GW Kelly v Struber

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LAND COURT OF QUEENSLAND

CITATION: GW Kelly v Struber & Ors [2012] QLC 76
PARTIES:

Gilbert William Kelly

(Applicant)
v

Stephen Struber and Dianne Wilson-Struber

(Respondents)
And
Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)
FILE NOs: MRA132-11
EPA842-12
DIVISION: Land Court of Queensland
PROCEEDINGS: Hearing of Application for Mining Lease and Objections to its Grant.  Objections to draft Environmental Authority.
DELIVERED ON: 21 December 2012
DELIVERED AT: Brisbane
HEARD AT: Cairns
MEMBER: His Honour Mr WL Cochrane
ORDERS:

1. In respect of file MRA132-11 I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease ML 20630 be granted over the application area.

2. In respect of file EPA842-12 I recommend, pursuant to Environmental Protection Act 1994, to the Honourable the Minister administering the Environmental Protection Act that the Environmental Authority be issued in terms of the draft Environmental Authority issued on 4 September 2009 without amendment.
CATCHWORDS: Mining – Mining Lease – Recommendation – Objections – Mineral Resources Act 1989 ss.238, 252, 269, and 422
Environment – draft Environmental Authority – objections – Environmental Protection Act 1994 – ss.219, 220, 222, 223

Background

  1. On 21 August 2009 Gilbert William Kelly (the Applicant) lodged Mining Lease Application ML 20630 over land in the Mareeba Mining District including land described as Lot 2 on CP910619 the lease of which land is owned by the Respondents Stephen Struber and Dianne Wilson-Struber and is otherwise known as Palmerville Station.

  2. Mr Kelly also lodged an application for an Environmental Authority (Mining Lease) for a Level 2 Mining Project. 

  3. The application seeks a Mining Lease for a period of 15 years for the purpose of pursuing gold, silver, platinum and titanium by means of an alluvial mining operation. 

  4. Both mining activities and access are proposed upon Palmerville Station. 

  5. On or about 4 April 2011 the Respondents lodged an objection to the mining lease and an objection to the application for an Environmental Authority for a Mining Lease in respect of ML 20630.

  6. The application in respect of Mining Lease ML 20630 identifies an area of 26.9419 hectares.

  7. On or about 7 April 2011 the Mining Registrar at Mareeba referred the matter to this Court. 

  8. The referral using Form 5 of the Land Court forms identified the referral as one under the Mineral Resources Act 1989 and specifically “s.265 – Hearing of Application and Objections to Mining Lease. One Objection”.

  9. Unfortunately the referral did not make it clear, as was later detected, that it was in fact in respect of both an objection to the mining lease ML 20630 and an objection to the grant of the draft Environmental Authority.

  10. At a very belated time it became clear that the pro-forma objection form provided for objections to a mining lease and/or for an application for an Environmental Authority (Mining Lease or Mining Claim) had two small boxes which could be crossed to indicate that the objection was against both the application for a tenement (Mining Lease) as well…

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Details
Case
[2012] QLC 76
Decision Date

CaseChat Overview and Summary

GW Kelly contested Struber’s objections to a mining lease and an application for an environmental authority under the Mineral Resources Act 1989 (MRA) and the Environmental Protection Act 1994 (EPA). The Land Court was required to determine whether the objections were valid and, if not, to recommend the approval of the mining lease and the environmental authority to the relevant ministers. The court had to consider the objections in light of the statutory requirements and the evidence presented by both parties.

The court noted that the objections were limited to the grounds specified in the Struber’s submission and could not expand beyond these. The court examined the statutory provisions of the MRA and EPA, which did not permit it to consider matters outside the objections. The court also considered the standard criteria and relevant regulatory requirements under the EPA, as well as the evidence provided by both parties. The court found that the objections did not contain sufficient grounds to prevent the approval of the mining lease and the environmental authority.

Based on its findings, the court recommended to the Minister for Natural Resources and Mines that the mining lease be granted over the specified area and to the Minister administering the EPA that the environmental authority be issued in accordance with the draft authority without any amendments. The court’s reasoning was grounded in the statutory framework and the evidence presented during the hearing.

The final orders were that the mining lease ML 20630 be granted over the application area and that the environmental authority be issued in terms of the draft authority issued on 4 September 2009 without amendment.

Orders

Orders of the court

1. In respect of file MRA132-11 I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease ML 20630 be granted over the application area.

2. In respect of file EPA842-12 I recommend, pursuant to Environmental Protection Act 1994, to the Honourable the Minister administering the Environmental Protection Act that the Environmental Authority be issued in terms of the draft Environmental Authority issued on 4 September 2009 without amendment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 220 of the Environmental Protection Act 1994 (EPA) provides as follows:“220 Objections decision hearing(1) The Land Court may, of its own initiative, make orders or directions it considers appropriate for a hearing for the objections decision (the objections decision hearing).(2) The orders or directions must, as much as practicable, ensure the objections decision hearing happens as closely as possible to hearings under the Mineral Resources Act for each relevant mining tenement.” In the present case the objection to the Mining Lease and the objection to the Application for an Environmental Authority were heard and determined together. Section 222 of the EPA identifies the nature of the decision which I am entitled to make in respect of the Environmental Authority namely that:“…(a) the application be granted on the basis of the draft environmental authority for the application; or(b)the application be granted, but on stated conditions that are different to the conditions in the draft; or(c)the application be refused.” Section 223 of the EPA identifies the matters to be considered for the objections decision and specifically provides that I must consider the following:(a) The application documents for the application.(b) Any relevant regulatory requirement.(c) The standard criteria.(d)To the extent the application relates to mining activities in a wild river area – the wild river declaration for the area.(e)Each current objection.(f)Any suitability report obtained for the application.(g)The status of any application under the Mineral Resources Act for each relevant mining tenement. With respect to my obligation in the context of the objection to the grant of the Mining Lease MRA s.268(3) provides:“(3)The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.” The grounds of objection lodged by the Struber’s are set out below and, in my view, I am restricted to considering only what is contained within those objections. The Acts (MRA and EPA) do not contain any provisions which entitle me to go beyond the ambit of the relevant objections. For the reasons set out below it will become apparent that my recommendation to the EPA Minister is that the application be granted on the basis of the draft Environmental Authority for the application. I should record that I have had an opportunity for an inspection of Palmerville Station in the company of Mr and Mrs Struber and the Mining Registrar for Mareeba. The grounds of objection lodged by the Struber’s were as follows:Describe the grounds of the objection“Not given the opportunity to inspect the App ML 20629 and ML 2063.0 and Access Rd before objection date wet seasonWhat evidence has Mr Kelly got to show compliance on granted mining leases for the past 30 years.The proposed mining method will not comply with the environmental authority application sign off on.”Objection to mining lease or mining claim tenement grant or application or amendment application for environmental authority (mining lease or mining claim)“The Miner has failed to comply with:1. Mineral Resource Act 19892. Mineral Resource Regulations 20033. Environmental Protection Act 1994 and Regulations.The Mareeba Mines Department and Cairns DERM office have failed to inspect mining leases activities on a regular program on the property to enforce their legislation, on previous M.L.”Facts and circumstances relied on in support of the grounds of the objection“The Miners ‘mining Program’ and Environmental Authority Application on ML 20629 and ML 20630 shows the miner is not going to comply with the Acts and Regulations.Require inspection on previous mining leases.To quantify what rehabilitation has been done.Also how the previous mining method compares with the proposed method what environmental impact studies and reports has this miner got on instream alluvial mining?”

Ratio Decidendi

Legal Principle Established

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