Everest v Kowtun

[2014] QLC 22

LAND COURT OF QUEENSLAND

CITATION:

Everest v Kowtun & Anor  [2014] QLC 22

PARTIES:

Alexander Everest
(applicant)

v

Bohdan Kowtun and Della Cameron
(objectors)

FILE NO:

MRA286-13

DIVISION:

General Division

PROCEEDING:

Hearing of objections to grant of a mining claim

DELIVERED ON:

20 May 2014

DELIVERED AT:

Brisbane

HEARD ON:

23 October 2013
Submissions closed 29 November 2013

HEARD AT:

Emerald

MEMBER:

PA Smith

ORDER:

The Honourable the Minister responsible for the MRA is instructed to grant MC 72275 with the Special Condition “That the holder or holder’s agent must not fence, obstruct or interfere with any existing tracks or access ways on the claim”.

CATCHWORDS:

MINING CLAIM – HEARING OF OBJECTIONS – Rights of access of other mining claim or Land Act tenure holders – access to bulk power lines – whether special condition should be applied to mining claim

Mineral Resources Act 1989, ss 78(1) and 81(i)
Land Act 1994

APPEARANCES:

Mr R Feyen as agent for the applicant
Mrs K Kowtun for objector B Kowtun
Ms D Cameron, self-represented

Background

1. On 6 September 2012, Alexander Everest (the applicant) lodged an application pursuant to s 61 of the Mineral Resources Act 1989 (the MRA) for mining claim 72275. Prior to the close of objections on 27 November 2012, Bohdan Kowtun (objector Kowtun) and Della Cameron (objector Cameron) both lodged duly made objections to the grant of MC 72275 with the Mining Registrar, Emerald.

2. For reasons unknown to the Court, the objections were not referred to the Land Court until 21 August 2013.

3. MC 72275 is located in the vicinity of Bedford Hill Road, Rubyvale, and is on Unallocated State Land (USL). It is within a well known, long established, gemfield. Many other mining claims are located within close proximity to MC 72275.

4. MC 72275 is over an area of 887 m² and is sought for the purpose of mining gold, diamond, sapphire and zircon.

The Objections

1. Both objections make it clear that they do not oppose the granting of the mining claim. Both objectors have mining claims in the vicinity of MC 72275.

2. The common ground of objection is against the applicant’s intention to fence the perimeter of the mining claim and thus stop access to a long established track which traverses the mining claim.

3. The objections point to the use of the track as access to existing mining claims and other land tenures, as well as its use by vehicles of service providers such as police, ambulance, fire brigade and electricity supply.

The Hearing

1. The hearing of this matter took place in Emerald on 23 October 2013 and included a site inspection in the presence of the parties.

2. All of the persons who appeared at the hearing are small miners from the gemfields, and none have legal qualifications.

3. Due to work commitments, the applicant was unable to be present at the hearing. He was represented at the hearing, and throughout these proceedings, by his agent, Mr R Feyen. Mrs K Kowtun represented her husband, objector Kowtun, and objector Cameron self-represented.

4. Following the hearing, it emerged that the Mining Registrar, Emerald, had failed to provide the Court with the necessary Land Court Form 7. This meant that the Court was also not in possession of Land Court Form 9 (Additional Applicant Information and Statutory Declaration).

5. A completed Form 7, including Form 9, was subsequently provided to the Land Court and each party. By direction of the Court, the parties were allowed time to make any submissions they considered appropriate regarding the Form 7 and all of its annexures, including Form 9, and the matter was formally reserved for decision on 29 November 2013. This reserve date pushed this matter down my “cab rank” of matters awaiting decision.

6. Unfortunately, as a result of an accident totally beyond my control, in December 2013 I sustained injury and was unable to work for a period of time. The parties have been kept informed of the delay caused by my accident.

7. It is indeed unfortunate that the applicant did not complete the Form 9 in 2012 as required, only completing same on 18 November 2013. This of course had the effect of not allowing the Mining Registrar to provide Form 7 to the Land Court until 19 November 2013, thus resulting in the later close of submissions.

8. Prior to the realisation that the Form 7 was not in the possession of the Land Court, I had commenced drafting the decision with the intention of handing the decision down in November 2013.

9. Of course, the Form 7 and subsequent delays made the delivery of the decision in November 2013 impossible. Then followed my injury and further delay. I apologise to the parties for the additional delay occasioned by my injury. It must though be remembered that the time it has taken to finalise this matter since the mining claim was first applied for has primarily been due to two factors:  the delay in referral of the objections to the Court, and the unexplained delay of the applicant of almost 12 months in supplying the Form 9.

The Evidence

1. Oral evidence was given at the hearing by three people:  Mr Feyen; objector Kowtun and objector Cameron. Their evidence was supported by statements and other material which became exhibits.[1]

   [1]        Exhibits 5, 1, 4 and 6 respectively.

2. In addition to the oral evidence and exhibits referred to, various other statements were provided to the Court. Mr Everest was of course not available for cross-examination and no party required the maker of any of the other statements for cross-examination.

3. As was expressed by all parties, it is unfortunate that a dispute amongst members of a gemstone mining community should necessitate a Court hearing when all present are strong supporters of small mining. However, once battle lines were drawn, issues were raised in an attempt to discredit objectors and applicant/agent alike.

4. As the evidence shows that some of the allegations involve matters relating to police investigations, and others which are, in the end, either of no relevance or little relevance to the proceedings, I do not intend to make detailed findings on all of the evidence. Instead, having considered all of the evidence before me, including all of the material provided by the Mining Registrar, I make the following findings of fact:

   ·MC 72275 is traversed by a bulk power supply line.

   ·MC 72275 is traversed by a track which has been in existence since at least the 1970s.

   ·The track, although dirt, gives good all-weather access.

   ·The track provides access from various mining claims and Land Act 1994 tenures to Bedford Hill Road.

   ·The applicant proposes to fully fence MC 72275.

   ·Mr Feyen and/or the applicant have used machinery to push a new track around MC 72275.

   ·The new track was pushed so that continued access could be had for the impacted mining claim and Land Act tenure holders in the event of MC 72275 being fenced.

   ·The new track has no road base and there is no evidence that it is all-weather.

   ·The holder of ML 71026 did provide an approval for the new track to be placed over her mining claim.

   ·Local police, ambulance and rural fire services have no objection to the fencing of MC 72275 and resulting closure of the existing track as they considered that they have other tracks that can be used for emergency access purposes if necessary.

   ·No evidence has been provided as to the view of the bulk electricity provider as to either the closure of the existing track or the co-existence of MC 72275 and the bulk power lines.

   ·The Mining Registrar stated the intention that, pursuant to s 81(1AA) of the MRA, an additional condition was to be imposed on MC 72275 thus:  “That the holder or holder’s agent must not fence, obstruct or interfere with any existing tracks or access ways on the claim”.

   ·No evidence was provided to the Court by any party (and in particular by neither the applicant nor Mr Feyen) that either the Mining Registrar or Minister responsible for s 81 (1AA) of the MRA now has a different view as to the appropriateness of the stated special condition.

   ·The applicant wishes to fence the entire mining claim for workplace health and safety reasons and also because he plans on keeping dogs on MC 72275.

   ·It is possible for the applicant to drive a pit on MC 72275 away from both the existing track and powerlines and to fully fence any such pit and campsite without interfering with the existing track or access to the powerlines.

Conclusions

1. Although I understand the reasons why the applicant wishes to fence the full area of the mining claim, the evidence shows that he can undertake mining activities; meet his workplace health and safety obligations; and secure his dogs without interfering with the existing track or access to the powerlines.

2. This is telling, given his and Mr Feyen’s lack of evidence regarding the powerlines, and the fact that closure of the existing track will impact the right of access of existing mining claim holders and Land Act tenure holders.

3. I should make an observation as to the question of right of access to other mining claim holders and Land Act tenure holders. I have not been specific in my findings of fact as to precisely which mining claim and Land Act tenure holders will have their right of access impacted, as the evidence, from all sides, simply does not go far enough to allow me to confidently identify same, although it is sufficiently expressed, and not contradicted, so as to allow me to find that such holders are impacted.

4. For completeness, I should state that I have made the inference that MRA tenure access to the Kowtun mining claim is via a different route and so I do not include their right of access amongst those impacted as stated in the preceding paragraph.

5. It is also telling that both the applicant and Mr Feyen have a legal misunderstanding as to how one can go about closing access on an existing track, and thereby disrupting rights of access. One cannot just take one’s own machinery on to USL and push a new track anywhere one pleases.

6. Prior to changing any right of access, a mining claim holder must obtain the approval of the Minister responsible for the MRA.[2]

   [2]See s 81(i) of the MRA.

7. In the circumstances of this matter, and in light of my conclusions above, I have no option but to instruct the Honourable the Minister responsible for the MRA, pursuant to s 78(1) of the MRA, to grant Mining Claim 72275 with the Special Condition “That the holder or holder’s agent must not fence, obstruct or interfere with any existing tracks or access ways on the claim”.

Costs

1. The applicant has sought an award of costs against the objectors because of, what he says, is the delay to his commencing mining caused by the objectors.

2. Of course, it is true that, if there had not been any objections to the mining claim, the applicant could have reasonably expected that the MC 72275 would have been granted in late 2012 or early 2013. However, such grant would have included, I infer, the Special Condition that I have now instructed the Honourable the Minister to make.

3. Rather than the applicant being delayed by the objectors, this decision vindicates the stance that the objectors made.

4. Further, this Court undertook all appropriate measures to quickly hear the matter once it was referred and to proceed to a decision.

5. The applicant/Mr Feyen should look at their own conduct in failing to lodge the Form 7 for almost 12 months as at least part of the cause of the delay in this matter.

6. In the circumstances, I am not persuaded that it would be appropriate to make an award of costs against the objectors.

Order

The Honourable the Minister responsible for the MRA is instructed to grant MC 72275 with the Special Condition “That the holder or holder’s agent must not fence, obstruct or interfere with any existing tracks or access ways on the claim.”

PA SMITH

MEMBER OF THE LAND COURT