Genesis Resources Ltd
[2011] QLC 22
•6 April 2011
LAND COURT OF QUEENSLAND
CITATION: Genesis Resources Ltd [2011] QLC 0022
PARTIES:Genesis Resources Ltd
(Applicant)
FILE NO:MRA753-10
PROCEEDING: Application for Mining Lease No 80166
DELIVERED ON: 6 April 2011
DELIVERED AT: Brisbane
MEMBER:Mr PA Smith
ORDER:Recommendation made that Mining Lease 80166 be granted.
CATCHWORDS: Mining – mining lease – all objections withdrawn following negotiations – jurisdiction of the court – hearing on the papers - recommendation
Mineral Resources Act 1989, ss 245, 252, 265, 269 and 773
Land Court Rules 2000, ss 35 and 36
APPEARANCES: Not applicable - Heard on the Papers
On 15 January 2010 Genesis Resources Ltd (“the Applicant”) lodged Mining Lease Application No 80166 with the Mining Registrar, Rockhampton District. The Application was lodged pursuant to s. 245 of the Mineral Resources Act 1989 (“the Act”) for the purpose of mining for manganese ore. Although objections were duly lodged to both the Mining Lease application and the draft Environment Authority, following negotiations between the parties all objections have been withdrawn.
Jurisdiction of the Land Court
Subsequent to the application being lodged, but prior to the objections being duly made, the Act was amended by Act No 17 of 2010. Those amendments included amendments to s. 265 of the Act.[1] As the application was lodged prior to the commencement of the amended s 265, the provisions of s 773 apply.[2] Pursuant to s.773(3), amended s.265 applies to this application because the properly made objections were lodged after commencement.[3]
[1] See 2010 Act No. 17 s.50.
[2] Section 773(1).
[3] Objections were lodged on 28 October and 1 November 2010.
The relevant scheme of the amendments made to the Act by Act No 17 of 2010 involved the removal of this Court’s jurisdiction to deal with applications to which no objection is duly made. It is necessary to closely consider the wording of the current provisions of the Act, and s 265 in particular, to ascertain the position when objections are duly lodged to applications but such objections are all withdrawn prior to the Court conducting its hearing under s.268.
The jurisdiction of the Land Court to hear this matter came about as a result of the Mining Registrar for Rockhampton referring the application and objections to the Court in accordance with s.265(2). There is nothing in the Act to suggest that the withdrawal of all objections results in a loss of jurisdiction by this Court. Rather, the contrary position would appear to be clear. Section 269 of the Act relates to the Court’s recommendation on hearing the application. It requires the Court to forward to the Minister “any objections lodged in relation thereto”.[4] By its plain language, this clearly contemplates circumstances where there are no current objections.
[4] See s.269(1)(a).
In my view, it is necessary for the Court to make a recommendation to the Minister in this matter under the ‘new’ s.265 even though there are no longer any properly made objections. Having been seized of jurisdiction by the referral from the Mining Registrar, and in the absence of any clear legislative intent for that jurisdiction to end on the withdrawal of the objections, the Court must exercise its jurisdiction in accordance with the Act and make its recommendation to the Minister pursuant to s.269.
Request to dispense with a hearing
The Applicant has requested that the application be dealt with without an oral hearing.[5] At the time when the application was lodged, s.270 of the Act made specific reference to such a request. However, following the amendments to the Act in 2010 already referred to, s.270 has been omitted from the Act.[6]
[5] See Applicant’s Additional Information and Statutory declaration of 3 November 2010.
[6] See 2010 Act No17 s 51.
In the absence of any specific reference to the manner of hearing an application in the Act, the Land Court Rules 2000 apply. Pursuant to Rule 35(1), a party making an application “may, with the written consent of the other parties to the proceeding, ask the court to decide the application without an oral hearing”. In this matter, the applicant is now the only party before the Court. In my view, the applicant has provided sufficient material to the Court in order for the Court to properly make a recommendation as required by s.269 of the Act. Accordingly, pursuant to Rule 36, I consider it appropriate to decide this matter without an oral hearing.
Section 269(4) criteria
In taking account of and considering the criteria specified in s.269(4) of the Act, I have relied on the Applicant’s Additional Information and Statutory Declaration. I have also relied upon the other material lodged by the Applicant with the Mining Registrar and the Mining Registrar’s Report in relation to this Application. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account.
It should be noted that the Applicant has provided significant material to both the Court and to the Mining Registrar to assist its application process. The Applicant is to be commended for the attention to detail that it has shown.
Section 269(4)(a) – Have the provisions of the Act been complied with?
On 27 September 2010, the Mining Registrar issued a Certificate of Application. The Mining Registrar can only issue the 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.[7] I note that the application is over freehold land. In my opinion, there is sufficient evidence of compliance with the provisions of the Act in respect to this application.
Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate?
[7] See s.252 of the Act.
I am satisfied from the Applicant’s evidence that the land applied for is mineralised. I note the Applicant’s evidence that this land has been previously used for mining.
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?
The material before me reveals the Applicant’s proposed mining operations and program, and shows appropriate development and utilisation of the mineral resources within the area applied for.
Section 269(4)(d) – Is the land and the surface area of that land in respect of which the mining lease is sought of an appropriate size and shape?
The material before me appears to indicate a mining lease application of an appropriate size and shape in light of the proposed mining operation.
Section 269(4)(e) – Is the term sought appropriate?
The term sought for this mining lease is 6 years, which I consider appropriate.
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 indicates that the Applicant has the financial and technical capabilities to carry on the mining operations. The Applicant has detailed its other mining operations, which are considerable. I am satisfied that the requirements of this criterion are met.
Section 269(4)(g) – Has the past performance of the Applicant been satisfactory?
The Applicant’s evidence is that no enforcement action has been taken against it. The Mining Registrar’s Report is consistent with what the Applicant says.
Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences?
The Applicant held EP15771. There is nothing in the material to indicate any disadvantage to any other person.
Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management?
There is no evidence before me to suggest that the proposed operations do not conform with sound land use management.
Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof:
A draft environmental authority was publicly advertised. Although there was an objections lodged, it was withdrawn following negotiations. There is no evidence to suggest that the environmental impacts will not be adequately dealt with by compliance with the conditions of the authority.
Section 269(4)(k) – Will the public right and interest be prejudiced?
There is nothing in the material to indicate any prejudice to the public right and interest.
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 indicated any good reason why this Application should be refused.
Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land?
The materials show that the project is for the extraction of a potentially valuable resource in accordance with the environmental processes. Significantly, all objections have been withdrawn following negotiations between the parties, for which all are to be congratulated. I am satisfied that the proposed mining operation is an appropriate land use.
Recommendation
Taking into account all the evidence before me and, in particular, that evidence referred to above, I recommend to the Honourable the Minister for Employment, Skills and Mining that Mining Lease No. 80166 be granted over the entire application area for the purpose and term sought by the Applicant.
P A SMITH
MEMBER OF THE LAND COURT
0
0
0