Gregcarbil Pty Ltd v Backus (No. 2)
[2013] QLC 46
•25 July 2013
LAND COURT OF QUEENSLAND
CITATION: Gregcarbil Pty Ltd v Backus & Ors (No. 2) [2013] QLC 46 PARTIES: Gregcarbil Pty Ltd
(Mining Lease Applicant)v.
Cameron Backus and Michael Dolf Schmidt
(Objectors)and
Chief Executive, Department of Environment and Resource Management
(Statutory Party)and
Gregcarbil Pty Ltd
(Objector)and
William James Crowther
(Landholder and Objector)FILE NOs: MRA474-10, EPA606-10, EPA225-11, MRA229-11, MRA595-11, EPA596-11, EPA597-11 and MRA894-11 DIVISION: General Division PROCEEDING: Hearing of Applications for Mining Leases and Environmental Authorities and Objections thereto DELIVERED ON: 25 July 2013 DELIVERED AT: Brisbane HEARD ON:
1, 2, 3 August 2011
19 October 2011
28, 29, 30 November 2011
19 April 2012
Matter formally reserved on 26 November 2012HEARD AT: Emerald, Clermont and Brisbane MEMBER: PA Smith ORDERS: 1. I recommend the grant of MLAs 70419 and 70447 to the Honourable the Minister administering the MRA, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML.
2. I recommend to the Honourable the Minister administering the EPA that the draft EAs for MLA 70419 and MLA 70447 be issued, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML.
3. The conditions which are appropriate to recommend for MLA 70419 and/or the EA thereto are those consistent with the observations in paragraphs 144, 171, 174, 208, 209, 225, 237, 259, 273 and 307 hereof.
4. The conditions which are appropriate to recommend for MLA 70447 and the EA thereto are those consistent with my observations in paragraph 161, 171, 174, 183, 206, 209, 225, 237, 259, 273 and 328 hereof.
5. The Statutory Party shall prepare, consistent with orders 3 and 4, fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 6 August 2013.
6. In the event that any party considers that the draft EAs prepared by the Statutory Party are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 13 August 2013.
7. Gregcarbil shall prepare a schedule of Special Conditions for MLA 70419 and MLA 70447 dealing with all remaining conditions which the Statutory Party has not included in the fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 8 August 2013.
8. In the event that any party considers that the Special Conditions prepared by Gregcarbil are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which Special Conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 15 August 2013.
9. In the event that any party provides a Notice to the Court and each party under either orders 6 or 8 hereof, the dispute shall be resolved at a hearing of the Land Court to occur at 10.00am on 20 August 2013.
10. Any party seeking any orders as to costs of the substantive hearing of the applications for MLA 70419 and MLA 70447 and their respective EAs, and objections thereto, are to file and serve their submissions by 4.00pm on 9 August 2013.
11. Any response submissions on costs are to be filed and served by 4.00pm on 16 August 2013.
12. Any reply submissions on costs may be filed and served by 4.00pm on 19 August 2013.
13. Any application for costs of the substantive hearing shall be heard by the Land Court at 10.00am on 20 August 2013.
14. As regards the determination of compensation for MLA 70419 and MLA 70447, should either party wish to have further evidence presented to the Court in light of this decision, such party is to provide a Notice to the other party, and to the Court, detailing the nature of the further evidence to be adduced and the likely time requirements for such evidence by 4.00pm on 16 August 2013.
15. The determination of compensation with respect to MLA 70419 and MLA 70447 is otherwise set down for review and directions at not before 10.00am on 20 August 2013 for the purpose of timetabling the receipt of further evidence (if necessary) and submissions.
CATCHWORDS: MINING – application for mining lease – defect in application – defect in form, not substance – objector not prejudiced by defect – application held valid
PRACTICE AND PROCEDURE – role of Land Court in mining lease application – to make recommendation to responsible Ministers (with conditions if appropriate) – assume proposed mining operations will be conducted lawfully
MINING – objections to mining lease and environmental authority – competing objects of governing Acts – Mineral Resources Act 1989 to facilitate mining – Environmental Protection Act 1994 to protect State’s environment – need to balance
PRACTICE AND PROCEDURE – current related proceeding in Planning and Environment Court – concerned with remediation of previous lease held by third party – case not a consideration in subject case
MINING – mining lease – application of precautionary principle in framing recommendation to Minister – relevant to environmental sensitivity of proximity of mining operations to Endangered Regional Ecosystem (ERE)
EVIDENCE – insufficient material in application – additional material supplied on a piecemeal basis throughout hearing – practice criticised – adds to hearing complexity
WORDS AND PHRASES – meaning of “dam” – meaning of “pit void” – reference to Macquarie Dictionary and technical dictionary
EVIDENCE – view – purpose of view – to allow visual representation to assist understanding of evidence – evidence not there physically taken unless special circumstances
EVIDENCE – affidavit evidence of expert – not present for cross-examination – use of such untested evidence – relevance of Land Court provision on evidence (s.7) – if admitted, a question of weight
MINING – mining lease – considerations in grant recommendation – Mineral Resources Act 1989 s.284(4)(c) – economic mineralisation – requirement for “economic viability” – condition satisfied
Environmental Protection Act 1994
Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 No. 16
Environmental Protection Regulation 2008
Mineral Resources Act 1989
Mineral Resources Regulation 2003Butterworth’s Environmental Management and Law Dictionary 1997
Two Volume, Federation Edition of the Macquarie DictionaryArmstrong & Anor v Brown & Anor [2004] QCA 80
De Lacey & Anor v Kagara Pty Ltd (2009) 30 QLCR 57
Donovan v Struber & Ors (2011) 32 QLCR 226
Elliott v Hicks & Hicks (2001) QLRT 38
Gregcarbil Pty Ltd v Backus & Ors [2011] 32 QLCR 211
New Oakleigh Coal Pty Ltd v Hardy & Ors [2003] QLRT 24
Scott v Valuer-General [2012] QLC 5APPEARANCES: Mr AC Barlow of Counsel instructed by Paul Watts & Co, Solicitors, for Gregcarbil Pty Ltd
Mr N Loos of Counsel and Ms L Hoult, Legal Officer, for the Statutory Party
Mr C Backus representing himself and Mr M Schmidt
Mr R Peters of Anne Murray and Co, Solicitors, for Mr W Crowther
Table of Contents
Background......................................................................................................................................... 7
The Hearing........................................................................................................................................ 8
Executive Summary Submissions..................................................................................................... 9
References to EPA Objection process............................................................................................ 13
Status of Mr Crowther as EPA Party............................................................................................. 14
Determination of Compensation for MLA 70419 and MLA 70447............................................. 15
Overview of MLA 70419 and the EA thereto................................................................................ 16
Overview of MLA 70447 and the EA thereto................................................................................ 20
Planning and Environment Court proceedings............................................................................. 23
Assessment of the credit of witnesses.............................................................................................. 23
Gilbert Kelso Fletcher.............................................................................................................. 24
Cameron Peter Backus............................................................................................................. 25
Carolyn Joy Graham................................................................................................................ 27
Gregory William Graham......................................................................................................... 29
Christopher John Loveday....................................................................................................... 30
William James Crowther.......................................................................................................... 30
The objections by Mr Backus and Mr Schmidt............................................................................. 31
The objections by Mr Crowther...................................................................................................... 42
The objections by Gregcarbil.......................................................................................................... 49
The objects of the EPA..................................................................................................................... 51
The precautionary principle............................................................................................................ 53
Gregcarbil’s EA application material for both MLAs.................................................................. 54
Area of disturbance under each EA............................................................................................... 55
Conditions regarding dam location and construction.................................................................. 60
EA conditions regarding topsoil and overburden height............................................................. 63
Campsite proposal for MLA 70447................................................................................................. 65
Tracks on both MLAs...................................................................................................................... 68
Water issues...................................................................................................................................... 71
MRA s.269(4) Considerations for MLA 70419.............................................................................. 76
MRA s.269(4) Considerations for MLA 70447.............................................................................. 82
Conclusions....................................................................................................................................... 85
Orders................................................................................................................................................ 86
Background
The Court currently has before it eight matters each directly relating to, or interlinked with, one of two Mining Lease Applications (“MLAs”). A number of the features of these files are unique, having never been considered, as I understand it, by a Queensland Court before.
At the core are two MLAs, both made by Gregcarbil Pty Ltd (“Gregcarbil”). The first is MLA 70419 and the second is MLA 70447. MLA 70447 has also been referred to throughout the proceedings as “the old Australis lease”. Both MLA 70419 and MLA 70447 are located on a property known as Nardoo North, currently owned by William James Crowther (“Mr Crowther”) and formerly owned by Michael Dolf Schmidt (“Mr Schmidt”). Access to the MLAs are obtained partly through Nardoo, owned by Cameron Backus (“Mr Backus”) and Louisa Backus.
The various matters can be summarised this way: Gregcarbil applied for MLA 70419 and for an Environmental Authority (“EA”) for that mining operation. Mr Schmidt and Mr Backus lodged formal objections to both the MLA and the EA, pursuant to the Mineral Resources Act 1989 (“MRA”) and Environmental Protection Act 1994 (“EPA”) respectively. The Chief Executive, Department of Environment and Resource Management became the Statutory Party to the EPA objections. Gregcarbil was not satisfied with some of the conditions in the draft EA, so it also lodged formal objections under the EPA to the EA. Thus, in a technical sense, Gregcarbil is both an applicant for, and objector to, the EA. Mr Crowther, by Order of the Court, pursuant to the EPA, was then made a party to the EA objection matters relating to MLA 70419.[1]
[1] See Gregcarbil v Backus & Ors [2011] 32 QLCR 211.
As regards MLA 70447, Gregcarbil again applied for the MLA and EA. Mr Crowther lodged formal objections to both the MLA and EA. Again, Gregcarbil lodged objections to the EA. The Statutory Party is again a party to the EA objections. Neither Mr Schmidt nor Mr Backus made any objections with respect to MLA 70447 or its EA.
With respect to both MLA 70419 and MLA 70447, the issue of compensation under the MRA payable by Gregcarbil to Mr Crowther is also the subject of consideration.
The eight files currently before the Court are described below:
As regards MLA 70419
· MRA474-10
Application by Gregcarbil and objections by Mr Schmidt and Mr Backus
· EPA606-10
Objections by Mr Schmidt and Mr Backus to Gregcarbil’s application for EA Mr Crowther is a party
Statutory Party is a party· EPA225-11
Objections by Gregcarbil to EA
Mr Crowther is a party
Statutory Party is a party· MRA229-11
Determination of MRA compensation payable by Gregcarbil to Mr Crowther
As regards MLA 70447
· MRA595-11
Application by Gregcarbil and objections by Mr Crowther
· EPA596-11
Objection by Mr Crowther to Gregcarbil’s application for EA
Statutory Party is a party· EPA597-11
Objection by Gregcarbil to EA
Statutory Party is a party· MRA894-11
Determination of MRA compensation payable by Gregcarbil to Mr Crowther
The Hearing
The hearing of these matters commenced on 1 August 2011 with a comprehensive inspection of both MLA areas. On various dates over the next four months, the hearing continued in Emerald and Clermont, with oral submissions heard in Brisbane on 19 April 2012 and submissions finally closed on 26 November 2012. It should be pointed out that each party and their representatives concluded the bulk of their submission on 19 April 2012. Thereafter, Gregcarbil provided a further affidavit to the Court relating to certain matters. Further, the parties were given the opportunity to comment on a Land Appeal Court decision which they may have considered relevant. Due to some confusion in communication, the wrong Land Appeal Court decision was provided to the parties, resulting in further delay. Regrettably, the time period post 19 April 2012 also coincided with my lengthy absence from the Court on long leave, followed by major health issues including a cancer scare.
Orders were made that all matters be heard together. In that regard, this decision relates to six of the eight matters. The final two matters, which are those relating to the determination of compensation for each MLA, will be determined subsequent to this decision.[2]
[2] See Transcript 1 December 2011 page 3 lines 1-40.
Throughout the hearing, Gregcarbil was represented by Mr Barlow of Counsel, instructed by Paul Watts and Co, Solicitors; Mr Loos of Counsel, with legal officer Ms Hoult, represented the Statutory Party; Mr Crowther was represented by Mr Peters, a solicitor with Anne Murray and Co and Mr Backus represented himself and Mr Schmidt, who is his father-in-law.
Oral evidence was given during the hearing by the following:
· Gilbert Kelso Fletcher, an expert environmental consultant, called by Gregcarbil
· Cameron Peter Backus
· Carolyn Joy Graham, a director of Gregcarbil
· Gregory William Graham, mine manager for Gregcarbil
· Christopher John Loveday, an expert environmental scientist, called by the Statutory Party
· William James Crowther
· Patrick John Lyons, an expert registered valuer, called by Gregcarbil
· Murray John Davis, an expert registered valuer and agricultural economist, called by Mr Crowther
Executive Summary Submissions
Due to the complexity of the various matters and the length of the submissions, all parties were requested to provide the Court with executive summaries of their submissions.
Mr Barlow provided the following summary of the position of Gregcarbil:
“1. Only contentious matters will be dealt with - on matters associated with grant of the application leases Gregcarbil, and using the terminology used in the substantive submissions, relies on its submissions in respect of the MRA.
MRA - Objections
Mr Backus - MLA70419
2. Mr Backus’ objections should be dismisses for the following reasons:
(a) Objection 1: the error complained is not attributable to Gregcarbil - the Certificate is prepared by the Mining Registrar;
(b) Objection 2: there is no evidence before the Court to support the objection - and Mr Backus’ credibility suffers due to his failure to explain Gregcarbil’s explanation in Mr Graham’s first affidavit;
(c) Objection 3: there is no evidence to support the objection;
(d) Objection 4: there is no evidence to support the objection;
(e) Objection 5: there is no evidence to suggest Gregcarbil has misused prospecting permits, and, on the most favourable case for Mr Backus, it is not threatening to be told to ‘listen’.
Mr Schmidt - MLA 70419
3. Mr Schmidt’s objections should be dismissed for the following reasons:
(a) As a matter of law this Court cannot assume that rehabilitation won’t be done properly.
Mr Crowther - MLA 70447
4. Mr Crowther’s objections are adequately answered because Gregcarbil will rehabilitate the areas it uses, as a condition of EA70447.
5. Each aspect will be dealt with, as necessary, in these submissions - but the question of Mr Crowther’s rights as a ‘party’ to matters numbered EPA 606-10 and EPA 225-11 will be dealt with, in these preliminary submissions, simply because Mr Crowther’s status and rights as a ‘party’ to those matters will impact upon the submissions made. It is best, therefore, to determine Mr Crowther’s rights as a ‘party’ before submissions are made in respect of substantive matters.
EPA - Submissions
Objections and DERM’s conditions
6. EA70419 and EA70447 should issue on the terms and conditions sought by Gregcarbil, and all objections should be dismissed, for the following reasons:
(a) Gregcarbil’s extraordinary mining program, which includes a comprehensive bunding system, when mining on the floodplains, and provision for high-ground mining provides an almost absolute protection to the ERE, and the grazier’s concerns; and
(b) Gregcarbil has answered all other aspects of the Statutory parties concerns, and the other parties’ concerns during the trial of this matter.”
On behalf of the Statutory Party, Mr Loos summarised its position as follows:
“3. In essence, the Statutory Party’s position is summarised as follows:
The Applicant has not, either in the applications made to the Statutory Party, or in evidence put before the Court, adequately demonstrated that the mining operations that it proposes will not occasion environmental harm. In that circumstance, adopting a precautionary approach, the Statutory Party submits that Draft Environmental Authorities containing conservative conditions should be the subject of the Court’s recommendation to the Minister.
4. At the opening, the submissions detail the legislative framework under the Environmental Protection Act 1994 that is relevant to the making of the objections decision in this matter.
5. The submissions then proceed to outline the competing positions of the Applicant and the Statutory Party.
6. Essentially, the issues remaining in dispute are broadly categorised into four, namely, area of disturbance, dam siting and construction, topsoil and overburden height and other conditions.
7. The Statutory Party’s position with respect to these four issues, as detailed in the submissions, can be summarised as follows:
a. The permissible area of disturbance for MLA70419 should be limited to six hectares within one kilometer of the endangered regional ecosystem, which is supported by the evidence of Mr Loveday and the application of the precautionary principle;
b. The conditions attaching to MLA70419 and MLA70447 regarding dam siting and construction should be maintained, on the basis that:
i. The term ‘dam’, properly construed, does not include a mining pit and the Applicant’s objection in respect of this condition is misplaced; and
ii. No dam should not be constructed below RL226, to mitigate the risk of any environmental harm;
c. The conditions limiting topsoil stockpiles and overburden height to two metres should be maintained in both MLA70419 and MLA70417, having regard to the information supplied by the Applicant;
d. Other conditions concerning campsites, tracks and areas of historical disturbance should remain.
8. The submissions briefly address the objections of the Respondents. Given that the subject matter of the issues raised by the Respondents overlaps with the Applicant’s objections, the Statutory Party largely relies on its position as advanced in response to the Applicant’s objections.
9. The Statutory Party also provides comment on the Applicant’s evidence regarding the availability of water. Ultimately, it is suggested that if the Court accepts that the evidence with respect to the availability of water is not satisfactory, then this may have some import for the consideration of the objections under the Mineral Resources Act 1989.”
Mr Peters provided the following summary for Mr Crowther:
“1. The respondent, William James Crowther identified in his submissions twelve (12) ‘issues of concern’.
2. The respondent has endeavoured to be as brief as possible in making his written submissions - hence, this summary is limited to identifying those passages of the written submissions which correlate to the different areas of concern.
3. Table of Issues of Concern:
Issue No. Issue Submission 1. Area of distance (EA allows 6ha at any one time for ML 70419 and 9.75ha at any one time for ML 70447] The evidence of the applicant suggests greater disturbance is intended if rich gem bearing deposits are found - pgs 7 & 8 of submissions.
2. Use of the terms ‘at any one time’ and ‘minimum annual/yearly disturbance rate’ The evidence of whether the applicant intended to disturb a minimum of 6ha per annum or maximum of 6ha per annum was uncertain and confusing - pgs 8 & 9 of submissions.
3. Accuracy of instructions given to Valuer at Lyons for assessment of compensation Pgs 9-11 of submissions [As this relates to the compensation issue it is probably preferable to deal with this issue when evidence on that subject has been completed].
4. Disregard for regulations and EA conditions Late notice by applicant of intention to build caretaker’s residence; complete devolution/abrogation of responsibility for compliance with EA conditions by applicant to Mr Fletcher - pgs 11 - 13 of submissions.
5. Extension of lease term beyond five (5) years Pg 13 of submissions [This may be more relevant to the issue of compensation].
6. Rate of disturbance and revegetation and effect on land’s carrying capacity Pgs 13 - 15 [This may be more relevant to the issue of compensation].
7. Compromise of the Kubota bore There was little or no evidence adduced by the applicant as to how its mining operations may affect the bore - a crucial water supply relied upon by the landowner - pgs 15 - 19 of submissions.
8. Provision of water for mining operations There was a paucity of evidence by the applicant as to how water for its mining operations would be sourced. The claim by the applicant that water could be obtained from using a water licence applicable to other land cannot be considered viable or correct - pgs 20 - 21 of submissions.
9. Revegetation with natural grasses The landowner contends that natural grasses will not regenerate as fast as species such as buffel and this will lead to a reduced carrying capacity of the land - pgs 22 - 24 of submissions.
10. Ongoing costs of improvements for landowner
Pgs 24 - 25 of submission
11. Assurance for landowner’s right of recess Whilst the applicant says it will give an undertaking to the Court to permit the landowner access to unused portions of the lease, the Court has correctly pointed to the tension in this position and the law as currently enacted - pgs 25 - 27 of submissions.
12. Management issues - fencing, week control, etc Pgs 27 - 33 of submissions. ”
The positions of Mr Backus and Mr Schmidt were summarised by Mr Backus in the following way:
“5. Conclusion
In light of these inconsistencies in evidence, it would be appropriate to attribute no weight to any evidence given by Mr and Mrs Graham.
The fact that Gregcarbil corrupted the mediation process by submitting misleading, off the record, without prejudice statements in the form of an affidavit to the Planning and Environment court, should weigh heavily, and is the reason why the mediation process was halted.
The parcel of land that GREGCARBIL has outlined in their application for a mining lease lies in the flood affected areas of Policeman Creek. It can be seen that past mining in this same area done by AUSTRALIS has and continues to cause enormous environmental damage to this catchment. Every time Policeman Creek floods more subsoil from their mining operations is washed down stream affecting more and more of our property and the Fitzroy Catchment.
No rehabilitation has been done by AUSTRALIS, and opening more ground in this flood affected area will only compound an already disastrous environmental problem. Due to its location between Policeman and Retreat Creek, it is inaccessible for a large portion of the year, making the control of erosion and weeds caused by disturbing the ground, very difficult.
To resolve this matter, I would like to see no more mining done in this flood affected area. Evidence shows that it should not have been allowed in the past and with the benefit of hindsight, would be grossly negligent to allow it in the future.
Gregcarbil’s MLA’s over this area are standing in the way of the Planning and Environment Court ordering the rehabilitation of the AUSTRALIS disturbance by its directors. This has been dragging on for more than six years and the pending P & E court order is the best outcome for getting this category B environmentally sensitive area returned to a non-polluting state.
Gregcarbil’s MLA’s and Environmental Authorities appear to have been deliberately misleading, do not treat this environmentally sensitive area with the respect it deserves, and for these reasons should not be granted.”
References to EPA Objection process
It is pertinent to note at the outset that the EPA has undergone significant amendment subsequent to the hearing of these matters, and that those amendments directly relate to the objection process under the EPA. The significant amendments commenced on 31 March 2013.[3] For the purposes of this decision, s.683 of the EPA (as currently enacted) provides that the previous provisions of the EPA, under former Chapter 5, apply to these matters. Accordingly, the provisions which relevantly commenced on 31 March 2013 are to be ignored. All further references in this decision to the EPA will be to those provisions from the former Chapter 5 of the EPA.
[3] See Environmental Protection (Greentape Reduction) and Other Legislation Amendment Act 2012 No. 16.
Status of Mr Crowther as EPA Party
As discussed earlier, pursuant to the provisions of the EPA, Mr Crowther was made a party to the proceedings relating to the environmental objections under the EPA to MLA 70419. I understand that this is the first instance that any person has been made a party under these provisions.
Mr Barlow for Gregcarbil has quite rightly raised the issue of what evidence is able to be received by the Court in light of Mr Crowther’s status. I must emphasise that these comments relate to the EA for MRA 70419 only and not to the MRA or EA applications with respect to MLA 70447, to which Mr Crowther has duly lodged objections.
Mr Barlow said in his environmental submission that:
“7. Accordingly, and given the legislative provisions in respect of the nature of the objections hearing (Section 222 EP Act), and the matters to be considered by this Court to determine the objections decision (Section 223 EP Act), then it must be the case that Mr Crowther:
(a)As a party to these proceedings, has the rights to be heard in respect of any ‘current objection’, but only in so far as each ‘current objection’ is relevant to Mr Crowther as landowner; (Because that is the basis on which Mr Crowther was made a party to these proceedings. See Gregcarbil Pty Ltd v Backus & Ors [2011] QLC 0042 at [8][17], [18] and [22]);
(b)Cannot, through the tender of evidence, or otherwise be heard in respect of a matter that is not the subject of a ‘current objection’; and
(c)If all current objections are withdraw or resolved Mr Crowther ceases to be a party to these proceedings because if there are no current objections before the objections decision is made, the Land Court’s jurisdiction ceases.
8. Gregcarbil submits that Mr Crowther, therefore, has the same rights as any other party to these proceedings, but those rights must be limited, as the other parties’ rights are, to the proceedings before the Court, as determined by the ‘current objection’.
9. For example, Mr Crowther may not raise a ground of objection, or be heard on any matter other than the matters properly before the Court pursuant to s219(2) EP Act, or required to be considered by the Court pursuant to s223 EP Act - simply because in the same legislative framework that allowed Mr Crowther to become a party, does not afford him, or the Court, the power to make him an objector in these proceedings.
10. In these circumstances, objection is maintained to all evidence filed and served by Mr Crowther (or Mr Peters, on Mr Crowther’s behalf) and questions asked by Mr Crowther, or his representative, Mr Peters, that is not directly relevant to an issue that the Court is required to consider pursuant to s223 EP Act, on the grounds that as a ‘party’ to the matters numbered EPA 606-10 and EPA 225-11 on the grounds that Mr Crowther does not have the capacity, as a party, to be heard in respect of matters not already before the Court.”
Mr Loos, in his written submissions at paragraph 83, noted that:
“… it appears that the EP Act sets no limit on the role that a ‘party’ is permitted to play, once added by the Court. It would be a serious matter to read a restriction into an Act, that does not appear from its own provisions: Metroplex Management Pty Ltd v Brisbane City Council. No such restriction should be read in.”
It is true, as contended by Mr Barlow, that Mr Crowther obtained the status of a party to the EPA proceedings with respect to MLA 70419 due to the unusual circumstances of his becoming owner of the land subject to the MLA after the objection period closed. However, I agree with Mr Loos that, once he is a party to the proceedings, his rights should not be restricted. However, that does not mean that the ambit of the hearing of EPA objections for MLA 70419 has increased.
The jurisdiction of the Land Court for the hearing of the EPA objections to MLA 70419 has not increased in any way because of Mr Crowther becoming a party. The Court cannot hear matters outside of its jurisdiction. The evidence that the Court receives is limited to such evidence as is relevant to that on which the Court has jurisdiction. Accordingly, insofar as there is any live issue before the Court with respect to the objections to the EA for MLA 70419, Mr Crowther may produce evidence and give submissions with respect thereto. However, Mr Crowther may not lead evidence or make submissions with respect to any matter which is beyond the scope of the EPA hearing relative to MLA 70419.
Insofar as any evidence or submissions exceed the scope of the EPA hearing for MLA 70419, such evidence and submissions will be disregarded. However, for the reasons discussed below, any evidence and submissions from Mr Crowther which may be discarded with respect to the EPA objections hearing for MLA 70419 may nevertheless be relevant to the Court, and properly before the Court, as regards the determination of compensation for MLA 70419 and MLA 70447.
Determination of Compensation for MLA 70419 and MLA 70447
All evidence which is relevantly before the Court for the determination of compensation payable by Gregcarbil to Mr Crowther under the MRA with respect to MLA 70419 and MLA 70447 remains before the Court for that purpose, even if such evidence is inadmissible in the other proceedings before the Court.
To make matters as clear as possible, and consistent with the approach I took during the hearing as set out earlier in these reasons, I will make no further reference in this decision to any evidence adduced at the hearing which relates solely to the issue of the determination of compensation for the MLAs.
The determination of compensation for MLA 70419 and MLA 70447 will be undertaken in accordance with a timetable to be determined following the delivery of this decision, which is limited to the MLA and EPA objections.
Overview of MLA 70419 and the EA thereto
As indicated earlier in this decision, MLA 70419 is located on the property now known as Nardoo North in the Sapphire Gemfields area, approximately 5 km north-east of Sapphire, west of Emerald in Central Queensland. The information contained in the paragraphs below has been collated from Exhibits 1 and 4.
Gregcarbil applied for MLA 70419 on 30 November 2009. The MLA has an area of 318.8771 ha and is known as Policeman’s Run. Gregcarbil intends mining MLA 70419 for sapphire, zircon, gold and diamond. Mining is sought for a term of five years. As can be seen from the plan set out below, MLA 70419 is of a regular rectangular shape on the eastern, western and southern sides and half of the northern side, whilst the balance of the boundary is somewhat irregular. The northern boundary abuts what has been referred to as the old Australis lease, and it is because it follows the old Australis boundary that it is of this irregular shape. It can also be noted from viewing the plan that there are a significant number of mining lease areas located to the west of the application area, as well as a large mining lease to the north. The plan referred to, provided by the Mining Registrar, Emerald, is set out below:
The MLA is located within Restricted Area 1 pursuant to the Mineral Resources Regulation 2003. Access to the MLA is gained via Lots 95 and 96 on SP 227975 and via a property known as Subera. Lot 96 is the property known as Nardoo North owned by Mr Crowther, whilst Lot 95 is known as Nardoo and is owned by Mr and Mrs Backus.
Draft Environmental Authority No. MIN 200988409 (referred to as the EA for ML 70419) was issued on 19 January 2010. The EA is for a Non-Code Compliant Level 2 mining project.
A significant feature of MLA 70419 is that 120 ha of its area is over land which has been mapped as endangered regional ecosystem (“ERE”).[4] The existence of the ERE is a key factor in the EA being classified as Non-Code Compliant Level 2. The ERE is clearly marked on a plan provided to the Court and the parties by the Statutory Party. The map is set out below. The ERE is overlaid in green over the MLA 70419 application area.
[4] See Submissions of the Statutory Party, paragraph 6.
Gregcarbil is a relatively small family mining company. Mrs Graham, who is the sole director of Gregcarbil, has been in the mining industry in the Central Queensland Gemfields for a period of 40 years. Her husband, Mr Graham, has 40 years mining experience on the Gemfields whilst their son, Billy-Joe Graham, has nine years Gemfield mining experience.
Overview of MLA 70447 and the EA thereto
The key information in the paragraphs that follow has been taken from the report from the Mining Registrar, Emerald, to the Land Court which is Exhibit 4A in these proceedings.
MLA 70447 was applied for by Gregcarbil on 7 March 2011. It contains an area of 175.0037 ha, and is sought for a period of five years. The MLA has been named Policeman’s Run North and is entirely over what is known as the old Australis lease.
The area of the lease is detailed on the ERE map set out in paragraph 31 above. In simple terms, MLA 70447 has regular boundaries to the north, east, west and half of the south, followed by a mostly irregular boundary for the balance of the area. In effect, it neatly fits into MLA 70419 to the south like a meeting of two jigsaw pieces. When MLAs 70419 and 70447 are combined in this way, what emerges is a regular, rectangular shape.
MLA 70447 is sought by Gregcarbil for the processing and mining of sapphire, gold, diamond and zircon.
Access to MLA 70447 is the same as MLA 70419, save that the access continues from the south-west corner of MLA 70419 to the south-west corner of MLA 70447. As can be seen by reference to the ERE map already referred to, the access along the south-west boundary of MLA 70419 transverses directly through the ERE. In this regard, it is noted that this part of the access falling on MLA 70419 is located east of the boundary fence for Nardoo North and as such an existing fenceline track is proposed to be used. This is of particular importance when reference is made to the EA for MLA 70447, and in particular to conditions F 21-27.
Draft Environmental Authority MIN 202498111 (referred to as the EA for ML 70447) was issued subject to conditions on 5 September 2011. The EA is for a Non-Code Compliant Level 2 mining project.
The fact that MLA 70447 is over the old Australis lease area is particularly significant. One aspect of the evidence in this matter in which there was no dispute by any of the parties was the fact that the old Australis lease area is in a terrible condition, and has been for many years. Australis was forced to immediately cease operations under its mining lease as it had exceeded the area of disturbance allowed under its environmental authority. Proceedings commenced by the Statutory Party in the Planning and Environment Court against the Australis lease owners and operators remain outstanding.
It was clear to me from the evidence of the landholder objectors in this matter that there remains significant anger against both the mining community and the environmental regulators as a result of the failings to the land which have been occasioned as a consequence of the Australis lease.
What is also apparent is that Gregcarbil wishes to take advantage of the mining activities commenced by Australis on the old lease area, and is also prepared to undertake preliminary rehabilitation of some of the damage to the land occasioned by previous mining activities. In this regard, specific reference should be made to the following statement from the MLA application by Gregcarbil:[5]
“Commitment by Gregcarbil Pty Ltd
Gregcarbil Pty Ltd respectively suggests that this disturbance is as a result of both poor mining practise and inadequate departmental supervision of the mining activities. Gregcarbil will only assume responsibility for this disturbance if the rehabilitation of this poor mining practise can be rehabilitated as part of their proposed mining process and is not reflected in a greatly increased Financial Assurance. If an unrealistic FA is required Gregcarbil will not continue with the ML application over this area.Given a realistic FA is set to cover rehabilitation of Gregcarbil disturbance, Gregcarbil will undertake to reduce the disturbance to under the 10 ha limit before commencing mining operations. The attached figure indicates the areas (cross hatched) that will be rehabilitated to achieve this disturbance limit. The extent of cross hatched areas, other than the trench, is approximate and will possibly change when ground condition is assessed on grant of the lease.
The two out of pit dumps [dump2 and dump 3] will not be rehabilitated until the mining path proposed by Gregcarbil is close to the dumps to allow the dumps to be dozed into the opencut as it progresses past each dump.”
[5] Exhibit 4A page 25.
What is proposed by Gregcarbil becomes clearer when reference is made to the sketch plan set out below, which also formed part of Gregcarbil’s application material for MLA 70447:
Planning and Environment Court proceedings
For completeness, it is noted[6] that there is currently before the Planning and Environment Court proceeding no. 3765 of 2009 which is an action commenced by the Statutory Party which relates to the former Australis lease.
[6] See paragraphs 99 to 101 of the Statutory Party’s submissions.
The action commenced by the Statutory Party is made pursuant to s.505 of the EPA. There are 11 respondents to the action. The Statutory Party is seeking orders for rehabilitation works and for security for performance with respect to the old Australis site.
Although the point has been made in these proceedings that Counsel for Gregcarbil is also Counsel for two of the respondents in the Planning and Environment Court proceedings, they being Australis Mining Operations Qld Pty Ltd and Anthony Damianos, nothing turns on this point. Mr Barlow for Gregcarbil has acted with complete proprietary before this Court at all times with respect to the proceedings in the Land Court.
As advised to this Court, the Planning and Environment Court proceeding is awaiting a decision of this Court on the matters currently before it. I have not been informed of the reasons why the Planning and Environment Court proceedings have been placed on hold in this manner. In many ways, the application for MLA 70447 would have proceeded with greater certainty had the proceedings in the Planning and Environment Court been concluded, thus meaning that all parties to the Land Court proceedings would have been aware of the rehabilitation works, if any, that would have occurred on the old Australis lease. Likewise, I expect that the Planning and Environment Court will be informed by this decision. In many respects, what both Courts are left with is a “chicken and egg” scenario.
As the Planning and Environment Court proceedings have not been concluded, and it is entirely unknown to this Court what orders requiring rehabilitation, if any, may be made in the future by the Planning and Environment Court, the Land Court proceedings are being dealt with as if the Planning and Environment Court proceedings did not exist, and accordingly that the state of the land as it currently exists on the old Australis lease area will be how the land remains.
Assessment of the credit of witnesses
In assessing the credit of the witnesses at the hearing, I have taken into account all of their oral evidence, their formal statements and affidavits provided to the Court, and the submissions made by the various parties regarding such evidence. What follows below is a summary only of my conclusions with respect to the credit of each witness having taken all such material into account. For completeness, I should add that my initial assessment of each witness was undertaken and recorded at the conclusion of each witness providing evidence to the Court. My initial views as to the credit worthiness of various witnesses was then reviewed after the receipt of oral and written submissions by the parties. I make these observations formally on the record so that the parties can be assured that my assessment of the witnesses has not been impacted by the passage of time.
I will deal with each witness in the order in which they were called to give evidence before the Court.
Gilbert Kelso Fletcher
Mr Fletcher was called to give evidence on behalf of Gregcarbil. Mr Fletcher’s evidence is important, as he is not only an expert witness whose duty it is to assist the Court within the fields of his expertise; he is also the person that Gregcarbil has delegated the day to day responsibilities of ensuring that the environmental activities for the mining operations under both MLA 70419 and MLA 70447 are conducted correctly, on the assumption that such MLAs and EAs thereto are granted.
Mr Fletcher has a Bachelor of Applied Science in Rural Technology, and is an environmental consultant.
Mr Fletcher advised the Court during his oral evidence that he has been working solely as an environmental consultant with the mining industry since 1974.[7] Mr Fletcher described his role as an environmental consultant to the mining industry this way:
“… Preparing plans of operations, taking part in environmental impact statements, organising environmental impact statements and on-site reclamation, supervising reclamation, peer reviewing reclamation and including diversions and water structures and so forth.”
[7] See Transcript 2 August 2011, pages 11-12.
Mr Fletcher’s evidence before the Court was very extensive. He was in the witness box for four days overall; firstly on 2 and 3 August 2011, followed by further evidence on 29 and 30 November 2011.
Insofar as it necessary, I will deal with specific elements of Mr Fletcher’s evidence as they relate to specific topics under consideration later in this decision. The same will apply with respect to the assessment of each of the witnesses. For current purposes, all that I am undertaking is an assessment of their credit.
Mr Fletcher appeared to be a witness of high honesty and integrity. He demonstrated a broad, deep knowledge of many and varied elements relating to environmental conditioning of mining leases pursuant to the EPA.
Mr Fletcher did not hide from the truth as he saw it. He stated his views clearly and directly. When situations arose where he was unsure or did not know the answer to a question, he readily said so. He showed an open and appropriate willingness to be corrected. In short, he impressed me greatly as a witness, both as an expert witness before the Court, and as a person who will be employed by Gregcarbil, should the mining leases be granted, to ensure that environmental conditions are fully complied with.
Cameron Peter Backus
Mr Backus had the difficult job of representing and giving evidence in support of both himself and his father-in-law, Mr Schmidt, in the proceedings.
Mr Backus and his wife, are the owners of Nardoo, through which access is required to reach both MLAs. It must of course be remembered that Mr Backus’ farther-in-law, Mr Schmidt, was the owner of Nardoo North and Nardoo at the time when prospecting permits (“PPs”) were taken out by Gregcarbil over what was then Nardoo (incorporating the now Nardoo and Nardoo North properties). It is clear that Mr Backus assisted his father-in-law greatly with respect to mining issues on the larger Nardoo property prior to his taking over ownership of the smaller Nardoo. In this regard, I note in particular Mr Backus’ evidence regarding the negative health affects that the failed Australis mining venture on Mr Schmidt’s property had on Mr Schmidt, and I accept that it was to prevent further health impacts on Mr Schmidt that Mr Backus represented Mr Schmidt throughout the proceedings.
As a person without any formal legal qualifications, Mr Backus is to be congratulated for the manner in which he conducted the cases of both his own objections and those of Mr Schmidt. During cross-examination, in particular by Mr Barlow of Counsel on behalf of Gregcarbil, his credit was severely tested at times. Indeed, he was shown to be in error in referring in his affidavit material to diary notes which he had made which he clarified under oath in the witness box had in fact been made by his wife. It is my view that Mr Backus did not set out in any way to intentionally mislead the Court in this regard and his explanation as to the circumstances in which his wife made diary entries on his behalf is accepted by this Court.
The reason that Mr Backus and Mr Schmidt chose to lodge objections against MLA 70419 and its EA, and that Mr Backus participated so fully in the hearing, clearly, in my view, comes back to the impact that the failed Australis operations had on both of them. The position of both Mr Backus and Mr Schmidt is best summed up by the following extract from Mr Backus’ oral evidence:[8]
“… Mr Schmidt's and our objections to the mining lease and the environmental authority are quite heavily based upon what we experienced during Australis's operation on the property and - and, so, where - where we felt that that all fell down, we - we really - you know, where it was quite clearly where they went outside of their bounds and - and - and - and - and - and did things that - that we really weren't happy with, such as clearing tracks without authorisation, entering the creeks without authorisation, so - so we really based our objections on those grounds, and, in - in - in saying that, we - we - we're - we're - we're - our - our objections are really - are - are - are based upon what we don't want to happen again, what we've - what - what we had experienced and - and what we certainly, by - by having a - you know, instead of - instead of trying to stop something from happening once it's happened, if we can put - put some - put some processes in place by objecting and - by objecting to their authority and - and to objecting to their mining lease application, it would give us - it would give us an opportunity to have input into - into the bounds that they - that they have to abide by, whereas with - with the Australis operation we were really left just to watch it all unfold and no matter how much we contacted the environmental authority, it didn't seem to have any effect on - on - on what was going on out there, so we - we - we - at the time of their application we thought we really need to get in and - and - and - and object to this so that we at least have a say in - in - in - in what they can and can't do on our land and - and that's pretty much the basis of - of our objections was - was by seeing what had happened with Australis and - and - and what we could try and prevent, you know, with the benefit of hindsight, try and prevent from happening again …
… Our - our main concerns with this operation taking place is - is not that - is not that we're totally against mining. We - if - if - if it's done correctly, if it's done in a way that won't harm us economically and - and - and - and also go outside our general ethos of - of environmental care, then - then we - we certainly don't object to anything like that. If - if - if Australis had - had continued to mine how they did on that first pit and if - if - you know, we - we wouldn't have - we wouldn't have any concerns because it was done, you know, to - to - to a practice that, you know, wasn't - wasn’t that far outside of what we expected but as soon as they went down into that flooded zone and, you know, put a trench in from the tailing's dam, that was - it goes completely against everything that we thought was going to happen. We certainly didn't think that they were allowed to be mining down there and we certainly didn't think that you could push tailings from a tailings dump down there, so that was - you know, really - it really caught us by surprise and - and - and - and it's - you know, that mining down in that flooded zone we would - you know, that - that is the crux of our objection is - is damage to the environment that - that we have left and - and we're trying to protect. That ERE has been protected on - on other properties and - and - and we're certainly trying to do that on - on ours …”
[8] See Transcript 3 August 2011, lines 20-52 page 51 and lines 11-35 page 52.
There is certainly conflict in the evidence as provided by Mr Backus and Mr and Mrs Graham as to the nature of interactions that occurred between those parties, particularly early on in the application process for the MLAs. Mr Backus put it in these words:[9]
“So things became heated between Gregcarbil and myself …”
[9] See Transcript 3 August 2011, page 49, lines 57-58.
Mr Backus is to be commended for admitting under oath that not only in his view did the talk of the representatives of Gregcarbil become heated, but that his own actions became heated. Insofar as it is relevant to the outcome of these proceedings, I am prepared to accept, in general terms, the evidence of Mr Backus as to his dealings with Mr and Mrs Graham. I find that there were heated discussions on both sides at the time of the PPs being taken out over Nardoo and the pegging of the first MLA in particular, but that the negotiations between the parties improved dramatically, as Mr Backus put it, after arrangements were put in place for communications to be put in writing between both of them and for the Mining Registrar at Emerald to be included in correspondence.
I found Mr Backus to be an open, honest reliable witness who, although shown to be in error on occasion, freely admitted his errors when same were pointed out to him under cross-examination.
Carolyn Joy Graham
In footnote 13 to the Statutory Party’s submissions, Mr Loos of Counsel made the following observation regarding Mrs Graham:
“To decide the appeals about the Draft Environment Authorities, the Court need not make any determination about Mrs Graham’s conduct when in completing the application materials for MLA70447 she stated that that application was code compliant, even after the application for MLA70419 had had to be remade because of the proximity of the site to ERE. It is not suggested that Mrs Graham’s actions sought to mislead. They could simply have been the result of extraordinary carelessness. See T3-44 - 30-60”
I concur with the comments made by Mr Loos. In many ways, those comments sum up the difficulty in assessing the evidence of Mrs Graham.
Mrs Graham is the sole director of Gregcarbil. Gregcarbil is in real terms a family company operated on a day to day basis by Mr and Mrs Graham and their son Billy-Joe. Out of this family relationship, it is clear that Mr Graham and Billy-Joe Graham are the experienced “hands-on” miners, whilst Mrs Graham undertakes all of the paperwork for Gregcarbil, including all paperwork required for the lodging of MRA and EPA applications.
Given Mrs Graham’s important role in doing Gregcarbil’s paperwork, it is somewhat surprising that there are in existence three different versions of the actual application document for MLA 70419. These different versions are as follows:
·Version 1 (attachment CJG 7 to Exhibit 22) with the answers to 3.5 and the first part of 15.1 both blank;
·Version 2 (attachment CJG 1 to Exhibit 22 and part of Exhibit 4) with the answers to 3.5 left blank and the first part of 15.1 partially completed; and
·Version 3 (part of Exhibit 1) with the answer to 3.5 completed and first part of 15.1 partly completed.
Mrs Graham has provided good evidence to this Court as to why version 1 came into existence. It is clear that the provision of version 1 to Mr Schmidt was a direct factor in at least one of the objections being made in the way that it was. However, there is no explanation by Mrs Graham or anyone else on Gregcarbil’s behalf to explain the differences between version 2 and version 3 of the application for MLA 70419. Unfortunately, matters such as this appear throughout Mrs Graham’s evidence.
It would be easy to be critical, or perhaps highly critical, of Mrs Graham’s evidence, but I do not believe that that would be an appropriate course to take in this matter, for much the same reasons as those set out by Mr Loos in his footnote referred to above.
By her evidence, Mrs Graham has been responsible for the completion of somewhere between 10 and 20 mining lease application over the last 30 years.[10] Mrs Graham then went on to describe her knowledge and ability in completing the various application forms during cross-examination by Mr Loos as follows:[11]
[10] See Transcript 28 November 2011, page 38, lines 22-28.
[11] See Transcript 28 November 2011, page 39, lines 7-40.
“Okay. And so you’d be quite familiar with the Environmental Protection Act?-- I wouldn’t say “familiar” it’s a very difficult Act to understand.
Okay. But the sections of the Act that relate to mining, you’d be familiar with those? Not perhaps the whole thing, let’s just focus on the section of the Act that deal with mining?-- Yes.
Okay. And you’d know that there’s an Environmental Protection Regulation as well?-- Yes.
And you’d be familiar with the parts of that that relate to mining?-- Not really.
Okay. But you do the paperwork for-----?-- that is correct.
Okay. You’d be familiar with the Code of Environmental Compliance-----?-- Yes.
-----for mining lease projects?-- Yep, because it’s on the - on the back of every mining lease application given.
Sure. And you would understand that that’s a Code for the purpose of - it can be traced back to the Act?-- Yes.
How familiar would you say that you are with the Code?-- Bush lawyers. Not very familiar. I’d have to look at it and understand every section.
Okay?-- If it was relevant to any part of our mining.
So do you read it, or reread it, before you put in every new mining lease application?-- Yes.”
Put simply, having considered all of the evidence in this matter, in my view Mrs Graham could best be described as a person without any formal qualifications doing the best that she can do to complete the rather complex paperwork that must be completed when an entity is desirous of seeking an MLA and an EA. At best, Mrs Graham is required to complete such applications once in every year and a half; at worst, Mrs Graham may only have completed such applications once in every three years. Given her obviously limited knowledge of the MRA and the EPA, the difficulties that she has experienced in making the applications are understandable. In particular, given that the EA in this matter was of necessity non-code compliant because of the existence of the ERE, Mrs Graham was taken somewhat out of the depth that a relatively small miner, as Gregcarbil is, would usually experience.
I was concerned throughout Mrs Graham’s evidence that she was trying as hard as she could to give answers to questions that would assist Gregcarbil. Her attempts to say the right thing, as it were, for Gregcarbil detracted from the key task that she had at hand while in the witness box, which was to answer every question openly, honestly and truthfully, even if those answers were to the detriment of Gregcarbil. Despite this criticism, the majority of Mrs Graham’s evidence is not disputed and is reliable. However, in circumstances where there are direct inconsistencies between the evidence of Mrs Graham and other evidence presented to the Court, either in oral or documentary form, then I prefer that other evidence.
Before concluding my assessment of Mrs Graham, I should add that I have no doubt that her view of the proceedings generally, and of the Statutory Party in particular, has been impacted to a significant degree by the original insistence by the Statutory Party to reduce the area of land able to be disturbed at any one time within MLA 70419 to only 0.5 ha. I completely understand Mrs Graham’s disillusionment in this regard, as on the evidence placed before me by Mr and Mrs Graham and Mr Fletcher, which I do accept, it would be impossible to conduct their mining operation with an area of disturbance of only 0.5 ha.
Gregory William Graham
Mr Graham has been mining in the Central Queensland Gemfields since 1968. Like his wife’s evidence, Mr Graham’s evidence was not without difficulty. He was clearly incorrect when he gave his evidence as to the entitlement he believed he had to take water pursuant to a Water Licence from the miners’ common. To his credit, he corrected that evidence during re-examination. I was also far from convinced with his evidence regarding ownership of a pipeline that travels from the miners’ common to the MLA application areas. I also reject Mr Graham’s evidence that he did not use any threatening language whatsoever against Mr Backus. However, it is also my view that the language used by Mr Graham towards Mr Backus was not overly meant by Mr Graham in the way in which it was received by Mr Backus.
Those matters aside, I found the rest of Mr Graham’s evidence quite understandable and believable. He clearly understands mining in the Gemfields and is quite proficient at it. His answers were clear and confident whenever dealing with aspects of gemstone mining with which he is familiar. However, when evidence turned to more complex issues of environmental conditions or legal rights, matters then went somewhat beyond him.
As was the case with Mrs Graham, it is my view that Mr Graham’s attitude towards the Statutory Party in particular in these proceedings was adversely affected by the proposed environmental restriction to limit areas of disturbance on ML 70419 to a mere 0.5 ha. I accept that Mr Graham, as a very experienced miner on the Gemfields, would be bewildered by such a restrictive condition.
As was the case with Mrs Graham, I accept the evidence of Mr Graham generally. In particular, I accept Mr Graham’s evidence as to his practises in mining in the Gemfields. Insofar as Mr Graham’s evidence is inconsistent with the evidence of other witnesses, for the reasons outlined above, I prefer the evidence of those other witnesses or indeed documentary evidence where that is in conflict with the evidence of Mr Graham.
Christopher John Loveday
Orders
1. I recommend the grant of MLAs 70419 and 70447 to the Honourable the Minister administering the MRA, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML.
2. I recommend to the Honourable the Minister administering the EPA that the draft EAs for MLA 70419 and MLA 70447 be issued, provided that conditions consistent with those set out in this decision are included in each ML and/or the EA for each ML.
3. The conditions which are appropriate to recommend for MLA 70419 and/or the EA thereto are those consistent with the observations in paragraphs 144, 171, 174, 208, 209, 225, 237, 259, 273 and 307 hereof.
4. The conditions which are appropriate to recommend for MLA 70447 and the EA thereto are those consistent with my observations in paragraph 161, 171, 174, 183, 206, 209, 225, 237, 259, 273 and 328 hereof.
5. The Statutory Party shall prepare, consistent with orders 3 and 4, fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 6 August 2013.
6. In the event that any party considers that the draft EAs prepared by the Statutory Party are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 13 August 2013.
7. Gregcarbil shall prepare a schedule of Special Conditions for MLA 70419 and MLA 70447 dealing with all remaining conditions which the Statutory Party has not included in the fresh draft EAs for MLA 70419 and MLA 70447 and provide same to each party and to the Court by 4.00pm on 8 August 2013.
8. In the event that any party considers that the Special Conditions prepared by Gregcarbil are not consistent with these reasons, such party is to provide to each other party, and to the Court, a Notice specifying which Special Conditions they believe are not consistent with these reasons, and alternate wording thereof, by 4.00pm on 15 August 2013.
9. In the event that any party provides a Notice to the Court and each party under either orders 6 or 8 hereof, the dispute shall be resolved at a hearing of the Land Court to occur at 10.00am on 20 August 2013.
10. Any party seeking any orders as to costs of the substantive hearing of the applications for MLA 70419 and MLA 70447 and their respective EAs, and objections thereto, are to file and serve their submissions by 4.00pm on 9 August 2013.
11. Any response submissions on costs are to be filed and served by 4.00pm on 16 August 2013.
12. Any reply submissions on costs may be filed and served by 4.00pm on 19 August 2013.
13. Any application for costs of the substantive hearing shall be heard by the Land Court at 10.00am on 20 August 2013.
14. As regards the determination of compensation for MLA 70419 and MLA 70447, should either party wish to have further evidence presented to the Court in light of this decision, such party is to provide a Notice to the other party, and to the Court, detailing the nature of the further evidence to be adduced and the likely time requirements for such evidence by 4.00pm on 16 August 2013.
15. The determination of compensation with respect to MLA 70419 and MLA 70447 is otherwise set down for review and directions at not before 10.00am on 20 August 2013 for the purpose of timetabling the receipt of further evidence (if necessary) and submissions.
P A SMITH
MEMBER OF THE LAND COURT
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