Markert
[2010] QLC 28
•22 February 2010
LAND COURT OF QUEENSLAND
CITATION: Markert [2010] QLC 28
PARTIES:Frank Joseph Markert
(Applicant)
FILE NO:MRA524-09
PROCEEDING: Application for Mining Lease No. 20610
DELIVERED ON: 22 February 2010
DELIVERED AT: Atherton
HEARD AT:Heard on the Papers
MEMBER:Mr PA Smith
ORDER/S:1. Hearing dispensed with.
2. Recommendation made to the Honourable the Minister for Natural resources, Mines and Energy and Minister for Trade that Mining Lease No. 20610 be granted over the application area for the purpose and term sought by the Applicant, with the access thereto as specified by the Applicant, noting in particular that such access includes access in part over a road open for public use and only traverses the landholders’ land where the access departs from such road.
CATCHWORDS: Mining – mining lease – no objections – access – road on pastoral property – whether road open to public use – recommendation – Mineral Resources Act 1989, ss 238, 245, 252, 269, 270 – Land Act 1962 s.362 – Land Act 1994 – s.454
APPEARANCES: Not Applicable – Heard on the Papers
On 12 November 2008 Frank Joseph Markert (“the Applicant”) lodged Mining Lease Application No 20610 with the Mining Registrar, Mareeba District. The Application was lodged pursuant to s.245 of the Mineral Resources Act 1989 (“the Act”) for the purpose of mining for silver ore and gold, and camp/workshop/machinery/storage/dams and water supply. No objections were duly lodged to the Mining Lease Application and the draft Environmental Authority.
It should be noted that the landholders, through their solicitor, advised the Land Court in 2009 that, due to difficulties with their mail service and related problems, they were unaware of a number of mining lease applications on their property and had not lodged objections or corresponded with the Land Court because of their lack of knowledge of the applications. In order to ensure that the landholders had a proper opportunity to consider their legal position and take legal advice, on my direction the Land Court wrote to the landholders’ solicitor on 22 January 2010, allowing them a period of 14 days to make any application or submission that they considered appropriate. Following additional correspondence from the landholders’ solicitor[1] and an email from the Applicant,[2] a mention was held on 9 February 2010 involving a number of mining matters on the landholders’ property, including this application and its related application for determination of compensation.[3] On 19 February 2010 the landholders’ solicitors provided submissions to the Court regarding, inter alia, access to this application area, and questioned at paragraph 31 of those submissions the Land Courts’ power to proceed further with respect to access.
[1] See letter of 8 February 2010.
[2] See email of 8 February 2010.
[3] See MRA143-09.
Request to dispense with a hearing – Section 270
The Applicant has requested that the Application be dealt with without an oral hearing. Taking in to account s.270 of the Act, I am satisfied that there is sufficient information before me. It is further noted that, during a recent Land Court circuit to the Palmer River Goldfields, I took the opportunity of inspecting the application area in the presence of the Applicant.
In the circumstances, I order that a hearing of this Application be dispensed with.
Section 269(4) criteria
In taking account of and considering the criteria specified in s.269(4) of the Act, I have relied on the Applicant’s Additional Information and Statutory Declaration, the Court’s inspection of the application area and proposed access, and material supplied to the Court by the Applicant. I have also relied upon the material lodged by the Applicant with the Mining Registrar, additional material provided by the Mining Registrar, and the Mining Registrar’s Report in relation to this Application. The issues relating to access are dealt with in these reasons, including the landholders’ submissions with respect thereto. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account.
Section 269(4)(a) – Have the provisions of the Act been complied with?
On 25 September 2009, the Mining Registrar issued a Certificate of Application. The Mining Registrar can only issue the Certificate if satisfied that the Applicant is eligible to apply for the mining lease and has complied with the requirements of the Act with respect to the Application.[4] I note that the Application is over leasehold land, and that this Application has by “Deeding In” been linked to a registered Indigenous Land Use Agreement.[5] In my opinion, there is sufficient evidence of compliance with the provisions of the Act in respect to this Application.
Section 269(4)(b) – Is the land applied for mineralised or are the other purposes for which the lease is sought appropriate?
[4] See s.252 of the Act.
[5] See Deed dated 5 February 2009.
I am satisfied from the Applicant’s evidence that the land applied for is mineralised. I note the Applicant’s evidence that previous mining activities have been undertaken on the application area. The Application is in a known mineral producing area.
Section 269(4)(c) – If the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for?
The material before me reveals the Applicant’s proposed mining operations and program, and shows appropriate development and utilisation of the mineral resources within the area applied for.
Section 269(4)(d) – Is the land and the surface area of that land in respect of which the mining lease is sought of an appropriate size and shape?
The material before me appears to indicate a mining lease application of an appropriate size and shape in light of the proposed mining operation.
Section 269(4)(e) – Is the term sought appropriate?
The term sought for this mining lease is 10 years, which I consider appropriate.
Section 269(4)(f) – Has the Applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?
The material indicates that the Applicant has the financial and technical capabilities to carry on the mining operations. The Applicant has been successfully undertaking mining and exploration activities since 2003, and he has sufficient resources to adequately meet the requirements of this small-scale operation. I am satisfied that the requirements of this criterion are met.
Section 269(4)(g) – Has the past performance of the Applicant been satisfactory?
The Applicant’s evidence is that no enforcement action has been taken against him. The Mining Registrar’s Report is consistent with what the Applicant says.
Section 269(4)(h) – Will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences?
The Applicant held PP21165 and holds EPM14178. There is nothing to indicate any disadvantage to any other holder.
Section 269(4)(i) – Do the operations to be carried on under the authority of the mining lease conform with sound land use management?
Save for the issues relating to access, there is nothing before me to suggest that the proposed operations do not conform with sound land use management. I am satisfied that the application should proceed as one without any duly objection from the landholder.
Section 269(4)(j) – Will there be any adverse environmental impacts, and if so, the extent thereof:
A draft environmental authority was publicly advertised and raised no objections. There is no evidence to suggest that the environmental impacts will not be adequately dealt with by compliance with the conditions of the authority.
Section 269(4)(k) – Will the public right and interest be prejudiced?
There is nothing in the material to indicate any prejudice to the public right and interest. Specific issues relating to access are dealt with separately.
Section 269(4)(l) – Has any good reason been shown for a refusal to grant the mining lease?
There was no evidence before me that indicated any good reason why this Application should be refused.
Section 269(4)(m) – Is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land?
The materials show that the project is for the extraction of a potentially valuable resource in accordance with the environmental processes. I am satisfied that the proposed mining operation is an appropriate land use.
Access
The landholders have taken issue with this application in so far as it relates to access. Importantly, no objection was duly lodged by the landholders relating to this or any other issue. The Land Court cannot therefore entertain any objection or consider any evidence placed before it by the landholders with respect to this issue.[6] I do however acknowledge the material placed before the Court by the Applicant and the Mining Registrar as evidence to which I may have regard. I also note the submissions made by the landholders. In the circumstances, it would be remiss of me not to draw this issue to the attention of the Honourable the Minister.
[6] See MRA s.268(3).
Part of the access proposed by the Applicant traverses a dam wall known as Dambusters or Greasy Bill Dam, to which ML3114 is relevant. Evidence provided by the Mining Registrar shows that ML3114 was previously ML1282. It is clear from a close examination of the historical material relating to ML1282 that there was a road in existence which traversed the ML and that the surface of that road did not form part of the ML.[7] I also note the contents of Special Condition 15 of ML1282 which requires the miner to maintain all ‘roads, tracks and rights of way on the lease’ and that, should the miner desire to mine through any such road, track or right of way, an alternate road, track or right of way must be provided and maintained by the miner to at least the same standard as the original road, track or right of way.
[7] See Department of Mines letter dated 3 October 1989 and related material, including, in particular. The Lease Location Sketch which refers to the lease area as “Whole (excluding road)”.
It is also relevant to note that no access was required to ML1282 as access was via the existing Cannibal Creek Road which ran through the property.
At the time of the grant of ML1282, the status of roads was governed by s.362 of the Land Act 1962. Section 362(3)(a) provided that “(3)(a) An unsurveyed road through a pastoral lease or occupation license may be sufficiently dedicated as a road for public use by its delineation by a dotted line on a map or plan published by the Department whether before or after the commencement of this Act. The location of such a road may be varied in accordance with an amended delineation shown by a later map or plan so published.” I note that, pursuant to s.454 of the Land Act 1994, existing roads from the 1962 Act continue to be taken as dedicated roads.
All relevant maps sighted by the Court in the material provided by the Mining Registrar show a dotted line running to, through, and beyond ML1282, and I am satisfied, taking all of the material before me into account, that such dotted line represents a road ‘sufficiently dedicated for public use’ for the purposes of s.362(3)(a) of the 1962 Act. I further accept that, pursuant to ML1282’s special condition 15, that the road was altered by the construction of the dam wall by the miner and that thereafter the road has traversed the dam wall of Greasy Bill Dam/Dambusters. The road remains open for public use, including use by miners for the purpose of accessing mining leases.
For completeness, in my view the provisions of s 238 of the MRA are not relevant as those provisions relate to the Applicant’s mining lease area and not the access to the mining lease.
In so far as the Applicant has sought access to the MLA20610 application area by way of the road which traverses ML3114, such road is open for public purposes and dedicated access is only required from the point where the Applicant’s access departs from such road. The Applicant’s access should be formally so noted by the Mining Registrar when forwarding this recommendation to the Honourable the Minister. Compensation with the landholders will only be necessary with respect to so much of the access which is not on a road open for public use.
Recommendation
Taking into account all the evidence before me and, in particular, the evidence referred to above, I recommend to the Honourable the Minister for Natural resources, Mines and Energy, and Minister for Trade that Mining Lease No. 20610 be granted over the application area for the purpose and term sought by the Applicant, with the access thereto as specified by the Applicant, noting in particular that such access includes access in part over a road open for public use and only traverses the landholders’ land where the access departs from such road.
P A SMITH
MEMBER OF THE LAND COURT
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