DeLacey & Anor v Kagara Pty Ltd - [2009] QLC 77

LAND COURT OF QUEENSLAND

CITATION:De Lacey & Anor v Kagara Pty Ltd [2009] QLC 77
PARTIES:Ralph De Lacey and Stuart V Foster
(Applicants)
- and -
Kagara Pty Ltd
(respondent)
- and -
Environmental Protection Agency
(statutory party)

FILE NOS:AML00195/2007
ENO00229/2007
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:         2 June 2009
DELIVERED AT:                Brisbane
HEARD AT:Brisbane
MEMBER:Mr PA Smith
ORDERS:
WITH RESPECT TO EACH MLA

1I allow the Applicant until 4pm 19 June 2009 to file and serve draft special conditions to the Draft Environmental Authority consistent with paragraphs 178 and 179 hereof.
2Apart from MLA 20488, I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, their suggested special conditions); and
3Apart from MLA 20488, I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply.
4Apart from MLA 20488, should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009.

RECOMMENDATION – MLA 20488
5Provided that special conditions consistent with paragraphs 178 and 179 are made, 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 ML 20488 be granted to the Applicants, for the purposes and term sought by the Applicants.

RECOMMENDATION – MLA 20496

6Provided that special conditions consistent with paragraphs 178 and 179 are made, together with special conditions that the Applicants do not prohibit the movement of stock through Lot 45 CP 851407 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 ML 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

ORDERS – MLA 20496

7I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted;
8I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and
9I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply.
10Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009.

ORDERS – MLA 20497

11I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted;
12I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and
13I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply.
14Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009.

RECOMMENDATION – MLA 20500

15Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to the Applicant obtaining the consent of the Department of Transport prior to the matter being considered by the Governor in Council and the Governor in Council exercising the discretion pursuant to s 238(1)(a) of the MRA or alternatively, if the Applicant is unable to obtain the consent of the Department of Transport, then I recommend that, prior to the MLA proceeding to grant, that the Applicant be required to lodge a variation of access not involving a railway crossing, 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 20500 be granted to the Applicant, 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 Applicant

ORDERS – MLA 20502

16I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted;
17I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and
18I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply.
19Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009.

RECOMMENDATION – MLA 20503

20Provided that special conditions consistent with paragraphs 178 and 179 are made, 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 ML 20503 be granted to the Applicant, 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 Applicant

RECOMMENDATION – MLA 20504

21Provided that special conditions consistent with paragraphs 178 and 179 are made, 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 ML 20504 be granted to the Applicant, 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 Applicant

ORDERS – MLA 20510

22I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted;
23I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and
24Allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply.
25Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009.

CATCHWORDS: Mining – mining lease - objections

Mineral Resources Act 1989
Environmental Protection Act 1994
Applications for mining leases – objections - Mineral Resources Act (1989) (QLD) ss. 238(1)(a), 260, 265, 268 Whether grounds in objection process are properly particularised - ss. 269, 269 (3), 269 (4) Criterion for Land Court’s recommendation - ss. 6, 6A, 241, 245, 252 Compliance requirements - ss. 18, 32, 35 Whether proper notice of entry was given and whether penalty applies – s.31 Whether notification requirement was complied with – s.135 Moratorium period – s.391A Proximity to environmentally sensitive areas –
Environmental Protection Act (1994) ss. 164, 220, 222, 223, 3, 4, 6, 8, 9, 14, 15 – Objections under the Act, matters to be considered - 37, 151, 238, 292, 154, 167 – threatened species – level 2 code compliance – s559, 560 suitability report – misleading conduct – s223, sched 3 The Precautionary Principle - Native Title Act 1993 (Cwth) negotiation processes
Sinclair v Mining Warden at Maryborough and Anor (1975) 132 CLR 473 - Beattie v McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993 - Jones v Dunkell & Anor (1959) 101 CLR 298 - Armstrong & Anor v Brown and Anor [2004] QCA 80 - Gonzo Holdings No 50 Pty Ltd v McKie [1996] 2QdR 240 - ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2001] QCA 119 - ACI Operations Pty Ltd v Friends of Stradbroke Island Association Inc (2000) QLRT 7 - Kokstad Mining Pty Ltd v Lee (2006) 122 - Lee v Kokstad Mining Pty Ltd (2007) QCA 248 .

APPEARANCES: Mr R Lilley SC and Mr P Franco, instructed by Preston Law, for the Applicants
Mr P Ambrose SC and Mr M Brady, instructed by Blake Dawson solicitors, for the respondent
Mr I Pepper, Legal Officer, for the Environmental Protection Agency

Background

The Court has before it eight applications for mining leases, all located within the Chillago area of the Mareeba Mining District. The applications are either in the joint names of Ralph De Lacey and Stuart Foster or in the name of Ralph De Lacey only. Hereafter, I will use the generic term of "Applicants" to refer to the Applicants for each mining lease application (“MLA”). In addition to the Applicants, a third person, John Sainsbury, holds certain interests in at least 6 of the MLAs. Mr Sainsbury's interests were not disclosed during the application process.
Kagara Pty Ltd[1] (the "Objector") lodged objections to each MLA. The objections are extensive, and are made under the Mineral Resources Act 1989, (the MRA) and the Environmental Protection Act 1994 (the "EP Act").
[1] I note that Kagarra has changed its name to Mungana Pty Ltd.
By letter dated 11 February 2009 directed to the Mining Registrar, Mareeba, the Objector withdrew its objection with respect to the grant of MLA 20488. The Objector has not withdrawn its objections with respect to any of the other MLAs.
The evidence shows that the Objector is a landholder of land over which a number of the MLAs have been lodged. Additionally, the Objector is also a miner which operates mining operations of a relatively large scale. The Applicants are small scale miners who operate, at least in part, in the same geographical region as the Objector.
In my view, having considered all of the evidence, the objection process in a number of respects boils down to a commercial contest between the Applicants and the Objector. Should any of the MLAs not be granted to the Applicants, exploration rights to those areas will revert to the Objector which holds EMP 15458 over the relevant areas.

The hearing

The Applicants were represented throughout the hearing by Mr R Lilley SC and Mr P Franco, instructed by Preston Law. The Applicants relied on their application material, material supplied to the Court by the Mining Registrar, Mareeba, affidavit evidence, expert evidence and oral evidence. I will refer specifically to aspects of this evidence throughout these reasons.
Mr P Ambrose SC and Mr M Brady, instructed by Blake Dawson solicitors, represented the Objector. The Objector relied on each of the objections and documents in support lodged with their objections, affidavit evidence, expert evidence and oral evidence.
Mr I Pepper, Legal Officer, appeared on behalf of the Statutory Party to the EP Act objections, the Environmental Protection Agency.
In considering these matters, I have relied upon all the evidence before me, including all exhibits tendered. I have also relied on the material provided to the Court by the Mining Registrar, including the Mining Registrar’s Report, in relation to each MLA. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account.
In considering this matter, I have also applied, where relevant, Sinclair v Mining Warden at Maryborough and Anor (1975) 132 CLR 473 and Beattie v McGrady (Unreported) Supreme Court of Queensland, Cullinane J., 20 July 1993. I have also considered all relevant provisions of the MRA and the EP Act.

Legislative procedures for hearing and determining objections under the MRA and the EP Act

The processes for making an objection to the grant of a mining lease under the MRA are straight forward. Pursuant to s. 260 of the MRA, objections are to be in writing, lodged with the Mining Registrar in the approved form, and shall state the grounds of objection and facts and circumstances relied on by the Objector in support of those grounds. A date is subsequently fixed by the Mining Registrar for the hearing of the objection by the Court (s. 265) and the hearing proceeds pursuant to s. 268 of the MRA. The requirements for the Court’s recommendation to the Honourable the Minister are set out in s. 269. Relevantly, s. 269(3) provides that “a recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Court considers appropriate, including a condition that mining not be carried on above a specified depth below specified surface area of the land”.
The MRA then sets out, by s. 269(4), certain criteria that the Court shall take into account and consider when making a recommendation. It is this Court’s usual practice when making a recommendation to the Honourable the Minister to include in the recommendation a detailed breakdown of each criterion under s. 269(4), taking account of any objection under each relevant criteria. For the purposes of this matter, due to the hearing of 8 separate MLAs and the extensive number of objections, I have departed to some degree from the usual course. Major issues of credit of certain witnesses arise. Accordingly, I have set out an analysis, principally from a credit perspective, of the evidence of each witness. I then give a detailed analysis of various issues that arise out of the objection process which are common to all or a number of the MLAs, followed by a truncated assessment of s. 269(4) of the MRA for each application, not repeating issues already dealt with. However, matters unique to each MLA are dealt with in the s.269(4) analysis of each MLA.
For the purposes of s. 269(4) of the MR Act, I confirm that I have taken into account and considered in detail each of the s 269(4) criterion for the purposes of making my recommendation. It must also be noted that the Environmental Protection Agency is not a party with respect to the hearing of MRA objections.
As regards the objections under the EP Act, each objections decision hearing has been conducted in the Court pursuant to s. 220 of the EP Act. Detailed evidence has been heard on the part of the Applicants, the Objector and the agency as a statutory party. The Court’s obligation is now to make objections decisions pursuant to s. 222 of the EP Act, which must in each case be a recommendation to the MRA Minister that the application be granted on the basis of the draft Environmental Authority; or that it be granted on changed conditions; or that the application be refused. Matters to be considered for the objections decision include the matters in s.223.
It is appropriate to provide an overview of some relevant provisions of the EP Act. Section 3 states that the object of the Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).
Section 4 provides for an integrated management program, which involves implementing environmental strategies and integrating them into efficient resource management. Accountability is an important element.
Section 8 defines “environment”. Section 9 defines “environmental value”. Section 14 defines “environmental harm” and how it may be caused by an activity. Section 15 defines “environmental nuisance” as unreasonable interference or likely interference with an environmental value caused by:
(a) noise, dust, odour, light; or
(b)an unhealthy, offensive or unsightly condition because of contamination; or
(c) another way proscribed by regulation.

The Objectors' objections

Mr Hetherington on behalf of the Objector lodged formal objections, following the approved form, to each of the MLAs. The objections were all dated 10 October 2007 and were all received by the Mining Registrar on 11 October 2007. Although the objections cover all eight MLAs, the Objector grouped various MLAs together and made one set of objections for each grouped set of MLAs. Accordingly, the Objector lodged a common objection with respect to MLAs 20500, 20503, 20504 and 20510, all in the one objection. Likewise, one objection by the Objectors covers MLAs 20488 and 20496, and a third objection lodged by the Objector relates to MLAs 20497 and 20502. Each objection is both an MRA objection and an EP Act objection.
Following separate requests of the Objector made by the Applicants and the Statutory Party for further and better particulars, the Objectors on 11 April 2008 filed the Objectors' reply to the Applicant's request for further and better particulars, and on the same date also filed the Objectors' reply to the Statutory Party's request for further and better particulars. Further, on 2 September 2008, by letter from the solicitors for the Objector addressed to the solicitors for the Applicants and the Statutory Party, the Objectors provided further particulars of its objections.
Without doubt, one of the most fundamental documents for the Court to have regard to when hearing objections to the grant of a MLA is the actual objection itself. For ease of reference in this recommendation, what I have done is compiled each of the objections, both responses to requests for further particulars, together with the further particulars of 2 September 2008, into one document. In order to easily track the origins of the various components of the objections in the combined document which follows, I have used different type fonts to represent the different origins of the contents of the objections as follows:
‘Standard type’ represents the words taken from the original objections filed with the Mining Registrar on 11 October 2007.
‘Bold italics’ represents the Objector's reply to the applicant's request for further and better particulars filed 10 April 2008.
‘BOLD CAPITALS’ represents the Objector's reply to the statutory party's request for further and better particulars, and
‘CAPITAL BOLD ITALCS’ represents the Objector's further particularisation of 2 September 2008.

OBJECTIONS
MLA 20497 and MLA 20502
De Lacey (66.6666%) and Foster (33.3334%)
MLA 20488 and MLA 20496
De Lacey (50%) and Foster (50%)
MLA 20500, MLA 20503, MLA 20504 and MLA 20500
De Lacey
“Objection in relation to the grant of the mining tenements identified above, including but not limited to the Applicant’s failure to comply, failure to fully comply or inability to comply with the following provisions of the Mineral Resources Act 1989 (MRA):
Grounds for objection
The applicant/s has failed to comply with various Sections and the requirements of the MRA, including, but not limited to Sections 6, 6A, 241, 245
· No rights have ever been granted to the applicant in accordance with the MRA which would enable access to the area of the MLA to permit the applicant to prospect, explore or conduct any geological, metallurgical, environmental assessment or evaluation of the area of the MLA.
The respondent states that the rights that are lacking are:
(a)the rights already identified in the facts and circumstances states (sic) in the respondent’s objections;
(b)the rights to access the area of the MLAs for the purpose of marking out boundaries, carrying out prospecting and exploration or to conduct any geological metallurgical and environmental assessment or evaluations; and
(c)the rights to carry out prospecting and exploration or to conduct any geological, metallurgical and environmental assessment or evaluation over the area of the MLAs.

·      The MLA has not been marked out or applied for in accordance with the MRA.
The respondent states that the respects in which the MLAs have not been applied for in accordance with the Mineral Resources Act 1989 (MRA) are those already identified in the facts and circumstances stated in the respondent’s objections. These include, by way of illustration, the Applicants’ failure to properly identify land over which a reserve exists and the divergence in descriptions of proposed mining activities between mining lease applications, environmental authority applications, the certificates of application and public notice and the public advertisements.
·        The area of the land is not mineralised and the purposes for which the MLA is being sought are inappropriate.
·        The land, surface area, size and shape of the MLA is inappropriate.
·        The term of the MLA sought is inappropriate.
·        The applicant does not have the financial and technical resources to carry on the proposed operations, especially in circumstances where sufficient information is available to determine the substantial capital needs.
The respondent says as follows:
(a)the word “sufficient” should instead read “insufficient”;
(b)the information which is lacking is an outline of the mining program proposed and the Applicants’ method of operations, an indication of when operations are expected to start, and proposals for infrastructure requirements and additional activities to be carried on to work out the infrastructure requirements;

THE APPLICANTS HAVE FAILED TO COMPLY WITH S.245 MRA IN THAT:
(A)THEY FAILED TO SPECIFY THE NAME OF EACH APPLICANT FOR THE MINING LEASE AS JOHN SAINSBURY HAD A ONE THIRD INTEREST IN THE MINING LEASE APPLICATIONS BUT THIS WAS NOT STATED ON ANY OF THE APPLICATIONS BY THE APPLICANTS IN BREACH OF THE REQUIREMENTS OF S.245(B) MRA;
(B)AS PART OF THEIR APPLICATIONS THEY FAILED TO MAKE A STATEMENT THAT:
(I) OUTLINED THE MINING PROGRAM PROPOSED;
(II)PROVIDED AN INDICATION WHEN OPERATIONS WERE EXPECTED TO START
(III)SET OUT THE PROPOSALS FOR INFRASTRUCTURE REQUIREMENTS NECESSARY TO ENABLE THE MINING PROGRAM TO PROCEED, OR ADDITIONAL ACTIVITIES TO BE CARRIED ON TO WORK OUT THE INFRASTRUCTURE REQUIREMENTS;
(IV)SPECIFIED THE ESTIMATED HUMAN, TECHNICAL AND FINANCIAL RESOURCES PROPOSED TO BE COMMITTED TO AUTHORISED ACTIVITIES FOR THE MINING LEASE DURING EACH YEAR OF THE LEASE, IF GRANTED,

IN BREACH OF THE REQUIREMENTS OF S.245(O)(III) MRA;
(C)AS PART OF THEIR APPLICATIONS THEY FAILED TO MAKE A STATEMENT THAT DETAILED THE APPLICANTS’ FINANCIAL AND TECHNICAL RESOURCES IN BREACH OF THE REQUIREMENTS OF S.245(O)(IV) MRA.

THE APPLICANTS HAVE FAILED TO COMPLY WITH S.32(1) MRA IN THAT THEY FAILED TO GIVE THE OWNER OF THE LAND COVERED BY THE PARCEL PROSPECTING PERMITS HELD BY THEM NOTICE OF ENTRY BEFORE INITIAL ENTRY WAS MADE UNDER THE PERMITS AS:
(A)ALTHOUGH A LETTER DATED 17 JANUARY 2006 WAS SENT BY MR DE LACEY TO THE RESPONDENT IN RESPECT OF PROSPECTING PERMIT NO. 21021, THE LETTER:

(I) DID NOT GIVE NOTICE OF ENTRY, IN THAT IT DID NOT STATE WHE MR DE LACEY INTENDED TO ENTER UPON THE RESPONDENT’S LAND;
(II) STATED THAT MR DE LACEY INTENDED TO PEG ONLY “A SMALL MINING LEASE” WHEREAS, IN FACT, MR DE LACEY PURPORTED TO PEG NO FEWER THAN 5 MINING LEASES IN RELIANCE ON PARCEL PROSPECTING PERMIT 21021 WITHOUT GIVING ANY NOTICE OF HIS INTENTION TO ENTER THE RESPONDENT’S LAND TO PEG THOSE MINING LEASES;

(B)THE APPLICANTS GAVE NO NOTICE OF ANY NATURE TO THE RESPONDENT IN RESPECT OF ENTRY ONTO THE RESPONDENT’S LAND IN RESPECT OF PROSPECTING PERMIT NO 21023.

FURTHER, IN RESPECT OF THE OBJECTION TO MLA 20496, THE APPLICANTS HAVE FAILED TO COMPLY WITH S.238(1) MRA IN THAT THEY FAILED TO:
(A)OBTAIN THE WRITTEN CONSENT OF THE OWNER OF THE RESERVE OVER THE LAND, BEING THE MINISTER FOR NATURAL RESOURCES AND WATER, TO THE GRANTING OF THE LEASE; AND
(B)LODGE THE WRITTEN CONSENT OF THE MINISTER WITH THE MINING REGISTRAR BEFORE THE LAST OBJECTION DAY ENDED.

FURTHER, IN RESPECT OF THE OBJECTION TO MLA 20496, THE APPLICANTS HAVE FAILED TO COMPLY WITH S.252B MRA IN THAT THEY FAILED TO GIVE A COPY OF THE CERTIFICATE AND THE APPLICATION FOR THE MINING LEASE TO EACH OWNER OF THE RELEVANT LAND, IN THAT NO NOTICE WAS GIVEN TO THE MINISTER FOR NATURAL RESOURCES AND WATER, BEING AN OWNER OF THE RELEVANT LAND.
Facts and circumstances relied on in support of the grounds
The applicant/s for the MLA have never been granted any entitlement under the MRA to access, assess, prospect or explore the area of land subject to the MLA for the purposes of determining whether the land is mineralised and what mineral resources may exist in the MLA.
Even if the land could be found to be mineralised, the Applicants have never been granted any entitlement under the MRA that could enable the applicant/s to conduct any investigations to determine the extent of mineralisation, or to determine an acceptable level of development and utilisation of the mineral resources which could exist in the MLA.
Until the precise extent and metallurgy of any mineable resource which may exist within this area is determined with certainty, it is impossible to determine that the land and surface area of the MLA is an appropriate size and shape, the term sought is appropriate, the applicant has sufficient financial resources and technical capabilities to mine each MLA and whether there is any good reason to refuse the grant of the MLA.
There is no evidence of the existence of minerals and/or resource definition as a consequence of exploration to support mine development. The grant of a MLA is for mine development, not for exploration purposes and until mineable resources are sufficiently defined in accordance with any industry standard, including Valmin or JORC guidelines, no MLA should be considered for grant.
The MLA has not been marked out or applied for in accordance with the provisions of the MRA.
Insufficient information provided in the MLA to demonstrate resource to be mined as a commercially viable mining operation for any of the minerals and proposed mining program is insufficient to determine the effect on the environment, or to show environmentally responsible mining. Information provided is inadequate and inconsistent with provisions of MRA. Insufficient or no evidence has been provided to company with Section 245 (1) sub sections I, L and O.
Grounds for objection
·        The grant of the MLAs will disadvantage rights of the holder of EPM 15458 and any subsequent holder of any exploration or prospecting rights.
The respondent states that the grant of the MLAs will disadvantage the rights of the holder of EPM 15458 and any subsequent holder of any prospecting or exploration right by preventing them from conducting exploration and obtaining mining tenements on the relevant land.
·        The grant of the MLAs is not sound land use management.
The respondent states, in addition to the facts and circumstances stated in its objections, that the grant of the MLAs would not be sound land use management because they would be made in circumstances where the Applicants have failed to comply with the requirements of the MRA as stated in the respondent’s objections.
·        Without proper geological and environmental assessment, there is a real risk of adverse environmental impact.
The respondent states that there has been no proper geological and environmental assessment made and that there is a real risk of adverse environmental impact if the MLAs are granted, for the reasons that have been provided in its objections.
·        The public right and interest will be prejudiced.
The respondent states that the public right and interest will be prejudiced by the grant of the MLAs in circumstances where the Applicants have failed to comply with the requirements of the MRA as stated in the respondent’s objections.
·        Mining without proper resource definition is an inappropriate land use.
Facts and circumstances relied on in support of the grounds
The grant of the MLA over land where insufficient exploration and prospecting has been undertaken will sterilise land along strike from the mine development. To this end, the grant of the MLA will disadvantage the holder of EPM 15458. Kagara Pty Ltd, being the holder of EPM 15458, is currently conducting a major mine development within the bounds of EPM 15458 and the company’s operations here and elsewhere in the state are a major contributor to the benefit of the people of Queensland.
No access to the land subject to the MLA has been granted to conduct activities authorised by the MRA and unless the precise extent and metallurgy of any mineable resource of mineralisation which may exist within this area is determined with certainty, any development for mining or infrastructure must have an adverse effect on the environment. Further it is impossible to determine the extent of the adverse effect on the environment.
The grant of any MLA will prejudice the public right and interest insofar that it would be inconsistent with Government policy, the value of any production cannot be determined (including time value), there is no evidence of any contribution to employment, there is no evidence of resources to determine the direct and indirect return to the state (including royalty and rent), there is no evidence of the social impact (in relation to Native Title and otherwise) and there is no evidence of any overall economic benefit to the state or part of the state, in the short or long term.
The land within EPM 15458 is considered prospective and the best use of this land (for other than grazing purposes) is to be subjected to a detailed comprehensive exploration program conducted by a party which has an in depth knowledge of the geology in the area.
Objection in relation to the environmental authority application, including but not limited to the Applicants failure or inability to comply with the following provisions of the Environmental Protection Act 1994.
Grounds for objection
Sections 3, 5, 148, 150, 154, 155, 156, 161, 162, 179, 186 and 189
·        The application documentation is inadequate.
The respondent states that the respects in which the application documentation is inadequate are as follows:
(a)those already identified in the facts and circumstances stated in the respondent’s objections;
(b)the subject applications were each expressed as an application for a code compliant authority when they should each have been expressed as an application for a non-code compliant authority;
(c)in the alternative to (b), the subject applications were each expressed as an application for an environmental authority for a level 2 mining project when they should each have been expressed as an application for an environmental authority for a level 1 mining project; and
(d)in the alternative to (b) and (c), the subject applications were each expressed as an application for a code compliant authority for a level 2 mining project when the Applicants should have made a single application for 1 non-code compliant authority for a level 1 mining project.

THE RESPONDENT STATES THAT THE APPLICATION DOCUMENTATION IN RELATION TO EACH OF THE SUBJECT APPLICATIONS FOR ENVIRONMENTAL AUTHORITIES (MINING ACTIVITIES) IS INADEQUATE IN THE FOLLOWING RESPECTS:
(A)THE MATTERS ALREADY IDENTIFIED IN THE FACTS AND CIRCUMSTANCES STATED IN THE RESPONDENT’S OBJECTIONS;
(B)THE SUBJECT APPLICATIONS WERE EACH EXPRESSED AS AN APPLICATION FOR A CODE COMPLIANT AUTHORITY WHEN THEY SHOULD EACH HAVE BEEN EXPRESSED AS AN APPLICATION FOR A NON-CODE COMPLIANT AUTHORITY;
(C)IN THE ALTERNATIVE TO (B), THE SUBJECT APPLICATIONS WERE EACH EXPRESSED AS AN APPLICATION FOR AN ENVIRONMENTAL AUTHORITY FOR A LEVEL 2 MINING PROJECT WHEN THEY SHOULD EACH HAVE BEEN EXPRESSED AS AN APPLICATION FOR AN ENVIRONMENTAL AUTHORITY FOR A LEVEL 1 MINING PROJECT; AND
(D)IN THE ALTERNATIVE TO (B) AND (C), THE SUBJECT APPLICATIONS WERE EACH EXPRESSED AS AN APPLICATION FOR A CODE COMPLIANT AUTHORITY FOR A LEVEL 2 MINING PROJECT WHEN THE APPLICANTS SHOULD HAVE MADE A SINGLE APPLICATION FOR 1 NON-CODE COMPLIANT AUTHORITY FOR A LEVEL 1 MINING PROJECT.

· The application and the proposed development fails to take account of relevant environmental protection policies.
The respondent withdraws its objection to each of the subject applications in relation to the applications and proposed development failing to take account of relevant environmental protection policies.
THE RESPONDENT WITHDRAWS ITS OBJECTION TO EACH OF THE SUBJECT APPLICATIONS IN RELATION TO THE APPLICATIONS AND PROPOSED DEVELOPMENT FAILING TO TAKE ACCOUNT OF RELEVANT ENVIRONMENTAL PROTECTION POLICIES.
· The standard EA is inadequate for the proposed development on each MLA.
The respondent states that the respects in which the standard EA is inadequate for the proposed development are:
(a)those already identified in the facts and circumstances stated in the respondent’s objections; and
(b)that the Applicants, in carrying out the mining activities, will not comply with the relevant standard environmental conditions for a code compliant authority.

· Standard conditions are inadequate for the proposed development on each MLA and the applicant has not had any right of access to the area of the MLA to permit the applicant to prospect, explore or conduct any geological, metallurgical, environmental assessment or evaluation of the area of the MLA for the purpose of determining the significant impact of the proposed operations on the environment.
The respondent states that:
(a)the respects in which it is said that the standard conditions are inadequate are those already identified in the facts and circumstances stated in the respondent’s objections and, further, that the Applicants, in carrying out the mining activities, will not comply with the relevant standard environmental conditions for a code compliant authority;
(b)the facts relied on to contend that the Applicants have not had any right of access to the area of the MLA are those set out at paragraphs 1 (a) and (b) above.

THE RESPONDENT STATES THAT THE MATERIAL FACTS IT RELIES ON IN SUPPORT OF ITS GROUND OF OBJECTION IN EACH OF THE SUBJECT APPLICATIONS THAT THE STANDARD CONDITIONS ARE INADEQUATE FOR THE PROPOSED DEVELOPMENT ON EACH MLA, ARE AS FOLLOWS:
(A)THOSE ALREADY IDENTIFIED IN THE RESPONDENT’S OBJECTIONS; AND
(B)THAT THE APPLICANTS, IN CARRYING OUT THE MINING ACTIVITIES, WILL NOT COMPLY WITH THE RELEVANT STANDARD ENVIRONMENTAL CONDITIONS FOR A CODE COMPLIANT AUTHORITY.

· The MLA does not provide for the assessment, development and utilisation of mineral resources to the maximum extent practicable consistent with sound economic and land use management.
The respondent states that the grant of the MLAs in circumstances where the Applicants have failed to comply with the requirements of the MRA, as stated in the respondent’s objections, would not result in the best assessment, development and utilisation of mineral resources.

Facts and circumstances relied on in support of the grounds
Failure of the Applicant to adequately demonstrate that the proposed mining operations are ecologically sustainable developments.
Incomplete, inaccurate, imprecise and insufficient information to determine extent or otherwise of environmental harm caused by mining activity. Unless the Application can determine with certainty the resources to be mined and proposed methods of mining (and effects of extraction) it is impossible to determine the effect of such activities on the environment.
Applicant has failed to provide or take into account the effect of the activities in relation to introduction, locality, description of the activity, justification of the activity, evaluation of alternatives, planning context, licences and approvals required, zoning, stakeholder consultation, existing environment, landforms and geology, climate, environmental impacts and management, air, water, soils, noise and vibration, flora and fauna, chemical and hazardous substance management, contaminated land, waste minimisation and management, natural resource use, impact on the community, visual assessment, heritage, aboriginal heritage, other cultural heritage, land use, cumulative environmental impacts, summary of mitigation measures, rehabilitation works and summary of impacts and conclusions.
Objection in relation to the draft environmental authority for the application, including but not limited to the Applicants failure or inability to comply with the following provisions of the Environmental Protection Act 1994:
Grounds for objection
Standard EA is inappropriate.
THE RESPONDENT STATES THAT THE MATERIAL FACTS IT RELIES ON IN SUPPORT OF ITS GROUND OF OBJECTION IN EACH OF THE SUBJECT APPLICATIONS THAT A STANDARD EA IS INAPPROPRIATE, ARE AS FOLLOWS:
(A)THOSE ALREADY IDENTIFIED IN THE RESPONDENT’S OBJECTIONS; AND
(B)THAT THE APPLICANTS, IN CARRYING OUT THE MINING ACTIVITIES, WILL NOT COMPLY WITH THE RELEVANT STANDARD ENVIRONMENTAL CONDITIONS FOR A CODE COMPLIANT AUTHORITY.

Facts and circumstances relied on in support of the grounds
On the basis of the information provided in the Applications it is impossible to determine the most appropriate form of Environmental Authority and appropriate conditions.
The applicant has applied for several MLAs and EA’s in close proximity. All of which include similar minerals and mining activities. As a rule, the EPA would require the holder to apply for a single EA covering several MLAs in this situation. It is possible that the impacts of the individual MLAs may be able to comply with the threshold triggers in the standard environmental code, however, the total disturbances of the combined MLAs will require a Level 1 EA. The applicant is circumventing the intention of the EPA in this case as Level 2 code compliant EA’s are not appropriate. The information provided in the EA application forms was insufficient for the EPA to issue standard EA’s for the MLAs.
Objection in relation to conditions included in the draft environmental authority for the application, including but not limited to the Applicant’s failure or inability to comply with the following provisions of the Environmental Protection Act 1994:

Grounds for objection
Section 154
Facts and circumstances relied on in support of the grounds
On the basis of the information provided in the Applications it is impossible to determine the most appropriate form of Environmental Authority and appropriate conditions.
The applicant has applied for several MLAs and EA’s in close proximity. All of which include similar minerals and mining activities. As a rule, the EPA would require the holder to apply for a single EA covering several MLAs in this situation. It is possible that the impacts of the individual MLAs may be able to comply with the threshold triggers in the standard environmental code, however, the total disturbances of the combined MLAs will require a Level 1 EA. The applicant is circumventing the intention of the EPA in this case as Level 2 code compliant EA’s are not appropriate. The information provided in the EA application forms was insufficient for the EPA to issue standard EA’s for the MLAs.”

Applicants Objections to Evidence

At the commencement of the hearing, Counsel for the Applicants submitted that the Objector should be precluded from leading evidence relating to issues which fall outside of that contained within a duly lodged objection. The Applicants’ complaint centres on the “further particulars” provided by the Objector to the Applicants by letter dated 2 September 2008.
My compilation of the objections set out above contain in full the particulars contained in the letter of 2 September 2008. For present purposes, it is not necessary to repeat them here.
The Applicants contend that the Objector cannot rely on most of the further particulars of 2 September, 2008, or call any evidence with respect to so much of those particulars which are not already detailed in the duly lodged objections.
The Applicants rely for their submissions on the provisions of s.268(3) of the MRA which provides as follows:
"268 Hearing of application for grant of mining lease
(3) The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application."
The Applicants say that the prohibition in s.268(3) of the MRA is absolute rather than discretionary. The Applicants then go on to refer to s.260 of the MRA which is the provision by which objections may be lodged. Subsection (1) provides that objections are to be lodged with the Mining Registrar, in writing, in the approved form, on or before the last objection day for the application. Subsection (3) provides that an objection "shall state the grounds of objection and the facts and circumstances relied on by the Objector in support of those grounds".
There is clear authority for the proposition that a duly lodged objection must be filed with the Mining Registrar on or before the last objection date. There is no scope for an extension of time for the objection period, or discretion to otherwise allow an objection lodged out of time.[2]
[2] See, for example, ACI Operations Pty Ltd v Friends of Stradbroke Island Association Inc (2000) QLRT 7 and Kokstad Mining Pty Ltd v Lee (2006) 122, which was affirmed by the Court of Appeal in the decision of Lee v Kokstad Mining Pty Ltd (2007) QCA 248.
The question then to be asked is, do the particulars as set out in the Objector's letter of 2 September 2008, to the extent to which the applicant's take issue with them amount to proper particularisation of objections duly lodged, or should they be properly construed as new grounds for objections which are made out of time, and therefore cannot be entertained by the Court.
In my experience as a Member of the Land Court, and previously as a Deputy President of the Land and Resources Tribunal, I have never before seen duly lodged objections which cover every possible aspect of the MLA and environmental authority application process. Clearly, in my view, the Objector has made it known to the Applicants from the outset that they object in every possible way to the applicant's MLAs. They have put the Applicants on notice, by duly lodged objections made within time, that it is their contention that the Applicants have failed to comply with the provisions of the MRA in making their MLAs. Further, the Objector has also clearly put the Applicants on notice by its objections that it is concerned regarding what it sees as a lack of environmental rigour relating to the Applicants' application process.
The Objector's further particularisation of provisions of the MRA which the Objector claims the Applicants have not complied with, together with details of threatened bat and plant species which may be impacted by the Applicants' MLAs are, in my view, sufficiently proximate to the objections originally lodged and subsequently particularised to warrant their inclusion as proper further particulars, and not their exclusion as new grounds of objection.
It follows that, in my view, the Objector may rely upon the further particulars set out in the letter of 2 September 2008 and may properly call evidence with respect to such further particulars.

Credit of Witnesses

Ralph De Lacey

Mr De Lacey is a key applicant in each of the mining leases. Mr De Lacey provided four affidavits[3] and was subject to extensive cross-examination.
[3] See exhibits 27, 38, 40 and 45.
I have undertaken a careful, detailed analysis of each of Mr De Lacey's Affidavits. Mr De Lacey's evidence is wide ranging and, in some respects, uncontroversial. I accept his evidence of his long mining association with the region. I also accept his evidence as to his observations made of surface mineralisation relevant to the MLAs. As far as issues arise as to Mr De Lacey's knowledge and experience in mining and, in particular, small scale mining, I accept his evidence. I also accept his evidence that he has a significant depth of knowledge and experience in the MLA areas in general. However, with respect to some specific matters his testimony is, in my view, deceptive, deliberately misleading and lacking credit. An analysis of these specific aspects of Mr De Lacey’s evidence follows under separate headings.

Notice to landholders of intention to peg “a small mining lease”

There is no doubt that the Applicants held numerous prospecting permits which were used as the basis of pegging out the various MLAs referred to in this recommendation. There are questions as to whether or not proper notice of entry was given to landholders as required by s.32 of the MRA; that aspect of Mr De Lacey’s evidence is dealt with in a following sub-heading. However, what is beyond doubt is that, whether the Objector only received one notice of entry[4] with respect to PP no. 21021, or two notices of entry, including a notice with respect to PP no. 21023,[5] it is clear that both notices of entry included the same key sentence which is as follows:
"I am required to give you seven days notice that I will be entering your land to peg a small mining lease."
[4] That being the notice of entry as set out in exhibit 18, RH1.
[5] See exhibit 40, RD1.
Mr De Lacey’s stated intentions in using the words “a small mining lease” are set out in the following transcript exert while he was under cross-examination by Mr Ambrose SC:[6]
“With regard to this letter here RH-1 you’re giving a notice of entry that you’ll be entering the land to peg a small mining lease. Which small mining lease was this giving notice of entry to Kagara?-- That’s the generalisation as a person coming to peg a mining lease in a competitive field. I’m not going to say, ‘I’m coming in to peg six mining leases in precisely this spot and I’ll be there on 24th January to do so.’ I’m not going to do that. This is a generalisation, it’s a general notice of entry as required, specifically as required under the Mineral Resources Act, no more information but no less, just enough to satisfy the notice of entry has been served, that’s all. We’re not saying how many mining leases I’m going to peg and I don’t have to.
But you do, you say ‘a small mining lease’. You say you’re going to peg one?-- Where does it say one?
‘a small mining lease’?-- ‘a’ means I’m going to peg them one at a time. I didn’t say I’m going to peg one mining lease. You’re not trying to nail me on I said I’m going to peg one mining lease, I did not say that. I said I’m going to peg a small mining lease.
Which was it?-- I’m going to peg a small mining lease. I decided to peg a few while I was there, that’s how it went.
Do you agree that you were deliberately misleading the landholder?-- I wasn’t deliberately misleading. I do not agree with that. I was not deliberately misleading the landholder. I was providing the required information as required by the Mineral Resources Act and no more. I was serving him notice and no more."
[6] T p.22.
Clearly, Mr De Lacey is seeking the support of the MRA for his wording of the notice to enter. In this regard, s.32(1) and (2) of the MRA are relevant. They provide as follows:
"32    Notice of entry under parcel prospecting permit
(1)     A parcel prospecting permit holder must give the owner of the land covered by the permit notice of entry before initial entry is made under the permit.
(2)     The notice must be given at least 5 business days before the intended entry (or a shorter time acceptable to the owner and endorsed on the notice).
In addition, s.18(1) of the MRA details the entitlements that a prospecting permit gives a holder with respect to entry into land:
"18    Entitlements under prospecting permit
(1)     A holder of a prospecting permit for land may enter the land for―
(a)purposes necessary to enable the holder to apply for a mining claim or mining lease over the land; or
(b)      prospecting purposes; or
       (c)      hand mining for a mineral other than coal."
In my view, were Mr De Lacey's intentions truly as he has claimed, that is "a general notice of entry as required, specifically as required under the Mineral Resources Act, no more information but no less", then all that Mr De Lacey had to do was to refer to the prospecting permit and advise of his intention to enter the land after a period of 5 business days. Had Mr De Lacey chosen to be more helpful to the landholders, he could have referred the landholders specifically to sections 18 and 32 of the MRA. However, I am in no doubt that Mr De Lacey's reference to "a small mining lease" was deliberately deceptive and done with the intention of having the Objector in particular[7] gain the impression that Mr De Lacey only intended to peg a single mining lease under the relevant prospecting permit. Mr De Lacey's excuse that "a" means that he intended to peg mining leases one at a time is simply a nonsense.
[7] As a landholder.
My view of Mr De Lacey's deceptiveness in this regard is strengthened by reference to Mr De Lacey's affidavit, exhibit 27. RD1(a) is an exhibit to Mr De Lacey's affidavit. It is a copy of parcel prospecting permit no. 21003 together with a handwritten notation at the bottom. Parcel prospecting permit no. 21003 is in the name of Ralph De Lacey. The handwritten notation at the bottom of the parcel prospecting permit has been signed by the O'Sheas who are the landholders of the land subject to parcel prospecting permit no. 21003. The handwritten notation states as follows:
"We hereby give full permission to peg & mark out mining leases as per these permits nos. 21003 or permit no. 21004 as from & on the 6th day of January 2006."
From the evidence, it is clear that Mr De Lacey personally obtained the permission of the landholders to enter pursuant to parcel prospecting no. 21003 on the first day that the permit commenced, being 6 January 2006. Of course, pursuant to the MRA[8] a landholder may agree to allow entry earlier than the required five days notice. That is clearly what the O'Sheas have done in this case. The critical aspect though is that they have given permission to Mr De Lacey 'to peg & mark out mining leases'. Clearly, they were under no illusion that Mr De Lacey intended to peg and mark out more than one mining lease. That intention could only have been gained by the O’Sheas from Mr De Lacey.
[8] s. 2(2) MRA.

Delivery/Posting of notices to enter for various parcel prospecting permits

Section 32 of the MRA, set out above, makes it clear that the holder of a parcel prospecting permit must give the owner of land covered by the permit notice of entry before the permit holder enters the land. Given the mandatory nature of the wording of s.32(1) it is clearly in a permit holder’s interest to retain proof that the requisite notice has been given to all landholders. Unfortunately for Mr De Lacey, the evidence presented to the Court with respect to a number of the prospecting permits is anything but satisfactory.
On first reading Mr De Lacey's affidavit exhibit 27, the position insofar as notice to the Objector with respect to entry to its land under prospecting permits 21021 and 21023 appears straightforward. Paragraphs 29 and 41 of exhibit 27 state clearly that copies of the respective permits were posted to the Objector as landholder on 16 January 2006. However, in his next affidavit, exhibit 38, Mr De Lacey has this to say at paragraph 20:
“20 In my earlier affidavit, I depose to providing the respondent with copies of certain prospecting permits. The permits that I posed to the respondent on 16 January 2005 comprised all six permits that related to the respondent’s land. My omission to refer to all six permits in my earlier affidavit was an unintentional oversight.”
In his affidavit, exhibit 40, Mr De Lacey provides the following comments with respect to parcel prospecting permit no. 21203:
“1. I refer to my previous Affidavits filed in the Land Court on 5 June 2008 and 5 September 2008, and sworn 3 June 2008 and 4 September, respectively.
I attach at ‘RD1’ a copy of a letter dated 17 January 2006 together with a copy of Parcel Prospecting Permit No. 21203 which was sent to Kagara Pty Ltd at the address stated therein by ordinary prepaid post on that day.”
It is immediately apparent that Mr De Lacey has changed the date of posting to the Objector, at least with respect to parcel prospecting permit no. 21203, from 16 January 2006 to 17 January 2006. The reason for this change is unexplained, but perhaps is apparent when one views a copy of the notice for the prospecting permit which bears the date 17 January 2006. Such document is of course inconsistent with the document having been posted, as previously claimed by Mr De Lacey, on 16 January 2006.
Mr De Lacey was cross-examined by Mr Ambrose SC regarding the number of notices that he sent to the Objector. Firstly, Mr De Lacey gave the following evidence:[9]
“Could I take you to your second affidavit which is Volume 4, tab 21? Have you got that?-- I think I’ve got it.
At paragraph 20 you refer to posting the permits to the respondent?-- Yes.
To Kagara or to Mr Hetherington?-- No. There is a number of parties involved like the council, DNR. I posted two letters to Hetherington, only two. Two of those six were posted to Hetherington, not to Hetherington, to Kagara.
Care of Mr Hetherington?-- No, care of Kagara’s postal address.”
After further questioning by Mr Ambrose SC, Mr De Lacey stated that what he had sworn to in paragraph 20 of exhibit 38 was a “typographical error” and “an error in the typing, the preparing of the affidavit”. Mr De Lacey’s evidence in this regard is to be found in the following exert from the transcript:[10]
"Have a look at your affidavit at tab 21 of Volume 4 and in particular at paragraph 20? What you’re searing in paragraph 20 is that you refer to your earlier affidavit and providing the respondent with copies of prospecting permits. You say, ‘The permits that I posted’, you mean ‘posted to the respondent on 16 January 2005’, you mean ‘2007 comprised all six permits that related to the respondent’s land.’ Now you’re saying that you only sent two prospecting permits. Which is correct?-- Two is correct. That’s a typographical error. I didn’t post all six, I had no reason to post all six, I posted two.
Why then did you say, ‘My omission to refer to all six permits in my earlier affidavit was an unintentional oversight.’ You’re reinforcing the fact that all six were sent?-- All six weren’t sent. This is an error in the typing, the preparing of the affidavit."
[9] See T. p.18.
[10] See T. p.21.
In my view, Mr De Lacey cannot distance himself from the plain, unambiguous language used in paragraph 20 of exhibit 38. He clearly gives sworn evidence that he posted six permits relating to the respondent’s land on 16 January 2005 (sic) and that his "omission to refer to all six permits in my earlier affidavit was an unintentional oversight".
I find Mr De Lacey's evidence that his evidence as set out in paragraph 20 of exhibit 38 was wrong because of a typographical error or a typing error in preparing the affidavit quite extraordinary. In my view, for whatever reason, when Mr De Lacey prepared and swore his affidavit, exhibit 38, he was under the belief, albeit mistaken, that he should have forwarded six notices of entry to the Objector and not two as he had deposed to in his affidavit exhibit 27. Mr De Lacey's evidence in paragraph 20 of exhibit 38 is, in my view, a deliberate attempt by Mr De Lacey to correct what he then saw as an error in his earlier affidavit. Subsequently, at the hearing and during cross-examination, Mr De Lacey, in my view, clearly understood that only two notices were required to be sent to the Objector. Only two letters purporting to be notice to the Objector with respect to parcel prospecting permits nos. 21021 and 21023 are in evidence. In my view, there is no credit in Mr De Lacey’s testimony that paragraph 20 of exhibit 38 was produced by, in effect, accidental error. Certainly, in my view, no more than two notices of entry were forwarded by Mr De Lacey to the Objector on or about 16/17 January 2006. Mr De Lacey's evidence in exhibit 38, paragraph 20, was both deliberate and an attempt to deceive the Objector and the Court.

Mining approximately 200 metres from limestone caves in a national park containing a threatened species of bat

Mining lease 20497, tea tree revived, is located approximately, at one point, 200 metres from limestone caves which contain a threatened bat species.[11] The limestone caves are located in the Chillagoe Mungana Cave National Park.[12] I note that ML20510, tea tree extended, abuts tea tree revised on the north-eastern side, and is also in relatively close proximity, in part, to the national park.
[11] See T. p.45 line 12.
[12] Shown on map 2 of exhibit 51.
As regards his application for an environmental authority with respect to these mining leases and, in particular, ML 20497 which is in close proximity to the threatened bat species, Mr De Lacey gave the following evidence during cross-examination by Mr Ambrose SC:
“Let's just deal with the ones that you can agree with me on, that's the two Tea Trees, 20497 and 20510. At the time you made your application for a mining lease and environmental authority with respect to those two you knew that you intended to undertake mining activities and you knew that they were within two kilometres of the national park?-- That's correct.
You also were aware of the standard conditions of the code?-- Yes.
So you would have been aware that condition 14 of that code says that you must not carry out activities within two kilometres of a national park?-- That's correct, I'm aware of that. I'll answer it that in the past --
That's what I've asked you. You were aware of that?-- I'm aware of that and I'm aware that you can always add conditions and I have previously just been through adding a condition and we can work closer to the national park boundary. It is possible to do, you can't say it's not. ...
Having established that you knew and that you couldn't comply with condition 14 as it stood?-- I knew that I would be able to get a condition, I was confident that I could get a condition added to allow me to work closer to the national park because I've had experience in the past and I can do that. I've done it before and I know I can do it.
I'll take you to your environmental authority application for 20497, Volume 2 Mr De Lacey. You see the first white tag there deals with 497?-- Yes.
I'm taking you to document No. 3, the application form for the environmental authority?-- Yes.
If I take you to section 5 you certify in this application that you are able to comply with the standard environmental conditions of the code?-- Yes.
One of those environmental conditions is No. 14 which prohibits you from undertaking any activities?-- No, no, when we've got the mining lease granted, the tenure is granted, we develop our work program, we start getting added conditions. The first condition would be to work closer to the national park.
I can confidently tick that knowing that when this is granted I will comply with the codes but to go to the next step of mining, the mining operation, I may have to add conditions and that's the standard practice.
Mr De Lacey, when you advertise this in the newspaper for the public of Queensland to consider aren't they entitled to say, "Well he says he can comply with the - he certifies no less that he can comply with these conditions."?-- Yep.
It's not saying to the people of Queensland, "Well we can't comply unless we get the conditions changed."?-- It's not saying that.
That's exactly what you mean, "We can't comply until we get the conditions changed."?-- We can comply at grant. Once we start to carry out the impact
or --
You can't carry out any activities in breach of clause 14?-- Until we negotiate with the EPA. The EPA on behalf of the people of Queensland will impose conditions on us.
In which case do you accept that your environmental authority ceases to be a code compliant one if there are amendments to the code?-- The EPA will define that. If it comes to a point where they say we can't fit within a level 2 they will inform us that we have got to go up another level. That's also a common mining practice. We are actually going through that in another mining lease at the moment. It's done in stages. We start off at this level but we can progressively go up the scale and the EPA will bring that on to us. That happens all the time.
What opportunity have the people of Queensland had to object to your application for a code compliant EA in those circumstances?-- They rely on the ability of the EPA to enforce that and the EPA are very good at doing it.
I suggest to you where you said in answer to question 5 of your application for the environmental authority, "We are able to comply with the standard environmental conditions of the code." Where you have certified that I suggest to you that's untrue?-- I suggest to you that it's correct.
I suggest to you that it's inaccurate?-- It's not inaccurate, it is correct.
I suggest to you that it's misleading?-- It's not misleading, it's correct.
The truth being that you could not comply with condition 14, you could not comply with the code unless you had those conditions altered?-- The mining lease will be granted under level 2. That's when we'll start to address these other issues. If you're going to say are we going to carry out mining in three or four months after the grant of the mining tenure under this code without conditions added highly unlikely, the EPA will be adding conditions to it before we start mining activities.”

8.I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and
9.I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply.
10.Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009.

ORDERS – MLA 20497

11.I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted;
12.I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and
13.I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply.
14.Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009.

RECOMMENDATION – MLA 20500

15.Provided that special conditions consistent with paragraphs 178 and 179 are made, and subject to the Applicant obtaining the consent of the Department of Transport prior to the matter being considered by the Governor in Council and the Governor in Council exercising the discretion pursuant to s 238(1)(a) of the MRA or alternatively, if the Applicant is unable to obtain the consent of the Department of Transport, then I recommend that, prior to the MLA proceeding to grant, that the Applicant be required to lodge a variation of access not involving a railway crossing, 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 ML 20503 be granted to the Applicant, 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 Applicant

ORDERS – MLA 20502

16.I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted;
17.I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and
18.I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply.
19.Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009.

RECOMMENDATION – MLA 20503

20.Provided that special conditions consistent with paragraphs 178 and 179 are made, 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 ML 20503 be granted to the Applicant, 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 Applicant

RECOMMENDATION – MLA 20504

21.Provided that special conditions consistent with paragraphs 178 and 179 are made, 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 ML 20504 be granted to the Applicant, 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 Applicant

ORDERS – MLA 20510

22.I allow the Applicant until 4pm 19 June 2009 to file and serve written submissions as to the nature of any amendments that may be made to the draft environmental authority in light of condition 14, and whether, as a consequence of such amendments, the draft environmental authority would remain at level 2, (incorporating, as appropriate, suggested special conditions) or whether I have little discretion other than to recommend that the MLA not be granted;
23.I allow the Objector and the Statutory Party until 4pm 29 June 2009 to file and serve their written submissions in this regard (incorporating, as appropriate, suggested special conditions); and

24.I allow the Applicant until 4pm 3 July 2009 to file and serve written submissions in reply.
25.Should any party wish to be heard orally, they are to make their request to the other parties and the Court by 4pm 6 July 2009.

PA SMITH
MEMBER OF THE LAND COURT

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Citations

De Lacey v Kagara Pty Ltd [2009] QLC 77

Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

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Sinclair v Maryborough Mining Warden [1975] HCA 17

Lee v Kokstad Mining Pty Ltd [2007] QCA 248