Garimperos Ltd v Gary Dunn - [2012] QLC 52

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] QLC 52
Decision Date: 28 September 2012

CaseChat Overview and Summary

The case of Garimperos Limited v Gary Dunn involved a dispute over a mining lease application, with Gary Dunn objecting to the proposed mining activities. The objection centred around environmental concerns, including dust generation, heavy metal contamination, and the impact on local flora and fauna, as well as the potential for contamination of water supplies for the town of Mt Garnett. The matter was heard in the Queensland Court of Appeal.

The central legal issues the court had to address were whether the objections raised by Mr. Dunn were valid and sufficient to warrant the denial of the mining lease, and whether the absence of Mr. Dunn at the hearing precluded the court from considering his objections. Additionally, the court had to consider the implications of a compensation agreement that had been entered into between the Burtenshaw's and Extreme Resources Limited, the parent company of Garimperos Limited.

In resolving these issues, the court found that Mr. Dunn's objections were indeed valid and grounded in legitimate environmental concerns. However, the court also determined that the absence of Mr. Dunn from the hearing did not preclude the court from considering his objections, as the objections were well-documented and presented through written submissions. The court emphasised that the objections were serious and warranted careful consideration. The compensation agreement between the Burtenshaw's and Extreme Resources Limited did not affect the court's consideration of the objections, as the primary focus was on the merits of the objections rather than the compensation issue.

The court ultimately recommended 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 term sought by the applicant, Garimperos Limited. This decision was based on a careful consideration of the evidence and arguments presented, taking into account the environmental concerns raised by Mr. Dunn.

Orders

Orders of the court

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.

Background

Background to the litigation

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 objectionThe 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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.