Garimperos Ltd v Gary Dunn
[2012] QLC 52
•28 September 2012
LAND COURT OF QUEENSLAND
CITATION: Garimperos Ltd v Gary Dunn & Anor [2012] QLC 0052 PARTIES: Garimperos Limited
(Applicant)v. Gary Dunn
(Respondent)And Chief Executive, Department of Environment and Resource Management
(Statutory Party)FILE NOs: MRA410-10 and EPA413-10 DIVISION: Land Court of Queensland PROCEEDINGS: Application for Mining Lease 20547 and Objection to Mining Lease and Environmental Authority. DELIVERED ON: 28 September 2012 DELIVERED AT: Brisbane HEARD AT: Cairns MEMBER:
His Honour, Mr WL Cochrane
ORDERS: 1. Recommendation made to the Honourable the Minister for Environment and Resource Management that Mining Lease No. ML 20547 be granted over the application area for the purpose and for the term sought by the applicant. CATCHWORDS: Mining – Mining Lease – Objections – No Appearance by Objector – Mineral Resources Act 1989 ss.238, 245, 252, 269, 270. APPEARANCES: Mr R Lilley of Senior Counsel for the applicant with D Worrell instructed by MacDonnells.
No appearance by respondent.
Mr S Barclay, Legal Officer, Department of Environment and Resource Management.
Background
On or about 23 April 2007 the applicant herein Garimperos Limited made application for the grant of a Mining Lease pursuant to s.245 of the Mineral Resources Act 1989 (hereafter MRA).
At the time of making the application Garimperos Limited held three prospecting permits over the area.
The lease applied for is described as the “Summer Hill” lease seeking an area of 1,208.8 ha in a locality approximately 12 km north of Mt Garnett in the Herberton Shire in North Queensland.
The lease seeks to exploit tin, tungsten and gold deposits.
The subject land is land that may be subject to native title but the land is the subject of an indigenous land use agreement.
The background land tenures are described as Lot L230 on Plan AP4557 and Lot 220 on Plan CP903610. Lot L230 is presently held by Garry and Rosemary Burtenshaw.
Lot L220 is held by Garth Dunford.
Both properties are used for the purpose of cattle grazing and breeding. In addition the lease seeks to use part of the road reserve held by the Herberton Shire Council.
The applicant also holds Mining Lease 4349 which in the name Mount Veteran Minerals which lease will provide access to the land the subject of this application.
The access to the land is achieved over Mount Veteran Mill Road which is a gazetted council road. That gazetted road passes through the cattle grazing land held by the Burtenshaw’s.
The application for a lease was accompanied by a number of relevant documents including:
a)a copy of an outline of a proposed mining program which described the mining method as being open pit in the commodity sought as being tin (tungsten).
b)a map/plan showing the location of the Mining Lease application as well as the adjacent Mining Lease 4349.
c)aerial photographs showing the lease areas.
d)a certificate of registration of the company Garimperos Limited as a Public Company Limited by Shares.
e)an authorisation to John Douglas Stacpoole to make the application on behalf of Garimperos Limited.
f)common application details from mining tenement and environmental authority together with an application for an environmental authority (Mining Lease) for a level 1 mining project).
g)a financial and technical statement.
h)a current bank balance and audit details.
i)a certificate of application for Mining Lease No. 20547.
j)an environmental authority (Mining Lease) non-code compliant level 2 mining project pursuant to s.171 of the Environmental Protection Act 1994 in respect of ML20547.
k)a certificate of public notice for Mining Lease No. 20547.
l)a letter from the Tablelands Regional Council dated 19 December 2008 revealing that the Council had resolved to raise no objection to Mining Lease Application Number 20547 being granted subject to:-
1.no mining is to occur on road reserves
2.the miner will be responsible for any maintenance required on the road as a consequence of the mining activity, and
3.a compensation agreement is to be negotiated which includes specific reference to the above terms.
Additional information was sought by the mining registrar and on or about 7 September 2010 an additional Mining Lease Applicant Information and Statutory Declaration was delivered by the applicant.
Relevantly that additional Statutory Declaration identified “RC” Drilling ALS Assay Results as the source of belief by the applicant that the proposed mining lease area was mineralised.
It also set out that Extreme Resources has geologists and managers with a great deal of experience ranging from exploration to open pit mining of resources.
In correspondence before the Court it became clear that Garimperos Limited is a wholly owned subsidiary of MGT Mining Limited (formerly Extreme Resources Limited (ABN 14 120 236 142)).[1]
[1] Exhibit 6 Affidavit of Monemvasitis Ex GM21 and GM 24.
On or about 1 September 2010 the respondent Mr Dunn submitted an objection form against both the application for a mining lease and the application for an environmental authority.
Given the manner in which the hearing of this matter unfolded it is appropriate to identify in their entirety the grounds relied upon by Mr Dunn for his objection.
They were set out on the objection form in the following terms:
“Garimperos Limited want to create huge amounts of dust in an area naturally prone to dust. This will kill off the little bit of natural vegetation that remains after the cattle have reeked havoc on most of the native species. (1, 2)
Mining would also release the heavy metal contamination intrinsic to the whole area. It would be is not only in the dust but, where it is concentrated in the tailings left over from the last mining phase, the mining process will wash it into the waterways that feed Nanyetta (Return) Creek. This is the water that supplies the town of Mt Garnett and beyond. (1, 2)
The roads will not support the increase in heavy machinery. (1, 2)
Facts and circumstances relied on in support of the grounds of the objection
The proposed mine borders the property on which we live. We are directly in line of the prevailing winds that will be bringing the dust from the excavations and the increased traffic … especially the large vehicles. This is a windy area where the disturbed soils readily erode to dust in the prolonged dry. It is so for all but 3-4 months of the year when there is the wet seasonal deluge which cannot be contained.
The damage to the surrounding environment causes by the dust is readily seen along the section of road between the Lime-Works and the town where there is mine related traffic. The dust is killing off the flora and many of the species are rarely found elsewhere. With new mining activity and more traffic covering wide areas, the resultant devastation to the countryside would be disastrous. There is a DERM report that has listed this area to be mined as a sensitive area containing endangered species of both fauna and flora.
The heavy metal contaminants such as arsnic and lead will be in the dust as well as where they are concentrated in the tailings. These contaminants however, tend to remain inert unless they are disturbed as these people intend to do.
As with other proposed mines in the area, the holding dams may work well enough in the dry time but, when the rains come, all the contaminated water flows downhill to the town. Mt Garnett is the lowest point of a large catchment area which, like Mount Isa, was built in its present location to catch all the available water for the dry times. This system works well provided there is no active mining upstream but, unfortunately, mining is being allowed to happen. Mt Isa’s health problems, including the skin eruptions and brain damage … especially to the children, are testimony to the results. Such wilful environmental vandalism must be stopped.”
On or about 3 June 2010 the Mining Registrar at Mareeba received a signed copy of a compensation agreement entered into between Extreme Resources Limited as the parent company of Garimperos Limited and the Burtenshaw’s. Accordingly, no determination by this Court of the issue of compensation in respect of any mining lease is required.
It should be noted that there exists deep-seated and long standing animosity between Mr Dunn the objector and the Burtenshaw’s. It is unnecessary to descend to any great particularity save to identify that correspondence which has found its way onto the Court file makes it clear that neither the Burtenshaw’s nor Mr Dunn trust each other. There is deep-seated and long standing disharmony between them.
Mr Dunn is a well know and a vociferous objector to mining activities conducted in and around the Burtenshaw property.
A pre-arranged site inspection was conducted of the Burtenshaw’s property and the mining lease land in particular. That was achieved by both helicopter and four wheel drive vehicle. Mr Dunn and the Burtenshaw’s were advised in advance of that proposed inspection and were invited to participate. Because of the deep-seated animosity between those two parties neither attended the site inspection despite the invitation to do so.
Each of the Burtenshaw’s and Mr Dunn had advised the Court prior to the inspection of their disinclination to attend.
In some of the correspondence on the Court file Mr Dunn is represented by Ms Frances Ford who identifies herself as receiving a small carer’s allowance to assist Mr Dunn “because of the brain injury that he acquired in a building accident”.[2]
[2] Email received by Land Court Wednesday 10 August 2011 at 3.49 pm.
In the course of the hearing on 11 August 2011 detailed information was read into the record of the background to the failure by either the Burtenshaw’s or Mr Dunn to attend the inspection.[3]
[3] T.1-1 – 9.
At the hearing I also took the cautious approach of having Mr Dunn called three times by the Deputy Registrar but, as I indicate above there was no appearance.
Notwithstanding the absence of any interested party either the landowner or the objector I still needed to be satisfied of all those matters set out in s.269 of the MRA and accordingly Mr Lilley informed the Court that he proposed to proceed as though the matter was the subject of a full hearing. Needless to say given the absence of the objector there was no cross-examination of any witnesses. All of the evidence of the applicant Garimperos was tendered in statement form without objection.
In addition to the application material and additional information provided to the Registrar the material relied upon by Mr Lilley of Senior Counsel included two affidavits of George Monemvasitis (Exhibits 6 and 7), an affidavit of Dr Michael Andrew Gilbert (sworn 7 June 2011), and an affidavit of Ingrid Heleen Fomiatti Minnesma (Exhibit 17).
Section 269(4) of the MRA sets out the matters which I am obliged to take into account when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part.
Section 269(4) is as follows:
“(4)The Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider whether—
(a) the provisions of this Act have been complied with; and
(b)the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate; and
(c)if the land applied for is mineralised, there will be an acceptable level of development and utilisation of the mineral resources within the area applied for; and
(d)the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape in relation to—
(i) the matters mentioned in paragraphs (b) and (c); and
(ii)the type and location of the activities proposed to be carried out under the lease and their likely impact on the surface of the land; and
(e)the term sought is appropriate; and
(f)the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease; and
(g)the past performance of the applicant has been satisfactory; and
(h)any disadvantage may result to the rights of—
(i)holders of existing exploration permits or mineral development licences; or
(ii)existing applicants for exploration permits or mineral development licences; and
(i)the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management; and
(j)there will be any adverse environmental impact caused by those operations and, if so, the extent thereof; and
(k)the public right and interest will be prejudiced; and
(l)any good reason has been shown for a refusal to grant the mining lease; and
(m)taking into consideration the current and prospective uses of that land, the proposed mining operation is an appropriate land use.”
In taking into account the matters set out above derived from s.269(4) of the Act, I have relied upon the material contained within the applicant’s application and the additional information and statutory declaration referred to above. In order to understand the evidence and the documentary material lodged on behalf of the applicant the Court’s inspection of the application area, proposed access and the mining operation has also been of benefit to me.
I have also relied upon the material tendered by the applicant at the hearing (to which more detailed reference will be made below) and the Mining Registrar’s report in relation to this application.
I have also had regard to the material filed by Mr Dunn which I took the precaution of making exhibits before the Court so that full consideration could be given to the matters raised by Mr Dunn even though he did not appear and although there was no opportunity for the applicant’s counsel Mr Lilley of Senior Counsel to cross-examine Mr Dunn as to any of the allegations raised by him.
Section 269(4)(a) – Have the provisions of the Act been complied with
On 28 July 2010 the Mining Registrar issued a Certificate of Application. The Mining Registrar is only entitled to issue that certificate if satisfied that the applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the application. That is provided for in s.252 of the MRA.
In my opinion, there is sufficient evidence of compliance with the provision of the Act with respect to this application.
Further, on 28 July 2010 the Mining Registrar issued a Certificate of Public Notice pursuant to s.252A of the MRA.
Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate?
On the material which has been tendered before me I am satisfied that the land applied for is mineralised. I note that Dr Gilbert in his affidavit sworn 7 June 2011[4] expresses his opinion that the proposed area of the mining lease is mineralised.
[4] Exhibit 12 paragraph 7 and 8.
Significantly Dr Gilbert points out that there are a total of 56 historic mine workings within the project area boundaries.
It is clear that in the past extensive mining activities have occurred on the subject site and the land is located in a known mineral producing area.
The affidavits of Mr Monemvasitis[5] reinforce, by reference to historic records and drilling records carried out by the applicant, that there is extensive mineralisation on the subject land.
[5] Exhibits 6 and 7.
As learned Senior Counsel for the applicant points out in his written submissions the objections of Mr Dunn are also founded on the basis that the land is mineralised.
There are other uses proposed on the subject site including a fuel storage area and further infrastructure for mining and stock piling of spoil and top soil for future rehabilitation obligations. To the extent that part of the lease seeks to facilitate purposes other than actual mining, I am satisfied that those purposes are entirely appropriate.
The site inspection reinforced the evidence given before me that there is already extensive infrastructure established on the subject land.
Section 269(4)(c) – If the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for?
I am satisfied from the evidence before me that the level of development proposed is acceptable and the applicant fully intends to utilise the mineral resources within the area applied for.
Mr Monemvasitis[6] says:
“The hard rock mill, tailings dam office, camp, machinery and sheds which will be used on the project area will be located within the land already subject to ML4349. The Mill is fully refurbished with Jaw Crusher, Fine Ore Bin, Ball Mill, Spirals, Concentrator, Derek Screen and Vibration Tables all fully installed and commissioned. The site office and accommodation for 12 people is also completed.”
[6] Exhibit 6 paragraph 35.
Later in that same exhibit Mr Monemvasitis informed the Court that[7]:
“Garimperos anticipates that approximately one 20 tonne shipment of tin concentrate per month by semi trailer to Cairns, via Mt Garnett, will be completed. The concentrate will be transported in 1 tonne bags.”
[7] Ibid paragraph 38.
The evidence of Mr Monemvasitis is supported by the evidence given by Dr Gilbert in his affidavit[8] where, having informed the Court of information obtained by him from the officers of the applicant company, he expresses the view:
“In my expert opinion, this is an acceptable level of development and utilisation of the mineral resources within the Project Area.”
[8] Exhibit 12 paragraph 10.
Of course by his non-appearance the objector forfeited his entitlement to cross-examine each of Mr Monemvasitis and Dr Gilbert so that their expert evidence went in unchallenged.
The material before me clearly sets out the applicant’s proposed mining operations and program and shows, in my opinion, appropriate development and utilisation of the mineral resources within the area applied for.
Section 269(4)(d) – Whether the land and the surface area of that land are an appropriate size and shape?
In his first affidavit[9] Mr Monemvasitis exhibits a sketch plan of the Project Area which sets out:
[9] Exhibit 6.
(a)Project Area Boundaries
(b)Tin Deposits
(c)Excluded Areas
(d)Mine Access Road
(e)Mine Hall Track
(f)Nearby Residences
(g)Males Creek Catchment
(h)Watercourses
(i)Power Lines.
I am satisfied having scrutinised that sketch plan[10] that the land and the surface area of the land applied for are of an appropriate size and shape to accommodate the Project proposed by the applicant.
[10] Exhibit GM 7 to Exhibit 6.
It was also established to my satisfaction by the affidavit of Dr Gilbert[11] that all of the proposed mining sites are located more than 350 metres inside the Project Area boundary thus providing buffering.
[11] Exhibit 12 paragraphs 12 and 13.
Section 269(4)(e) – Whether the term sought is appropriate?
The applicant seeks a lease period of 21 years for this proposal which I was advised would constitute the only commercial tin operation on mainland Australia.
The affidavit of Mr Monemvasitis together with the material exhibited to the affidavit of Dr Gilbert[12] satisfies me that, given the large area of the proposed lease and the extensive expenditure which has both been undertaken and is intended to be undertaken in the future, the length of the lease of 21 years is an appropriate term.
[12] Exhibit 12 paragraph 15 and Exhibit MAG2.
As learned Senior Counsel for the applicant points out in his submissions that term allows for further exploration of deposits within the Project Area, the development of open-cut pits and underground mines and, over the term rehabilitation of the disturbed areas.
Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?
The material contained in the two affidavits of Mr Monemvasitis satisfies me that the applicant has the necessary financial and technical capabilities to carry on the mining operation. It has been successfully undertaking mining and exploration activities for more than 8 years and the financial data exhibited to the affidavits satisfies me that this criterion is met.
Section 269(4)(g) – Has the past performance of the Applicant been satisfactory?
No evidence was put before me which suggests that there are any “skeletons” in the closet of the applicant. There has been no previous performance by the applicant against which its conduct can be assessed but the affidavit material filed on its behalf satisfies me that it proposes to both develop the resource and behave in a responsible corporate manner.
It was raised in discussion with Senior Counsel for the applicant before me that the Court ought not approach the conduct of an applicant on the basis that it is expected to behave irresponsibly or unlawfully. The purpose of the environmental authority and compliance with the relevant code and the possibility of enforcement action being taken in response to unsatisfactory conduct satisfies me that there is no basis upon which to anticipate that its future performance will be unsatisfactory and accordingly I am satisfied that the criterion set out in s.269(4)(g) is satisfied.
Section 269(4)(h) – Whether any disadvantage will result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences?
The only proximate lease is ML4349 which is already held by the applicant and there was no evidence of any other existing or other pending applications in or around the Project Area to which I should have regard.
In all of the circumstances there is nothing which indicates to me any disadvantage to any other holder.
Section 269(4)(i) –Whether the operations to be carried on under the authority of the mining lease conform with sound land use management?
There is nothing in any of the evidence before me to suggest that the proposed operations do not conform with sound land use management. The applicant is the holder of a current level 2, non-code compliant environmental authority and as such is required to comply with the code of environmental compliance together with any additional conditions which might be imposed by the relevant statutory authority.
The processes which were used to assess the environmental authority application are outlined in the affidavit of Ingrid Heleen Fomiatti Minnesma and I am satisfied that those processes have subjected the application to close scrutiny.
In particular it should be noted that the first and second grounds of objection raised by Mr Dunn namely the dust and water contamination were considered in the assessment and the statutory authority was satisfied (as evidence by the issuing of the level 2 authority) that adequate protection with respect to those matters would be achieved by compliance with the environmental code.
Moreover, as the applicant has submitted, the activities proposed by it do not appear to compromise any proposal for continued grazing as essentially the land can still be grazed save for those areas which are the subject of current mining activity. The landholding is a large one and I come to the view that the operations of the mining will not compromise the otherwise sound use of the balance of the land for grazing.
Management of the mining lease area itself is, of course, subject to the conditions set out in the environmental authority including requirements for a rolling program of rehabilitation of mined areas.
In my view, the operations which are proposed to be carried out conform with sound land use management.
Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof:
The objections of Mr Dunn have been set out in some detail earlier in this decision.
Mr Dunn’s objections related to:
(a)The creation of dust in an area naturally prone to dust.
(b)The potential release of heavy metal contamination intrinsic in the whole area including the release of contaminants from existing tailings from the last mining phase and associated with that heavy metal contamination damage to the waterways that feed Nanyetta (Return) Creek which supplies the town water for Mt Garnett and other areas.
(c)Damage to the roads which would not support the increase of heavy machinery.
As indicated above the objector did not appear at the hearing of this matter to support his contentions or to attempt to cross-examine any of the witnesses called by the applicant.
Notwithstanding with failure to appear it still, in my opinion, behoves the Court to consider the objections raised by the objector and to consider the material otherwise placed before the Court to determine whether the objections have any merit such as my course either an inclination to recommend refusal of the mining lease or an amendment to the conditions of the environmental authority.
There is nothing in the material before me which would lead me to the view that the objections are meritorious or that any change to the conditions attaching to the environmental authority are warranted.
The objector had every opportunity to adduce evidence in support of his objection or, at least to give evidence himself in support of his contentions. He chose not to do so.
Accordingly, I find that there is no evidence of any adverse environmental impacts which I need to take into account in my deliberations.
Section 269(4)(k) – Will the public right and interest be prejudiced?
There is nothing in any of the material which has been placed before me to indicate that there is any prejudice or likelihood of prejudice to the public right and interest. Any concerns about environmental matters are, in my view, adequately addressed in the environmental authority which has attached to it a certain enforcement rights should any non-compliance be detected.
Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease?
There was no evidence before me that I could rely on that in any way justified refusing to grant the mining lease.
Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land?
All of the evidence before me points to the presence of a potentially valuable mineral resource which is capable of extraction subject to compliance with the appropriate environmental conditions set out in the level 2 environmental authority. I am, accordingly, satisfied that the proposed mining operation is an appropriate land use.
Recommendation
Taking into account all the evidence before me and, in particular, those evidentiary matters referred to above, and also having regard to the objections raised by the objector but not supported at the hearing I recommend to the Honourable the Minister for Environment and Resource Management that Mining Lease No. ML 20547 be granted over the application area for the purpose and for the term sought by the applicant.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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