The court considered submissions from the applicants and the statutory party and examined the potential environmental impacts of the proposed mining activities. The court found that baseline studies and appropriate strategies to mitigate adverse environmental impacts were necessary before any mining activities could commence. It also determined that certain standard environmental conditions did not apply to the leases due to their location outside environmentally sensitive areas. Additionally, the court addressed restrictions on stock movement and access issues, recommending specific conditions to be included in the leases. Ultimately, the court recommended the grant of the mining leases, subject to the imposition of special conditions and compliance with native title negotiation processes.

Orders