Oosen v Australian Wildlife Conservancy and Chief Executive, Department of Environment and Heritage Protection
[2013] QLC 25
•22 May 2013
LAND COURT OF QUEENSLAND
CITATION: Oosen v Australian Wildlife Conservancy and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 25 PARTIES: Neville Oosen
(applicant)
v Australian Wildlife Conservancy
(respondent)and
Chief Executive, Department of Environment and Heritage Protection
(statutory party)FILE NOS: MRA883-12 and EPA884-12 DIVISION: General Division PROCEEDING: A hearing for application for mining lease and objections to its grant. Objections to draft environmental authority. DELIVERED ON: 22 May 2013 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER:: His Honour, WL Cochrane ORDER: 1. I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease ML 20686 be granted over the application area.
2. I recommend to the Honourable the Minister administering the Environmental Protection Act 1994 that the environmental authority be issued in terms of the amended draft environmental authority agreed between the parties and tendered as EXHIBIT 1 without further amendments.
CATCHWORDS: Mining – Mining Lease – Recommendations – Objections – Mineral Resources Act 1989 ss 238, 252, 269 and 422.
Environment – draft environmental authority – objections – Environmental Protection Act 1994 – ss 219, 220, 222 and 223.
APPEARANCES: Mr J Said, agent for the applicant.
Ms J Siddins, agent for the respondent.
Ms N Lucas, solicitor for the chief executive.
Background
On or about 30 September 2011 Neville Oosen made application for a mining lease pursuant to s.245 of the Mineral Resources Act 1989 (MRA) and the Environmental Protection Act 1994 (EPA) respectively.
The lease and the access to that lease (ML 20686) is over land located 31 kilometres west of Mt Carbine in North Queensland.
The land is located within the Tablelands Regional Council Local Government area and the applicant seeks silver ore, gold, platinum, antimony ore, as well as the establishment of living quarters/camp, a treatment plant and a mill site. The land is held pursuant to a leasehold by the respondent Australian Wildlife Conservancy for the purpose of a nature reserve. It is otherwise described as lot 13 on SP 127335.
The application is for an area of 49.1486 hectares and seeks a term of 10 years.
Contained within the application area is an already granted mining lease ML 20041 known as the Three Peaks Mine which is currently held by the applicant Mr Oosen but was previously held in the name of Raymond Fraser who is now deceased.
There has also been an application for an environmental authority (mining lease) for a level 2 mining project made to the statutory party then known as the Department of Environment and Resource Management (DERM) on 30 September 2011.
On 10 May 2012 DERM gave notice of the decision to grant an environmental authority to Mr Oosen in respect of the proposed lease ML 20686.
On 27 November 2012, as they were entitled to, the Australian Wildlife Conservancy the leaseholders on the land to which the mining lease application is relevant made an objection to both the mining lease and the application for an environmental authority.
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 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 Acts (MRA and EPA) do not contain any provisions which entitle me to go beyond the ambit of the relevant objections.
Because of the way in which this matter has proceeded it is now not necessary for me to recite in detail all of the grounds of objection raised by the Australian Wildlife Conservancy save to say that they raise the following issues:-
(a) the fact that the land is the subject of a conservation agreement between Australian Wildlife Conservancy and the Queensland Government and mining on the land is inconsistent with that status;
(b) there are or likely to be Environmental Protection Bio-Diversity Conservation Act relevant endangered species on the mining lease in particular the Northern Quoll;
(c) the grant of the mining lease might damage or permanently impair conservation values on the leasehold part of the nature reserve;
(d) there are allegations that the stated pre-mining and post-mining land use and capability is incorrect and misleading; and
(e) the objection raises an allegation that granting the mining lease would be contrary to the public interest.
As a consequence of the good offices of the mining registrar at Mareeba, Mr Peter Wilson, the parties embarked upon a negotiation process which has resulted in reaching agreement on the terms of an amended environmental authority (mining lease) for a non-code compliant level 2 mining project. At the last mention before me, on 24 April 2013 a copy of that proposed draft permit was tendered and became Exhibit 1.
The amended environmental authority contained amendments to paragraphs B1, B5 and B7.
Those amended conditions are:
B1Mining activities must be carried out in a way that minimises the risk of impacts on the biodiversity or natural heritage values of the Brooklyn Nature Refuge.
B5Campsites must not be established within the Brooklyn Nature Refuge.
B7Areas disturbed by mining activities must be revegetated with native plant species, endemic to the area that will promote the same vegetation type and density of cover to that of the surrounding undisturbed areas in the Brooklyn Nature Refuge. The holder of the environmental authority must consult with the landholder prior to development and implementation of revegetation strategies.
At the last mention of the matter Mr Oosen was represented by Mr James Said who advised the Court, without objection by the other parties, that he now stood in the shoes of Mr Oosen and the documentation had been provided to the mining registrar at Mareeba evidencing that arrangement.
At the last mention of this matter Ms Lucas for the department advised the Court in the following terms:
“and a further revised draft environmental authority has been circulated between the parties and I have written confirmation that the applicant accepts the conditions in the revised EA, I also have written confirmation from the objector that they no longer wish to oppose their objection and on that basis no longer oppose the draft EA.”
Ms Siddins for the Australian Wildlife Conservancy confirmed that in her submissions to me she said as follows:
“Your Honour essentially we feel that we have taken it as far as we are going to be able to we don’t have the resources to pursue it any further while we would of course have preferred to achieve more than we have managed to achieve on the basis that we have got to where we have.”
Ms Siddins went on to say that she was not prepared on behalf of her client to go so far as to say that the draft environmental conditions completely satisfied her organisation’s concerns, but they accepted that they had gone as far and achieved as much as their resources enable them to do, and that the mediated outcome which resulted in the amended environmental permit conditions went as far as it could to address their concerns.
Accordingly, on the basis of what is set out above I am content to recommend to the Honourable the Minister administering the Environmental Protection Act 1994 that the environmental authority be issued in terms of the amended draft environmental authority tendered before the Court as Exhibit 1 without further amendments. (Save for the changes which were made to conditions B1, B5 and B7).
That leaves only the issue of the recommendation required in respect in the mining lease itself.
It should be noted of course that that requirement has been somewhat reduced by the concession made by Ms Siddins on behalf of the Australian Wildlife Conservancy that they now withdraw their objection to the mining lease as well as the objection to the application for an environmental authority. Notwithstanding that withdrawal of objection I regard as appropriate to continue to consider whether the proposed mining lease meets the various tests set out in the Mineral Resources Act.
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.
I am satisfied that all of the relevant provisions of the MRA 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?
I am satisfied as consequence of the material filed by Mr Oosen that the area of the lease is likely to be mineralised and that the other uses proposed on the mining lease are appropriate and thus at 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?
Having regard to the material which has been filed by Mr Oosen including the additional mining lease applicant information that 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?
Having regard to the aerial photography in the plan of proposed development 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?
Mr Oosen applies for a 10 year period for the life of the lease which is intended to in a sense “bolt on” to an existing lease. I am satisfied that the term of 10 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?
Mr Oosen filed with his application a copy of the mining program for his gold project together a statement setting out the financial technical resources available to him together with a statement by Land McKaig Mr Oosen’s accountant certifying that in their opinion he has access to sufficient funds to attend to the commitments to support his application.
Accordingly, on the evidence before me I am satisfied that Mr Oosen 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.
Section 269(4)(g) – Whether the past performance of the Applicant has been satisfactory?
I am satisfied that s.269(4)(g) of the MRA has been satisfied.
No evidence was advanced before me either from the relevant statutory party or from the objectors to suggest that there was any aspect of Mr Oosen’s previous conduct as a miner which demonstrates unsatisfactory performance and accordingly then I am satisfied that there is no past performance which has been unsatisfactory.
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.
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 case having regard to the aims of the leaseholders of the Brookland Nature Refuge and conditions imposed by the amended draft permit for a non-code compliant level 2 mining project the proposal alienated to the mining lease is, on the one hand a very small fraction of the total land area held by the respondents and on the other hand containing sufficient mineralisation to warrant exploitation, I am satisfied that the utilisation of a mining lease to extract existing mineralisation 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.
Notwithstanding the objections of the respondents to the proposed mining activity 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 Project and in particular with the requirements of the amended draft environmental permit number MIC 203306211.
In my view the objections raised by the Australian Wildlife Conservancy were soundly based but, having regard to the negotiated outcome, have been adequately addressed by amendments to the draft permit.
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 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 20686 be granted over the application area.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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