GW Kelly v Struber
[2012] QLC 76
•21 December 2012
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
EPA842-12DIVISION: 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
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.
Mr Kelly also lodged an application for an Environmental Authority (Mining Lease) for a Level 2 Mining Project.
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.
Both mining activities and access are proposed upon Palmerville Station.
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.
The application in respect of Mining Lease ML 20630 identifies an area of 26.9419 hectares.
On or about 7 April 2011 the Mining Registrar at Mareeba referred the matter to this Court.
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”.
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.
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 as an Objection to an Application for an Environmental Authority (Mining Lease).
The objection form lodged by the Struber’s ticked both of those small boxes to indicate the objection was intended to be against both the Mining Lease and the Grant of an Environmental Authority for that Mining Lease.
By the time it became apparent that it was a “double barrel” referral, the matter had been set down, and had been the subject of submissions by the Applicant for the lease and the Respondent Objectors but any decision had been reserved to be based upon “the papers”.
Section 268(2) of the Mineral Resources Act gives this Court the power to take such evidence, hear such persons and inform itself in such a manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence.
In the circumstances the Court has come to the view that the interest of all parties would be served by giving the authority administering the Environmental Protection Act an opportunity to make such submissions as it thinks appropriate.
The various oversights were referred to the administering authority by correspondence from this Court dated 8 November 2012.
By correspondence received back from the administering authority on 20 November 2012 the authority advised that it did not propose to make any further submissions and having read the Transcript of proceedings which had taken place in their absence, relied upon the observations of the Court that it had to be assumed that the miner would act lawfully and that the Code of Environmental Compliance was designed to provide adequate environmental protection for code compliant mining activities. Accordingly, it would appear that the only submissions made were those which were heard in Cairns and it is those submissions and the various documents which have become evidence before the Court upon which this decision is based.
The referral to the Court and the objection lodged by the landowners has now been considered in respect of both the application for the Mining Lease and in respect of the objection to the application for an Environmental Authority in respect of each of the Mining Lease ML 20630.
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 season
What 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 1989
2. Mineral Resource Regulations 2003
3. 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?”
Section 269(4) of the MRA
Section 269(4) of the MRA provides that the Land Court in making a recommendation to the Minister that an application for a mining lease shall be granted either in whole or in part, must take into account and consider a number of specified matters.
Each of the matters required to be considered pursuant to s.269(4) of the MRA are discussed below.
Section 269(4) – Whether the provisions of the Act have been complied with.
On 15 February 2011 the Mining Registrar for the Mareeba District issued a Certificate of Application for Mining Lease ML 20630. The effect of s.252 (1) of the Act is that the Mining Registrar can only issue such a Certificate of Application for a Mining Lease upon being satisfied that the Applicant is eligible to apply for the Lease and being satisfied that the Applicant has complied with the requirements of the Act with respect to the Application.
The Struber’s, by an unwitnessed “statutory declaration” dated 28 March 2011, complained to the Mining Registrar that they had not received appropriate public notification from Mr Kelly. They observed that they were not aware of the closing date for making of objections and objected to the public notification process being carried out during “the wet season”, presumably because of difficulties with communications during that period of time.
By letter dated 30 March 2011 the Struber’s were notified by the Mining Registrar that they had been given an additional 14 calendar days in which to lodge a submission in the approved form and accordingly they were required to lodge any objection not later than Monday 11 April 2011.
The objection lodged by them was dated 4 April 2011.
Clearly the Struber’s did receive notification of the application and have had an opportunity to lodge an objection.
There is no suggestion in the Mining Registrar’s Report dated 7 April 2011 that there was any non-compliance.
In all of the circumstances I am satisfied that the Acts Provisions have been complied with.
Section 269(4)(b) – Whether the land applied for is mineralised or the other purposes for which the lease is sought are appropriate?
The subject land is located in the Mareeba Mining District. Palmerville Station has been the subject of a number of applications for Mining Leases, predominantly for alluvial gold.
In his application Mr Kelly asserts that “exploration and prospecting activities have identified gold bearing alluvial sands and gravels of varying grades within the lease area. The lease shape follows the course of an unnamed creek and the area encompasses gold bearing alluvial sediments within this system.
In addition the Court is aware that the subject lease area lies in an area that is regarded as being heavily mineralised for the purpose of recovering alluvial gold.
I am satisfied that the area of the lease is likely to be mineralised and thus that the requirements of s.269(4)(b) have been satisfied.
Section 269(4)(c) – If the land applied for is mineralised, whether there be an acceptable level of development and utilisation for the mineral resources within the area applied for?
The area applied for is 26.9419 hectares. The Applicant proposes to conduct an alluvial mining operation involving the excavation and processing of alluvial sand and gravel from within the river channel and adjacent terraces of the unnamed creek within the leased area.
Alluvial material will be extracted from the areas within the lease with a traced excavator which material will then be transported to a treatment plant by a 10 metre capacity tipper truck over a road system following, wherever possible, the bed of a creek or immediately adjacent banks.
The Respondents did not dispute the nature of the operation proposed to be carried out and their reservations are being exclusively focused on environmental and rehabilitation issues.
I am satisfied that the evidence as a whole establishes that there will be an acceptable level of development, in accordance with that proposed and there will be a utilisation of the mineral resources within the area applied for.
Section 269(4)(d) – Whether the land and the surface area of that land are of an appropriate size and shape?
The application contemplates exploitation of only just in excess of 26 hectares of the land.
It appears[1] that the area delineated has been identified as a potential resource rich area (“A Resource Zone”) and accordingly I am satisfied that the land sought to be utilised and the surface area of that land are of appropriate size and shape.
[1] See Exhibit 2 - Appendix A to the Application for Mining Lease.
Section 269(4)(e) – Whether the term sought is appropriate?
Mr Kelly in his signed Application Form asserts that the Resource Zone within the lease area would provide mining continuity for a period of 15 years including associated environmental rehabilitation works.
He also points out that seasonal restrictions in relation to mining activity within the lease area are subject to restrictions during the “wet season” which generally is thought to run between December and March. Further he refers to water restrictions limiting production towards the end of the dry season.
Accordingly, I am satisfied that the term of 15 years sought by the Applicant is an appropriate term given the relatively small size of the proposed lease area.
Section 269(4)(f) –Whether the Applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?
In the hearing before me there was no real challenge mounted by the Respondents to the financial and technical capability of the Applicant.
In his application, Mr Kelly points to his first hand knowledge of alluvial mining over a period of more than 30 years.
He further points out that he is successful alluvial small miner in the Mareeba Mining District for a period of some years and asserts that he possesses sufficient financial resources to carry out all aspects of mining operations.
By correspondence to this Court dated 18 July 2011 Mr Kelly points out that he has undertaken a $24,000 upgrade of his plant and equipment in anticipation of the grant of the Mining Leases and moreover has spent something of the order of $3,000 in complying with Native Title requirements.
On the evidence before me I am satisfied that Mr Kelly has the financial and technical capabilities to carry on mining operations under the proposed Mining Lease. Moreover there is a complete absence of any evidence to establish that he does not have the necessary financial and technical capability to carry on the proposed mining operations.
I am satisfied that s.269(4)(f) of the MRA has been satisfied.
Section 269(4)(g) – Whether the past performance of the Applicant has been satisfactory?
The Struber’s through Mr Struber protested in Court that they have had bad experiences with other miners in the past.
In my view those bad experiences are not to be visited upon Mr Kelly. He has been mining in the area for a long period of time and no evidence was adduced before me to satisfy me that in any way his performance has been unsatisfactory. For example, there was no evidence of any mining tenements having been terminated because of Mr Kelly’s default. This is a matter which has occurred in other applications for Mining Leases.
Mr Kelly comes before this Court with an apparently unblemished record and I consider that his past performance has been sufficiently satisfactory to warrant recommendation of approval of his Application for a Mining Lease.
Section 269(4)(h) – Whether any disadvantage will result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences?
On the evidence before me there are no holders or applicants for any tenures who would be disadvantaged by the grant.
Moreover in the material lodged by Mr Kelly with the Mining Registrar he included correspondence from Amanda Blazely the holder of Exploration Permit 18113 granting permission to Mr Kelly to peg leases on her permit. He also provided correspondence from Republic Gold Limited dated 30 August 2009 whereby they grant approval for him to peg an alluvial Mining Lease over their EPM 13675.
In all of the circumstances I am satisfied that no disadvantage will result to the holders of any existing Exploration Permits or Mineral Development Licences or any existing Applicants for Exploration Permits or Mineral Development Licences.
Section 269(4)(i) –Whether the operations to be carried on under the authority of the mining lease conform with sound land use management?
The evidence before me in this and other cases involving Palmerville Station establish that the current use of the totality of the land area, apart from some existing Mining Leases, is for low intensity grazing and the land is otherwise capable of being used for mining purposes.
The area alienated to the Mining Lease is a very small fraction of the total land area held by the Respondents and I am satisfied that utilisation of a Mining Lease to extract existing mineralisation conforms with sound land use management. In any event any loss to Mr Struber from his low intensity grazing operation will be incorporated into any compensation agreement or determination.
Section 269(4)(j) – Whether there will be any adverse environmental impacts, caused by those operations and if so, the extent thereof.
This hearing also involved assessment of an objections to an Application for an Environmental Authority.
This is a Level 2 Mining Project[2].
[2] See Environmental Protection Act s.151.
Mr Kelly made application pursuant to s.154 of the EPA for an Environmental Authority (Mining Lease) for a Level 2 Mining Project.
In that application he asserts that he will be able to comply with the Standard Environmental Conditions of the Code and that the proposed operations comply with that Code.
As set out above the Struber’s contend that “the proposed mining method will not comply with the Environmental Authority application sign-off on” (sic).
At the hearing in Cairns Mr Struber appearing on behalf of himself and his wife did not advance that proposition or provide any evidence which satisfied me that his assertion was correct.
The Struber’s also allege “The miner has failed to comply with the various legislation”, but was able to advance no evidence in support of that contention.
Mr Struber in the objection lodged on behalf of himself and his wife also takes issue with a failure by the relevant authority to carry out inspections of Mining Leases and other activities on a regular program on his property in order to enforce the legislation.
That is of course a matter beyond the control of Mr Kelly and the failure of a Statutory Authority (even assuming that such a failure could be demonstrated) ought not be visited upon him as the basis for refusing to grant a Mining Lease or an Environmental Authority.
In the absence of any evidence linking Mr Kelly to any environmental misconduct. I see no basis for finding that his activities are likely to result in any adverse environmental impact so long as they are compliant with the requirements of the Code of Environmental Compliance for Mining Lease Projects.
In coming to this view I have taken into account any potential impact of the proposed mining activity on the owner and occupier of the adjoining land.
As pointed out, the predominant activity on Palmerville Station is low intensity grazing and Mr Struber has not adduced any acceptable evidence to demonstrate any proper basis for concern about adverse environmental impacts.
In my view the objections raised by the Struber’s are entirely speculative and in particular the objections fail to articulate any proper basis for concern about environmental impacts. It is clear that the Struber’s are strongly opposed to mining on their property and that nothing less than constant surveillance and invigilation by the authorities responsible for enforcement of the Environmental Protection Act would satisfy their concerns.
I find that those concerns and expectations are overstated and unreasonable.
To the extent that it may be relevant I am satisfied that the Code of Environmental Compliance – Mining Lease Projects adequately sets out the miner’s obligations and the EPA contains sufficient provisions to enable enforcement proceedings to be taken.
Moreover, nothing in the Act or the Code of Environmental Compliance precludes the Struber’s from making complaint to the relevant authorities and, indeed, providing evidence to the relevant authorities of any misconduct which becomes of concern to them.
It should be noted that the document which became Exhibit 7 which is a collection of documents assembled by Mr Struber and provided to the Court only on the morning of the hearing conducted in Cairns, at page 137 contains a document prepared by Robert Leslie Walker a member of the firm Gilbert and Sutherland a natural resource and rural scientist with that firm, examining what he described in his short report as “the implications of impacts (current and potential) that have resulted from gold mining activities over a site described as ML 20239.”
That is an entirely different site to the one proposed by Mr Kelly and even though the report concludes that there has been an impact on the grazing operations on site and does point to some environmental impacts including: evidence of oil spills, remains of old tyres and chemical drums and the remains of disused batteries being identified in the creek, there is nothing to link those unfortunate outcomes with the operation proposed by Mr Kelly.
Section 269(4)(k) – Whether the public right and interest will be prejudiced?
There is nothing before me to suggest that there is any available evidence (let alone evidence adduced before me) to suggest that the public right and interest would be prejudiced by the proposed grant. Indeed, grant of the lease will permit the timely exploitation of existing mineralisation on the subject property.
Section 269(4)(l) – Whether any good reason has been shown for a refusal to grant the mining lease?
In my view having regard to all of the evidence referred to above and, paying particular regard to the oral submissions made by Mr Struber in Cairns I cannot identify any particular or good reason for not granting a lease over the whole of the application area.
Section 269(4)(m) – Whether the proposed mining operation is an appropriate land use taking into consideration the current and prospective uses of the land?
On the basis my findings in respect of criteria (i), (j), (k) and (l) as set out above I have come to the view that the proposed activity is an appropriate land use taking into consideration the current and prospective uses of the land.
For the reasons which I have set out above, my decision in this matter is to recommend to the Honourable the Minister for Mines and Energy that Mining Lease No. ML 20630 be granted over the application area.
With respect to the objection against the Grant of an Environmental Authority I recommend to the Honourable the Minister administering the Environmental Protection Act 1994 that the application be granted on the basis of the Draft Environmental Authority for the Application without any amendment to the conditions of that Draft Authority.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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