Jax Coal Pty Ltd v Garry Reed and Mackay Conservation Group and Whitsunday Regional Council and Chief Executive, Department of Environment and Heritage Protection
[2013] QLC 39
•4 July 2013
LAND COURT OF QUEENSLAND
CITATION: Jax Coal Pty Ltd v Garry Reed and Mackay Conservation Group and Whitsunday Regional Council and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 39 PARTIES: Jax Coal Pty Ltd
(applicant)
v
Garry Reed
(first respondent)and
Mackay Conservation Group
(second respondent)
andWhitsunday Regional Council
(third respondent)and
Chief Executive, Department of Environment and Heritage Protection
(statutory party)FILE NOS: MRA726-11 and EPA727-11 DIVISION: General Division PROCEEDING: A hearing for Application for Mining Lease and Objections to its Grant.
Objections to draft Environmental Authority.
DELIVERED ON: 4 July 2013 DELIVERED AT: Brisbane HEARD AT: Townsville MEMBER:: His Honour, Mr WL Cochrane ORDER: 1. I recommend to the Honourable the Minister for Natural Resources and Mines pursuant to the Mineral Resources Act 1989 (Qld), that Mining Lease 10346 be granted over the application area.
2. I recommend to the Honourable the Minister for Environment and Heritage Protection, pursuant to the Environmental Protection Act 1994, that the draft Environmental Authority issued on 12 September 2011 be issued with amendment namely that Condition No. W42 be amended so that the proposed monitoring locations are described as MB01, MB02, MB03, MB04, BR782W, BR752W, JXWB01 and DK092W as set out at page 23 of the Geoaxiom Groundwater Report Appendix 5 to the Draft Environmental Management Plan.
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
These are now matters to be dealt with on the papers.
On 12 November 2009 Jax Coal Pty Ltd (“Jax”) lodged an application for a mining lease (MLA 10346) over Crown leasehold land described as Lot 618 on PH 2106 Parish of Birralee/Macedon County of Drake. The property is conveniently referred to as “Birralee” and is a pastoral lease held by Gordon Wallace MacNicol as a lessee from the State. The subject property is used as a grazing property as part of the business conducted by Mr MacNicol’s son, Andrew William MacNicol. Both MacNicol’s objected to the application.
Simultaneously to the making of the application for a mining lease Jax had also applied to the Department of Environment, as it was then known, for an environmental authority.
QCoal Pty Ltd is the holder of an exploration permit for coal 586 (“EPC 586”) which underlies part of the area of application for mining lease 10346.
By correspondence dated 24 November 2009 QCoal wrote to the Minister for Mines and Energy, Department of Employment, Economic Development and Innovation advising as follows:
“For the purposes of the Mineral Resources Act 1989 including without limitation section 248, QCoal consents to the application for ML 10346 by Jax Coal over part of the area MDL 392 shown in the attached plan and to the Minister recommending the grant of ML 10346.”
The MacNicol’s also objected to the application for a draft environmental authority.
At the time the applications were made by Jax, Duyfken Explorations Pty Ltd were the applicants for an exploration permit for minerals other than coal over land which was contained within the proposed mining lease MLA 10346. On 18 October 2011 Duyfken lodged an objection to the application for a mining lease.
It is not necessary to further consider the objections raised by either the MacNicol’s or Duyfken Explorations Pty Ltd as each of those parties have now withdrawn from the proceeding and no longer make any objection either to the grant of the mining lease or to the issuing of a draft environmental authority.
Duyfken filed its notice of withdrawal on 14 February 2012.
There were however other objectors.
Mr Garry Read lodged his objection on 25 October 2011.
Mr Read objected to both the application for a mining lease and the application for an environmental authority.
It is appropriate to recite in their entirety the grounds of objection and the facts and circumstances relied upon by Mr Read in making his objection. So far as grounds are concerned, his notice of objection said as follows:
“The Application for Mining Lease and Environmental Authority date from 11.11.09.
There is no update on any changes to conditions. The reputation of Qcoal has deteriorated markedly since Sonoma Coal Mine proposed diverting Coral Creek which was originally promised to be protected by a 200m buffer zone and ended up as 30m through amendment to the EA.
Also the DERM issued a PIN 000555 dated 24.9.10 for Sonoma Coal Management, operators of Sonoma Coal Mine where the CHPP is located and Qcoal is the parent company of, was not mentioned in the application. Also Sonoma Mine is upwind of the prevailing winds for Collinsville which now has dust problems.
In the Environmental Plan 14.4 Rehabilitation strategies p59 it states: (The estimated final void water level for the pit is based on average rainfall and evaporation data and does not incorporate any climate variability). What about climate change? (It does however, provide an indication that the void will not overtop or interact. It is expected however, that the concentration of salts in the final void will be increased by evaporation which will result in brackish to saline water quality developing over time).
It is incredible that it would be proposed in this age in a developed country to leave a void that would concentrate salts indefinitely. There is no mention of the heavy metals that could also contaminate the water and anything drinking it. It is also hard to believe that there is no potential for leakage into aquifers and the nearby Creeks and the Bowen River as stated in the plan.”
The facts and circumstances relied upon by Mr Reed were said to be as follows:
“The nature of this proposal shows bad faith towards this community and future generations.
The price of coal has never been higher but the quality of the land suitability assessment standards are going down at a time when we are told that our state is on the cusp of a mining boom.
It is hard to determine from the material and maps supplied how close this mine will come to the Bowen River. As this part of the river is important for the Collinsville Community for recreation any impediment to access would be detrimental.
It is also critically important to be confident how close this mine will come to the Bowen River and the Creeks on the site as this area is subject to extremes of drought and flood. Also there has recently been seismic activity relatively close to this site which indicates it could be subject to significant geological disturbance.”
On or about 19 October 2011 the Whitsunday Regional Council also lodged an objection against both the application for a mining lease and the application for an environmental authority.
The grounds of appeal raised by the Whitsunday Regional Council are as follows:
“Whitsunday Regional Council has various concerns regarding the development and operation of the proposed Jax Coal Mine located 12km south from Collinsville.
The removal of ROM coal from the mine is proposed to be transported along the Bowen Development Road for 6km in a northerly direction to the Sonoma Mine site. This road will require major redevelopment to accommodate the number and frequency of haul vehicles. The council is concerned for the safety of other road users and the hazard increase posed by the increase of heavy vehicles.
Though the increase of employment for Collinsville is considered positive, Council has concerns with the facilities and infrastructure in the town to cope with the increase in population. Infrastructure such as water supply and sewerage, community facilities such as hospital and medical facilities, schools and allied services are limited. Council seeks further information from Jax Coal regarding the proposed accommodation arrangements for the workforce for the mine and how the company will contribute to the services on which it will place additional demand.
Surface water flow from the proposed project area flows into an ephemeral gully which flows into the Bowen River. Jack Creek is located immediately to the east of the project area. The water quality monitoring locations and parameters appear inadequate for a project that will have runoff and releases into significant waterways. More specific information regarding qualities of water likely to be released from the mine, the timing of such events and remedial actions to be taken post event are requested. The contaminant release limits outlined in the EA for electrical conductivity (5970µS/m³) and pH (6.5-9.0) are considered extremely high. These limits are the uppermost for stock watering for cattle. These levels would have a devastating impact on the natural ecosystems present in the receiving waters. It would be more appropriate for the limits to comply with the ANZECC (2000) guidelines for slight-moderately disturbed conditions (i.e. 250µS/m³, pH6.6-7.9). The contaminant release characteristics do not include nutrient loads such as total nitrogen and phosphorus. Limits for these should also be set to comply with ANZECC (2000) guidelines. The EA outlined that contaminated water may be piped or trucked from site to supply a third party for watering of stock, construction purposes or to a nearby mine. There are concerns regarding the quality parameters of this water, how it will be monitored and where it may be used and/or released off site.
The EA outlines that sewerage and waste will be removed by contractors. If the said contractor requires disposal of the waste to a Council facility prior notification will be required regarding quantity and frequency of disposal.
Council requests further details regarding the rehabilitation of the project are post mining. The EA does not include adequate specific outcomes regarding post mining use of the land. It is requested that a final void study is completed within 6 years of the issue date of the ML. This must include exact specifications, dimensions and locations of the voids to be left, the geotechnical stability analysis and the management techniques and strategies that will be used to manage the voids for rehabilitation. The size of the voids to be left is of concern to council regarding the safety of the property owners, stock, visitors and the environmental management of the site. The loss of approximately 30ha of grazing land is considerable. Council suggests that the remaining viable grazing land is rehabilitated to a higher standard to compensate for this loss. Use of native pasture species and vegetation is requested.”
The facts and circumstances relied upon by the Whitsunday Regional Council in mounting its objection are as follows:
“Council has been provided with scientific documentation, advice and anecdotal evidence regarding mine site construction, operation, best practise and rehabilitation.
Previous incidents with contaminated water releases from QCoal mine site Sonoma have alerted the council to how quickly ecosystems in receiving waters can be affected by such events.
Whitsunday Regional Council is required to preserve the needs of the local community and provide services in the Collinsville region. Council request the EA is conditioned as such to determine ecological and sustainable development best practices are adhered to in order to minimise harm to the local environment and community.”
It might at this stage be observed that the objection filed by the Whitsunday Regional Council is something of a pre-emptory strike in so far as they express some concerns about various issues but seek further information and request that the environmental authority address the issues raised by them.
It should be noted, that with respect to the “scientific documentation, advice and anecdotal evidence regarding mine site construction, operation, best practice and rehabilitation” the Whitsunday Regional Council, at no time, sought to provide the Court with that material. Accordingly, it is axiomatic that the Council has failed to provide any evidence to the Court to support its objections.
On 19 October 2011 Patricia Julien on behalf of the Mackay Conservation Group lodged an objection to the proposal.
The objection lodged by the Mackay Conservation Group identified the following grounds of objection:
“Objection is to grant and EA on following grounds:
Prior PINs for Sonoma Mine and Jax is essentially and extension of Sonoma in terms of geography and environmental impacts. By keeping it as a smaller mine cumulative impacts are not addressed.
Coal dust impacts and no monitoring of 2.5 microns or less. Mine upwind of Collinsville & Scottville.
Mapped as Category B as an endangered biodiversity regional ecosystems. Not noted in application. Insufficient biodiversity monitoring. Impacts not sufficiently addressed.
Cumulative impacts of QCoal’s adjacent Jax, Sonoma and proposed Drake Mines on nationally listed wetland 12km downstream not mentioned. Levees would destroy riparian vegetation and potential ephemeral wetlands used by near-threatened cotton pygmy goose for nesting in WetPatches of good quality agricu Season. Presence of threatened yakka sking in riparian vegetation?
Three main creeks not two as stated in the application within the mining lease area.
Patches of good quality agricultural land in ML. Disposal of highly saline water pumped from coal seams?
Voids should be filled. Longterm risk to groundwater, children and wildlife. How are permanent surface impacts on landowner (huge federal government investment in cell grazing and fencing off cattle from river) been weighed against the value to the state of the small amount of coal to be mined?
Haul road will run 24/7. How will nuisance impacts and risks to community be addressed. Who pays for construction and maintenance?
EIS needed as information in this application is either missing or too little to judge the environmental and community impacts.”
The facts and circumstances relied upon for the making of the objection by the Mackay Conservation Group are simply identified as “see above and also in submission sent earlier”.
The “submission sent earlier” was undated but appears to have been sent on or about 19 October 2011.
The contents of that earlier submission are too lengthy to recite in their entirety and it suffices to summarise the facts and circumstances relied upon by the Mackay Conservation Group as follows:
a) The Jax Coal proposal is criticised as being merely an extension of the Sonoma Coal Mine adjacent to the “Birralee” property.
b) There is a query as to the cumulative and long term impacts on water and air quality and community and environmental health.
c) There is concern expressed as to the impacts upon bio-diversity across the mining site.
d) There is concern expressed about the quality of rehabilitation and the capacity to restore plant species associated with the current ecosystems.
e) There is concern about the impact on the Bowen River: Birralee – Pelican Creek aggregation of Wetlands.
f) There is concern about surface and ground water runoff to the Bowen River and its likely impact upon the Birralee Wetland.
g) There are concerns about the loss of good quality agriculture land in the mining lease application areas.
h) There is concern about coal dust and the potential for that to become windborne to nearby communities in particular Collinsville and Scottville.
i) There is concern about the loss of pastoral productivity and the likely impact upon the cattle grazing development established at great expense by the MacNicol family.
j) Concern is expressed about the location of a hall road and the potential for noise and coal dust pollution.
k) There is criticism of the EIS which accompanied the application.
As with the Whitsunday Regional Council at no time did Ms Julien on behalf of the Mackay Conservation Group seek to provide to the Court any material which substantiated either the objections or which the provided evidence of those facts which were alleged in its submission of 19 October 2011.
Note should also be taken of the language used in the objection lodged by Ms Julien in so far as it contains a lot of assertions about “there is concern” without seeking to clarify or amplify the basis for those concerns.
Each of the remaining respondents Reed, Mackay Conservation Group and Whitsunday Regional Council informed the Court that, pursuant to the provisions of Practice Direction 7 of 2009 they proposed to participate in the appeal as Level 1 Objectors.
Level 1 Objectors proposed to rely upon their Notice of Objection only and not attend the hearing. That is to say they adduce no further evidence and do not choose to make submissions at the end of the hearing.
Such an election to participate as a Level 1 Objector brings with it some difficulties for those parties who choose to do so.
In the first place they elect not to call any further evidence. That often presents difficulties because, necessarily, what is set out in the Notice of Objection is often in short form and not properly supported by proper evidence.
Secondly, such an election abandons the prospect of cross-examining witnesses called by either the statutory party or the applicant for the mining lease or for the environmental authority. Accordingly, Level 1 Objectors deny themselves the opportunity for some forensic investigation of the evidence adduced against them.
In the third place it deprives the Court of any opportunity to hear forensic cross-examination of their evidence and so the Court is left with, effectively, a series of bald assertions against the application.
In the fourth place, it denies the Objectors an opportunity, having considered what other evidence was placed before the Court in the course of a hearing, an opportunity to make submissions about such evidence has been placed before the Court.
Those disabilities are not so profound in the case of an application for a mining lease where subtle issues of environmental impact and the need for appropriate protocols to ensure protection of sometimes very subtle aspects of the environment are concerned, in my view, a failure to participate often renders earlier and very thoughtful objections somewhat sterile.
I well understand that for various reasons including a lack of familiarity with Court proceedings and financial constraints on a capacity to properly present a case are relevant considerations. It is an unfortunate and, in my view, inevitable outcome that the force of the objections made by objectors who elect to become Level 1 participants are somewhat diminished for the reasons set out in the paragraphs above.
It is also a reality that a prudent applicant will, in framing the evidence to be adduced before the Court will consider what is contained invalidly made objections and respond to those objections an absence of cross-examination and challenge to those responsible creates a situation where in the absence of other evidence (for example from the relative statutory authority) that evidence becomes the only evidence that the Court has before it and accordingly is highly persuasive.
Because this decision is in respect of both objections against the grant of the mining lease and objections against the terms of the draft Environmental Authority both the Mineral Resources Act 1989 (Queensland) (“MRA”) and the Environmental Protection Act 1994 (Queensland) (“EPA”) are called up.
Section 268 of the MRA is the relevant section endowing jurisdiction upon this Court to hear the objections against the application and to make a recommendation to the relevant Minister.
As the applicant has pointed out in its written submissions provided to the Court on 8 March 2013 this Court does not have jurisdiction to hear evidence or consider any ground of objection unless it was part of the objection which had been duly lodged pursuant to the provisions of s 260 of the MRA.
The recommendation which must be made to the Minister in respect of the application for a mining lease can take one of three forms. Namely, rejection, a grant in full or a grant in part.
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. Section 269 of the MRA requires the Court either to recommend that the application be granted or rejected in whole or rejected in part.
Section 220 of the Environmental Protection Act 1994 (EPA)[1] 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.”
[1]Throughout this decision reference is made to the EPA Reprint 11 effective 5 April 2012 in effect at the beginning of the hearing of this matter. Since then the Act has been amended on many occasions and the relevant sections now appear in EPA Chapter 5, Part 5, Sub-division 3 Sections 184-192.
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 s 268(3) of the MRA 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 Acts (MRA and EPA) do not contain any provisions which entitle me to go beyond the ambit of the relevant objections.
Because of the requirement in s.269(4)(i) and (j) it seems appropriate to consider the objections to the grant of the Environmental Authority prior to descending to consider the objections to the mining lease per se.
The evidence shows that on 4 December 2009 the Department of Environment and Resource Management (“DERM”) issued a notice of EIS decision advising that an environmental impact statement was not required.[2]
[2] Affidavit of Christopher Ian Wallin paragraph 52 Exhibit CIW16.
Mr Wallin in his affidavit sets out fairly succinctly the contentions of the applicant miner with respect to environmental issues.
“53.The Applicant has developed a comprehensive Environmental Management Plan following extensive consultation with government agencies. Through this process, the Applicant has addressed all potential environmental impacts and methods of managing any such impacts. The Environmental Management Plan lodged with the Mining Lease Application on 12 November 2009 appears as Appendix 10 to the Mining Lease Application.
54.An amended Environmental Management Plan was prepared by the Applicant and lodged with the Department of Environment and Resource Management on 8 July 2011.
55.On 12 September 2011 the Department of Environment and Resource Management issued Draft Environmental Authority Permit No MIN100943909. Exhibited to this Affidavit and marked “CIW17” is a copy of the Draft Environmental Authority.
56.I believe that there will be no significant adverse environmental impacts which will be caused by the proposed operations such as to warrant an unfavourable recommendation for the grant of Mining Lease 10346. The Environmental Authority and Plan of Operations (once issued) will cover all environmental matters and impacts expected to occur in relation to the mine, and the mining operations will need to be managed in accordance with these approvals. The Applicant will:
(a)comply with all statutory requirements, compensation agreements, commitments and conditions in the Environmental Authority and any legal directive from relevant government departments or authorities; and
(b)obtain licences from the Department of Environment and Resource Management prior to construction of any structures requiring licences under the Water Act 2000 (if not already covered by the Environmental Authority).
57.Disturbance of land, which will occur during the life of the mine because of the operations that will be conducted thereon, will be managed as part of the rehabilitation requirements of Mining Lease 10346.
58.The Applicant is committed to the rehabilitation of all disturbed areas in accordance with the Environmental Authority.”
At the hearing so far as evidence between the relevant remaining parties is concerned the miner Jax Pty Ltd tendered a copy of an Environmental Management Plan dated July 2011 prepared for QCoal Pty Ltd.[3]
[3] Exhibit 5.
It is appropriate to identify the ambit of that Environmental Management Plan and the breadth of the provisions of that Plan.
The contents of the Plan covered, interalia, the following areas of environmental concern:
(a) Waste Rock;
(b) Air Quality Noise and Vibrations;
(c) Surface Water;
(d) Soils;
(e) Ground Water;
(f) Flora and Fauna;
(g) Waste Management;
(h) Erosion and Sediment Control;
(i) Waste Management Assessment Plan;
(j) Post Activity Land Use;
(k) Weed Management;
(l) Top Soil Management;
(m) Waste Rock Management.
The draft of the Environmental Management Plan also included a copy of the proposed Environmental Authority.[4]
[4] Exhibit 5, Appendix 14.
On 8 July 2011 Jax Coal submitted an amended Environmental Management Plan pursuant to s.204 of the EPA.[5]
[5] Exhibit 5, Appendix 14.
The relevant department DERM (as it then was) issued an Environmental Management Plan Assessment Report on 22 August 2011.[6]
[6] Affidavit of Christopher Ian Wallin paragraph 73 and Exhibit CIW17.
That Environmental Management Plan Assessment Report found that the Plan (as amended in July 2011) complied with the requirements of the EPA and accordingly on 12 September 2011 issued a draft Environmental Authority Permit No. MIN100943909. (“The Draft EPA”).
There is no issue taken with the proposition that Jax Coal gave and published an application notice in accordance with the Public Notice Requirements of the EPA and gave a statutory declaration declaring its compliance with those requirements on 21 October 2011.[7]
[7] Affidavit of Christopher Ian Wallin paragraph 75 and Exhibit CIW21.
It remains then to consider those matters set out in the EPA s 223.
So far as s 223(a) which deals with the application documents it is appropriate to identify that the application made by Jax in November 2009 in addition to the formal application proforma document contained a number of annexures including:
(a) Supporting Statements from Jax Coal;
(b) An A3 map of the proposed mining lease area;
(c) An initial development plan of the Coal Seam Gas Statement;
(d) Documents evidencing the proponent company’s registration;
(e) Financial capability statement;
(f) The curriculum vitae of key project personnel;
(g) Background search tenure report;
(h) An environmental protection agency “application for an Environmental Authority (Mining) for Level 1 Mining Project; and
(i) Draft Environmental Management Plan.
The relevant regulatory requirements are those matters set out in the MRA and the EPA including any subordinate legislation.
The standard criteria referred to in s 223(c) of the EPA are identified and defined in Schedule 4 to the EPA. (s 223(c))
The subject site is not in a wild river area. (s 223 (d))
The current objections are those identified above. (s 223(e))
There was no suggestion that a suitability report pursuant to Part 4 Division 3 of the EPA was either contemplated or required and accordingly that is not a matter to which I need have regard. (s 223(f))
When this matter involved dispute Jax Coal Pty Ltd the MacNicol family interests as well as the remaining objectors hearings were conducted in Townsville in March 2012. With respect to environmental matters relevant evidence was called from Mr Hayden Leary representing Jax Coal, Dr Trevor Johnson then representing the MacNicol family interests and Christopher Loveday representing the Department of Environment and Resource Management.
Prior to the hearing those three gentlemen admit together as independent experts and produced a joint report on their deliberations.[8]
[8] Exhibit 14.
Putting aside the involvement of Dr Johnson who represented the MacNicol’s who in turn have now withdrawn from these proceedings, the areas of agreement between those experts is relevant to consideration of the environmental issues.
The points of agreement reached between them were:
(a) It is agreed that a reasonable and comprehensive Environmental Impact Assessment was undertaken by Jax Coal.
(b) It is agreed that there are unlikely to be significant groundwater reserves within the Permian coal measures which will be mined by Jax operations. It was further agree that dewatering for the Jax pits is unlikely to have any significant effect on groundwater levels in the Permian measures.
(c) It is agreed that some reasonable yields may be obtained from the surface alluvium strata in the Bowen River and Twelve Mile Gully catchments. If Birralee Station extracts groundwater from these strata in the vicinity of the mining operations, the long-term yield from any associated bores may be affected as a result of the mines operations. It is agreed that the two registered bores on that property extract from aquifers which will not be affected by the mine works. However, it is possible that extraction from the alluvial strata does not occur on Birralee from unregistered bores. If this is the case, sufficient investigation should be undertaken to demonstrate that the proposed mining works will not a detrimental impact on yields from those bores.
(d) It is unlikely that mine operations will have a detrimental impact on the quality of groundwater in the local region.
(e) It is agreed that site specific control measures are required to be implemented by Jax Coal to ensure that erosion and sediment control from overburden heaps and other areas of disturbed soil are adequately controlled. Based on the approval documentation supplied by Jax Coal, and in the absence of an Erosion and Sediment Control Plan based on detailed designed and implementation plan, it has not been conclusively demonstrated at this stage that adequate controls will be implemented to ensure that erosion and sediment impacts can be satisfactorily ameliorated. However, it is agreed that suitable controls are available and could be implemented by a competent person in detailed design to provide adequate environmental protection.
(f) It is agreed that operation of the Jax Mine will reduce the catchment of Twelve Mile Gully to some extent and it is not known to what extent Birralee Station uses Twelve Mile Gully for water supply. It is also agreed that by its nature open-cut coal mining reduces the size of the catchments they operate in. It is agreed that the potential impact of catchment area reduction on surface water yields as a consequence of the formation of the Jax pits should be quantified.[9]
[9] Exhibit 14, pages 2 and 3.
There were a number of areas of disagreement which were largely driven by the views of Dr Johnson.
With respect to the issue of erosion and sediment control Mr Leary on behalf of Jax[10] pointed out with respect to contentions that the Environmental Management Plan should include some consideration of how any erosion impacts associated with the potential presence of sodic overburden material could be mitigated, pointed out that as part of the requirements of the Environmental Authority the miner would be required to progressively update the Erosion and Sediment Control Plan having regard to the actual categorisation of soil and waste rock revealed in the course of the mining processes.
[10] Exhibit 14, paragraph 2.
Mr Leary advanced the view that such a condition ensured that there was a process whereby erosion and sediment control strategies were all parts and stages of the mining activity were in place. He also pointed to a requirement for best practice Environmental Authority Conditions to apply.
He was supported in that contention by Mr Loveday who agreed that it was common practice in Queensland Coal Mining to develop and refine erosion and sediment control plans over time as a mine progresses.
Mr Loveday also pointed to the difficulty of preparing a more detailed plan that would specifically deal with all aspects of erosion and sediment control past the first six months of operation given the changing nature of mining, site geology and soil types, climatic conditions and rehabilitation techniques being employed on the site.
It was the view of Mr Loveday that the draft Environmental Authority and the Draft Environmental Management Plan adequately addressed such issues.
With respect to stormwater issues Mr Loveday asserted that the conditions which are contained in the Draft Environmental Authority specifying minimum protection levels for levies constructed at a mine site require the design and construction of those levies to be certified by a suitably qualified and experienced person, typically a registered professional engineer. He expressed the view on behalf of the statutory party that for the assessment of the Jax project it was not considered essential that a flood model be developed to assess the impacts of flooding due to the small catchment size and the ephemeral nature of the water courses that traverse the site.[11]
[11] Exhibit 14, paragraph 2.
Mr Loveday gave similar evidence under cross-examination.[12]
[12] T6-55 L30-40.
In the course of that cross-examination[13] Mr Loveday took comfort in the notion that as the life of the mine progresses further investigation and a more detailed Sediment Erosion Control Plan and a Plan of Operations would emerge.
[13] T6-57 L40.
In any event, while it may have been an issue between the relevant experts when the MacNicol’s were part of the appeal process none of the objections which remained relevant squarely raise the issue of flood studies or flood modelling. I am satisfied from a careful reading of the evidence given by each of Mr Leary and Mr Loveday and their reports that the Draft Environmental Authority and the Draft Management Plan as presently extant adequately provide for those issues.
The statutory party in its submissions in respect of the Environmental Authority and the Draft Management Plan was more strident.
It was submitted[14] as follows:
“There was no evidence adduced for the objections decision hearing to the effect that the conditions of the draft EA are not necessary or desirable or were not fixed by the administering authority in accordance with subsections 210(1), (3), (4) of the Act. Except regarding draft EA conditions W42 (Table 13 Groundwater monitoring locations), there is no evidence providing any basis for different EA conditions to the draft EA conditions.”
[14] Exhibit 26, page 2.
Mr Reed also raised objection in respect of the final void and the capacity for it to develop brackish to saline water over time. He describes it as:
“A void that would concentrate salts indefinitely.”[15]
[15] See the objection by Mr Reed, Exhibit 6.
The joint expert report prepared by Messrs Leary, Johnson and Loveday concludes that it is unlikely that the proposed mine operations would have a detrimental impact on the quality of groundwater in the region.[16]
[16] See Exhibit 14, Points of Agreement paragraph 4 and 5.
With respect to Mr Reed’s objection concerning the potential for concentration of brackish or saline water in the residual void. Mr Loveday gave evidence:
“The draft EA conditions F24 to F28[17] provide for rehabilitation criteria which will achieve safe water storage in residual voids suitable for post mining grazing use and is designed not to cause environmental harm although it is accepted by the applicant’s that, in any event, groundwater in the area is already affected by salinity and high chloride which makes it unsuitable for domestic or irrigation use but which is potentially suitable for stock use depending on the period over which the water is used.”[18]
[17] Exhibit 4.
[18] Exhibit 25, paragraph 18.17 at page 20 and Exhibit 5, Appendix 5, page 26 (Geoaxiom Report).
The concerns of the Mackay Conservation Group with respect to potential clearing of native remnant vegetation including riparian vegetation mapped as a regional ecosystem pursuant to the Vegetation Management Act 1999 has not, in my view been made out. There is no evidence before me which would satisfy me that their concerns in that regard are well-founded.
In all of the circumstances I am satisfied that the Draft Environmental Authority considered together with the Draft Environmental Management Plan of 8 July 2011 provides satisfactory and sufficient protection in respect of all of the potential environmental impacts of the proposed mining activity save that, as agreed by the experts and mentioned above, Condition W42 should be amended to include the proposed monitoring locations and monitoring type set out at page 23 of the Geoaxiom Groundwater Report Appendix 5 to the Draft Environmental Management Plan that is to say proposed monitoring locations MB01, MB02, MB03 and MB04. That is in addition to monitoring points BR782W, BR752W, JXWB01 and DK092W.
The applicant’s own groundwater consultants recommend that those bores should be constructed as multi-level vibrating wire piezometer (VWP Bores). In all of the circumstances in my view it would be prudent for the applicant to adopt that recommendation as well although it was not the subject of any detailed evidence before me.
Having then dealt with the provisions of the EPA it is appropriate now to turn to consideration of the requirements of the MRA.
Section 269 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)(a) – Whether the provisions of the Act have been complied with.
Although none of the three respondents to the application specifically raised any allegation against Jax Coal in respect of its compliance with the provisions of the Act it is still necessary for me to consider and make a finding as to whether the Act has been complied with.
The affidavit of Christopher Ian Wallin filed on 21 December 2011 deposes two matters relevant to the giving of public notice and compliance with the requirements of the Act.
Mr Wallin is the Managing Director of the Applicant and in his affidavit[19] deposes to having engaged Cottrell Cameron and Steen Surveys Pty Ltd to mark out the boundary of the land and I am satisfied from the report of Cottrell Cameron and Steen Surveys Pty Ltd exhibited to the affidavit of Mr Wallin that the boundary of the land the subject of MLA 10346 was properly and in a timely fashion marked out by datum posts.
[19] Affidavit of Christopher Ian Wallin paragraph 17.
Mr Wallin exhibits to his affidavit a copy of the application for a Mining Lease made by him with the Mining Registrar at Charters Towers.
Because there was no particular exception taken to any of the compliance matters I do not propose to descend to a high degree in examining particularly of those matters of which the affidavit of Mr Wallin satisfies me.
It is sufficient in my view to make a finding that the affidavit of Mr Wallin satisfies me that the requirements of ss 241, 245, 318AP(1), (2), 318DT(1), 246, 249, 252, 252B, 252C of the MRA have been complied with.
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?
Again this aspect of the application was not challenged by the Objectors but it is necessary for the Court to be satisfied from the material provided before it that the land is indeed mineralised.
Mr Wallin a geologist of substantial experience deposes to having carried extensive exploration work in the area of MLA 10346.[20] Mr Wallin deposes, in respect of that exploration activity, as follows:
“These exploration programmes have revealed that the area the subject of MLA 10346 contains significant coal resources and from this exploration it is estimated that there is a new shallow coal resource of approximately 22 million tonnes of economically recoverable coal available for extraction and sale of up to 1.8Mtpa of Run of Mine Coal to export markets. The life of the project is estimated to be 21 years.”
[20] Affidavit of Christopher Ian Wallin paragraph 32.
Other evidence before the Court demonstrated that the area of the proposed mining lease is adjacent to an already extant coal mining operation referred to as Sonoma Coal Mine.
In addition the affidavit of Mr Wallin referred to above[21] sets out the proposal to mine three pits known as the “Northern”, “Eastern” and “Southern” pits with the northern pit to be the initial pit to be mined from year 1 to year 11.
[21] Paragraph 35.
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 Applicant lodged with its application for a Mining Lease a number of attachment documents including copies of not only meets and bounds descriptions but also plans of the mine, a document identified as Application for Jax Mining Lease and Mining Infrastructure supporting statements and a voluminous document entitled “Initial Development Plan – Jax Mining Lease”.
That documentation sets out in considerable detail the plans for development and utilisation of the mineral resources including the various stages of the mining exercise which is proposed to be carried out over a 21 year period. No doubt additional more detailed development plans will emerge in the fullness of time but on the material which has so far been provided to the Court, 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 identifies an area of approximately 1,945Ha.
The Court had the benefit of an extensive inspection of the subject land and the mining lease area proposed is situated generally on cleared grazing land with a dominant land form which is flat to slightly undulating.
There was one area of agreement between Mr Leary and Mr Loveday which will result in a recommendation for a change to one of the conditions.
That agreement for an improvement in the conditions relates to the location of groundwater monitoring boards.
In cross-examination[22] Mr Loveday was asked about the draft Environmental Authority conditions and the table proposed in the Geoaxiom Report[23] which dealt with groundwater monitoring bore locations.
[22] T52 L10-20.
[23] Exhibit 5, Groundwater Report Appendix 5, page 23-24.
In the course of cross-examination Mr Morzone had asked Mr Loveday:[24]
“Do you think that the Geoaxiom Monitoring Program will provide for a more comprehensive baseline data set for groundwater levels and fluctuations in the immediate vicinity of the mine?”
To which Mr Loveday responded:
“I believe so, yes. The – proposed monitoring locations provide a greater spatial coverage of the site. So I think that it would be a better or an improvement upon the – the table in the draft EA.”
[24] T52 L10-20.
In the applicant’s submissions to this Court with respect to that matter, the applicant submitted as follows:
“Mr Loveday and Mr Leary both agreed (and the applicant accepts) that the additional monitoring points described in the Jax EMP at page 23 of the Geoaxiom Report, ought to be adopted as a condition. These conditions are the standard conditions which were developed by the Queensland Government in consultation with various stakeholders as part of their implementation of a more rigorous regime for water management in the Fitzroy Basin. Mr Leary confirmed in his evidence-in-chief that these conditions reflected best management practice and the implementation of more stringent conditions by DERM in recent times.”[25]
[25] Exhibit 25, page 30 paragraph 20.11.
There are a number of other areas of objection which must necessarily be addressed.
They raise the spectre of some operational relationship between the Sonoma Coal Mine to the North and the Jax Coal Site to the South as representative or indicative of potential problems for the future.
I am satisfied that the conditions which apply to the Sonoma Mine will continue to apply to it even at a time when it is processing coal from the Jax site.
As the statutory party submits:
“That processing will be subject to the EA conditions for Sonoma which do not allow for a cumulative increase in environmental impact as a result of additional processing.”[26]
[26] Exhibit 26, page 5, paragraph 7(b).
The supporting statement which accompanied the application for the Mining Lease observes:
“The area and shape of the MLA was selected in recognition of the seam dips and resource limits of the Project Area, the mining method proposed for the site, background land tenure boundaries, proposed layout of the Project Infrastructure (including access to power and water), ease of access within the property, local topography and the need for environmental and cultural heritage buffers.”[27]
[27] Page 2 of 14 of Supporting Statements Attached to Application for Mining Lease.
The Mackay Conservation Group also raise an issue with respect to dust although they do not provide any evidence or material to which I could have regard in framing an amended condition. Similarly Mr Reed raises the issues of dust problems allegedly caused by the Sonoma Mine and contends that it is indicative of some compounding of the dust problem by virtue of the activities on the Jax site.
I can do little better in responding to the concerns expressed by the Mackay Conservation Group and by Mr Reed than recite the submissions together with the relevant footnotings which were provided by the applicant.[28]
[28] Exhibit 25, pages 18-19 paragraphs 18.4 – 18.8.
“18.4Mr Reed has not put forward any evidence to support his statement that Collinsville has ‘dust problems’. Nor is there any evidence that Sonoma mine caused any increase in the dust levels at Collinsville. There is no evidence which would entitle the Court to draw the inference that mining operations at the Jax project would have a similar effect to the unidentified effect of Sonoma. There is no evidence that there will be any adverse environmental impact caused by dust from the proposed mining operations[29].
[29] For the purposes of s 269(4)(j) of the MRA.
18.5The evidence is to the contrary: the Jax EM Plan part B[30] which details the environmental values for the project assessed the sensitive places as that term is defined in DERM’s EMOS guidelines, including commercial places and residences, such as Collinsville, which had the potential to be affected by the dust emissions from the MLA[31]. It analysed the wind speed and strength over a one year period and identified a number of sensitive receptor sites which had the potential to be affected by dust emissions from the project[32]. Collinsville was not a place which was considered to be affected by any dust emissions from the project. It concluded that the prevailing winds were predominantly from the east, including northeast and southeast (comprising 74% of incident winds) with a low distribution from the south (6% of winds)[33]. As Collinsville is to the north of the project site, it supports the conclusion that it is unlikely to be affected by ‘dust problems’ resulting from the Jax project.
[30] Exhibit 5.
[31] Exhibit 5 – Section 2, pages of Part B of the Jax EMP – Environmental Values – Air.
[32] Exhibit 5 – Section 2 pages 12 – 19 Part B – Environmental Values of the Jax EMP.
[33] Exhibit 5 Page 20, Part B – Environmental Values of the Jax EMP.
18.6Air Mapping Australia were engaged by Jax to undertake an Air Quality Assessment Report which assessed the amount of dust likely to be produced by the Jax Mine as well as the sensitive receptor sites which were likely to be affected. The report is annexure 2 to the Jax EM Plan (Exhibit 5). It concluded that even on a ‘worse case scenario’ the dust levels at all nearby sensitive receptors readily complied with all EPP (Air) Limits[34].
[34]Exhibit 5 Page 24 Annexure 2 to the Jax EMP – Noise, Vibration and Air Quality Assessment Report – Noise Mapping Australia Pty Ltd.
18.7The Draft EA (Exhibit 4) also contains adequate controls to ensure that dust emissions are minimised. In particular, they:
18.7.1prohibit dust or particulate emissions which cause an environmental nuisance at any sensitive or commercial place[35];
18.7.2allow for monitoring of dust levels to occur on receipt of a complaint[36];
18.7.3specify a maximum level of dust deposition, failing which the applicant will breach the draft EA conditions and be required to undertake steps to rectify the nuisance[37].
18.8The first ground of objection is not supported by any evidence. Sufficient conditions exist in the Draft EA to provide for the control any dust emissions from the project at any sensitive receptor sites. The ground of objection ought to be rejected.”
[35] Exhibit 4 Draft EA – page 6 conditions B1.
[36] Exhibit 4 Draft EA – page 6 conditions B2.
[37] Exhibit 4 Draft EA – page 6 of 61.
There was no assertion in any of the objection material that either the land shape or the size of the proposed lease area was inappropriate.
I am satisfied that the land sought to be utilised and the surface area of that land are of appropriate size and shape.
Section 269(4)(e) – Whether the term sought is appropriate?
The term sought for the lease is 21 years which covers the construction of the mine facilities including clearing and overburden removal, extraction of the coal resource and rehabilitation of the subject land.[38]
[38] See paragraph 40 of the Affidavit of Christopher Ian Wallin.
The Court was provided with details of a mining schedule aimed at achieving a maximum production rate of 1.8 million tonnes per annum. The period sought including time for appropriate rehabilitation is 21 years and accordingly, I am satisfied that the term of 21 years sought by the Applicant is an appropriate term given the magnitude of the mining development proposed.
Section 269(4)(f) –Whether the Applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?
This was another of the compliance matters that was not really under challenge from any of the objectors but it is an important prerequisite if recommendation is to be made for the granting of the mining lease.
The applicant Jax Coal Pty Ltd is a subsidiary of QCoal Pty Ltd which has been actively exploring for coal within the general region over a long period of time and had previously discovered and developed the adjoining Sonoma Coal Mine.
Exhibited to the application was correspondence from Harris Black Chartered Accountants dated 9 November 2009 in which they advise as follows:
“We have reviewed the financial commitment required to construct and operate the Jax Coal Project, including those likely to be required by the Department of Employment, Economic Development and Innovation as part of the Jax Mining Lease Application. From this review and based upon our knowledge of the company and its parent QCoal Pty Ltd, we are of the opinion that Jax Coal has the necessary financial resources to meet these commitments.”[39]
[39] Exhibit 3, Appendix 6.
Mr Wallin in his affidavit refers to the more than 16 years experience of the parent company QCoal and Queensland Coal and Exploration Mining Industry and it deposes in his affidavit to the fact that
“At no time has any security deposited by the Applicant in relation the mining and prospecting/exploration; -
a.not been refunded when due;
b.been utilised by the Minister to rectify any breach of the MR Act or any other legislation relating to mining or breach of conditions of a mining tenement;
c.been used to pay any penalty;
d.been reviewed by the Minister except in accordance with yearly reviews of mining tenements; or
e.been increased by the Minister due to any actual or potential breach of conditions, Codes of Conduct or the like.”[40]
[40] Affidavit of Christopher Ian Wallin, paragraph 43.
On the evidence before me I am satisfied that Jax Coal Pty Ltd 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 it 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?
Jax Coal as an entity has not, to the Court’s knowledge, previously been involved in the development of a coal mine. However, its parent QCoal Pty Ltd has extensive experience in the mining industry and in particular, obviously, coal mining with the Sonoma Mine. The material contained in the affidavit of Mr Wallin as to the performance of the parent company in the past and the absence of any evidence adduced by any party to the hearing of any unsatisfactory conduct leads me to conclude that the past performance of the Applicant and its associated Company has been satisfactory.
It should, however, be noted that each of the submitters Mackay Conservation Group and Garry Reed refer to Permit Infringement Notices which issued to the Sonoma Mine but there is no detail as to what those Penalty Infringement Notices related to. The Court has no way of knowing whether the alleged breaches were serious or minor and I do not accept that an allegation contained within an objection unsubstantiated by any evidence placed before the Court would be sufficient to warrant a finding that the past performance of the Applicant has been unsatisfactory.
As is appropriate Mr Wallin in his affidavit squarely confronts the issue of a Penalty Infringement Notice.
I accept that Mr Wallin’s explanation was necessary but I also accept that it is an adequate response to the criticism implied by raising the issue of the issue of a Penalty Infringement Notice.
Accordingly, it seems appropriate to recite in its entirety his explanation of the circumstances relating to the issue of that Penalty Infringement Notice.[41]
[41] Affidavit of Christopher Ian Wallin, paragraph 84.
“84.In relation to the WRC Objection that “Previous incidents with contaminated water releases from QCoal mine site Sonoma have alerted the council to how quickly ecosystems in receiving waters can be affected by such events” I say as follows:
(a) A subsidiary of QCoal (QCoal Sonoma Pty Ltd) holds a minority interest in the Sonoma Mine and its underlying mining leases. However, QCoal and QCoal Sonoma Pty Ltd are not directly involved in the day to day management of the Sonoma Mine. The Sonoma Mine is managed by Sonoma Mine Management Pty Ltd with management control sub-contracted to Leightons. QCoal Sonoma Pty Ltd is a member of the Sonoma Mine Management Committee which meets at least quarterly to receive updates on management of the Sonoma Mine and to provide direction to Sonoma Mine Management Pty Ltd in its day to day management of the Sonoma mine operations. However, even on that Committee, QCoal Sonoma Pty Ltd only has a minority (and not a controlling) vote;
(b) On or about 12 and 13 September 2010, water contaminated by mining activities had been pumped from the northern end of Sonoma Mine’s open cut pit into the mine site’s water drainage channel, where the water breached the water drainage channel and a flood protection levee to discharge across land into the bed of that part of Coral Creek that is within the outside borders of the Sonoma Mining Leases.
(c) The release location was not listed in the environmental authority for the Sonoma Mine as an authorised release point for mine affected waters and therefore the release was in contravention of that environmental authority.
(d) No remedial action was required by DERM and none was taken.
(e) On 24 September 2010, a Penalty Infringement Notice (“PIN”) was subsequently issued to QCoal Sonoma Pty Ltd, a QCoal subsidiary, because QCoal Sonoma Pty Ltd is registered as the Principal Holder of the Sonoma mining leases;
(f) The discharge at Sonoma was not due to the direct actions or inactions of QCoal or QCoal Sonoma Pty Ltd. Instead, the actions that resulted in the discharge were under the control and management of Leightons and Leightons paid the $3000 penalty imposed under the PIN and dealt with any rehabilitation and correction to internal processes and management required. QCoal Sonoma Pty Ltd was not aware of the issue at the time that it occurred.”
In making that observation I also observe that there can be a range of reasons for the issuing of Infringement Notices ranging from deliberate acts of contravention to the effects of innocent and unintended oversights.
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?
In his affidavit[42] Mr Wallin informed the Court that at the time of lodging MLA 10346 the area was overlapped by:
a) Exploration Permit (Coal) 586 held by QCoal Pty Ltd;
b) An application for Mineral Development Licence (Coal) 392 held by QCoal Pty Ltd;
c) An Exploration Permit for Petroleum (ATP) EPP 688 held by BNG (Surat) Pty Ltd; and
d) An application for Exploration Permit (Mineral) 17214 by Duyfken Explorations Pty Ltd.
[42] Affidavit of Christopher Ian Wallin, paragraph 9.
As mentioned above QCoal is a related company.
Mr Wallin in his affidavit exhibits correspondence from Sunshine Gas Limited which held all of the share capital of BNG (Surat) Pty Ltd and Hamilbent Pty Ltd who were the holders of the Permit to Explore for Petroleum (ATP 688P).
That letter dated 16 January 2006 contains the consent of those two companies to QCoal Pty Ltd making the application for a number of mining leases including ML 10346.[43]
[43] Affidavit of Christopher Ian Wallin, paragraph 48. Exhibit CIW5.
As indicated above Duyfken Explorations Pty Ltd has withdrawn its objection to the mining lease and it might be surmised that it is because they now accept that it will have no effect upon their operations.
Accordingly, I am satisfied that there are no holders or applicants for any tenures who would be disadvantaged by the grant.
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 land the subject of the application for a mining lease is currently run as a relatively sophisticated cattle grazing property. The majority of the lands are cleared grazing land and inevitably an impact will be made upon that operation.
That was one of the bases of the objections originally made by MacNicol which matters between MacNicol and Jax Coal have now been resolved and resulted in the withdrawal by MacNicol of their objections.
It is a reality that the coal along with other minerals is an immovable resource and inevitably at least for the life of the mine, above ground operations are likely to be disturbed.
The relevant department has issued an Environmental Authority which together with the Plan of Operations and the Environmental Management Plan[44] will form the basis of the proposed mining operation and the environmental and operational constraints upon it.
[44] Exhibit 3, Appendix 4 and Appendix 7.
I am satisfied that the Environmental Management Plan and the Environmental Authority addresses the issues of rehabilitation and permits, after the life of the mine for other uses to be resumed upon the subject site and accordingly I am satisfied that the utilisation of a mining lease to extract existing coal deposits conforms with sound land use management.
Section 269(4)(j) – Whether there will be any adverse environmental impacts, caused by those operations and if so, the extent thereof.
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.
In my view the objections raised by the objectors are entirely speculative and in particular the objections fail to articulate any proper basis for concern about environmental impacts.
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.
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 what was contained within the various objections which remained for consideration after the MacNicol’s and Duyfken withdrew and to my conclusions with respect to the Environmental Authority, there is no evidence before the Court which would constitute a good reason for refusing to grant the mining lease.
Accordingly, 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 that land?
On the basis my finding 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 10346 be granted over the application area.
Accordingly for the reasons set out above:
(a) I can find nothing in the material provided by the objectors which would cause me to either refuse the issue of an Environmental Authority or to change the terms of the draft Environmental Authority Permit No. MIN100943909 save to the extent that the evidence supports amendment to condition W42 in the terms set out above.
(b) The evidence adduced before me convinces me that it would not be reasonable to reject the application in whole or to recommend any additional conditions pursuant to s 269(3) of the MRA.
Accordingly, the orders I make are as follows:
1. I recommend to the Honourable the Minister for Natural Resources and Mines pursuant to the Mineral Resources Act 1989 (Qld), that Mining Lease 10346 be granted over the application area.
2. I recommend to the Honourable the Minister for Environment and Heritage Protection, pursuant to the Environmental Protection Act 1994, that the draft Environmental Authority issued on 12 September 2011 be issued with amendment namely that Condition No. W42 be amended so that the proposed monitoring locations are described as MB01, MB02, MB03, MB04, BR782W, BR752W, JXWB01 and DK092W as set out at page 23 of the Geoaxiom Groundwater Report Appendix 5 to the Draft Environmental Management Plan.
HIS HONOUR, MR WL COCHRANE
MEMBER OF THE LAND COURT
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