Pickering v Pedersen - [2023] QLC 12

LAND COURT OF QUEENSLAND

CITATION: Pickering v Pedersen [2023] QLC 12

PARTIES:
Rai Pickering
(applicant)

v

Alan Pedersen
(active party objector)

Karen Pedersen
(objector)

FILE NO: MRA057-23

PROCEEDING: Referral of mining claim application and objection

DELIVERED ON: 15 September 2023

DELIVERED AT: Brisbane

HEARD ON: 16 August 2023

HEARD AT: Mareeba

MEMBER: JR McNamara

ORDERS:
1.     I recommend to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989 (Qld), that MC300416 and MC300417 be granted, provided that conditions consistent with Orders 2 – 10 are included in each MC.

The holder of MC300416 and MC300417 must use existing access points, roads or tracks to enter the landholder’s land, unless alternative access is negotiated with the landholder;2.

The holder of MC300416 and MC300417 must operate vehicles on the landholder’s land: 3.

In daylight hours (only)(a)

At speeds that are appropriate for the landholder’s land; and(b)

Minimise noise, dust and disturbance to the land; (c)

The holder of MC300416 and MC300417 may operate a vehicle in wet conditions on the landholder’s land only in a way that minimises damage to access points, roads and tracks on the land; 4.

The holder of MC300416 and MC300417 must use the landholder’s land in a way that minimises disturbance to people, livestock and property, and to the users of campsites approved by the landholder; 5.

If in carrying out activities associated with MC300416 and MC300417, the holder of MC300416 and MC300417 becomes aware of any potential adverse impact, caused by the activities, on the landholder’s livestock or property, they must immediately notify the landholder of the potential impact;6.

If the holder of MC300416 and MC300417 intends to set up camp on the landholder’s land, the holder and the landholder must, before the camp is set up, agree on a location and a plan for managing the camp; 7.

If the holder of MC300416 and MC300417 intends to set up camp on land other than the landholder’s land, the holder and the owner or authority responsible for that land must, before the camp is set up, agree on a location and a plan for managing the camp; 8.

The holder of MC300416 and MC300417 must, after using a gate on the landholder’s land, return the gate to its original position unless advised otherwise by the landholder; and 9.

The holder of MC300416 and MC300417 must negotiate with the landholder in relation to any proposal to construct a gate or gates on the landholder's land in relation to the location, and the standard of work including the type and quality of construction, before work commences on the mining claims.Subject to an agreement otherwise with the landholder, the cost of the work is to be met by the holder of MC300416 and MC300417. 10.

CATCHWORDS:
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – where the applicant applied for the grant of two mining claims – where hand-mining is proposed on mining claims – where the respondents lodged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pickering v Pedersen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] QLC 12
Decision Date: 15 September 2023

CaseChat Overview and Summary

In Pickering v Pedersen, the applicant sought the grant of two mining claims, MC300416 and MC300417, within a watercourse on land owned by the respondents. The respondents, who are pastoralists and operate a small-scale tourist operation, objected to the grant of the mining claims on the basis of potential environmental impacts and interference with their land use. The objections were referred to the Land Court for determinations under the Mineral Resources Act 1989 (MRA). The primary legal issue before the court was whether the applicant had complied with the requirements of Chapter 3 of the MRA concerning mining claims, including whether the proposed mining activities would cause unreasonable environmental harm, and whether the applicant had considered the Small-scale Mining Code and the Land Access Code 2023. The court also considered human rights issues, including the cultural rights of Aboriginal peoples, under the Human Rights Act 2019 (HRA) and protections under the Aboriginal Cultural Heritage Act 2003.

The court found that the applicant had generally complied with the requirements of the MRA and the Small-scale Mining Code. It determined that the mandatory conditions of the Land Access Code 2023 did not apply, but recommended conditions to manage the impacts of the mining activities on the landholders' peaceable enjoyment and pastoral enterprise, as well as their tourism operation. The court examined the potential environmental impacts, including water turbidity, and concluded that the applicant could mitigate these impacts through the imposition of specific conditions. The court also considered the cultural rights of Aboriginal peoples and the need for consultation with native title holders and right to negotiate under the HRA. The court recommended that the mining claims be granted, subject to the imposition of certain conditions to manage the impacts on the respondents' land use and to protect the environment and cultural heritage.

In summary, the court recommended that the mining claims be granted, subject to the imposition of specific conditions to manage environmental impacts, protect the respondents' land use, and ensure the cultural rights of Aboriginal peoples are respected. The conditions include the use of existing access points, restrictions on vehicle operation, minimising disturbance to people and livestock, and negotiation of camp locations and gate construction. These conditions aim to balance the applicant's rights to mine with the respondents' rights to use their land peacefully and the need to protect the environment and cultural heritage.

Orders

Orders of the court

1. I recommend to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989 (Qld), that MC300416 and MC300417 be granted, provided that conditions consistent with Orders 2 – 10 are included in each MC.

The holder of MC300416 and MC300417 must use existing access points, roads or tracks to enter the landholder’s land, unless alternative access is negotiated with the landholder;2.

The holder of MC300416 and MC300417 must operate vehicles on the landholder’s land: 3.

In daylight hours (only)(a)

At speeds that are appropriate for the landholder’s land; and(b)

Minimise noise, dust and disturbance to the land; (c)

The holder of MC300416 and MC300417 may operate a vehicle in wet conditions on the landholder’s land only in a way that minimises damage to access points, roads and tracks on the land; 4.

The holder of MC300416 and MC300417 must use the landholder’s land in a way that minimises disturbance to people, livestock and property, and to the users of campsites approved by the landholder; 5.

If in carrying out activities associated with MC300416 and MC300417, the holder of MC300416 and MC300417 becomes aware of any potential adverse impact, caused by the activities, on the landholder’s livestock or property, they must immediately notify the landholder of the potential impact;6.

If the holder of MC300416 and MC300417 intends to set up camp on the landholder’s land, the holder and the landholder must, before the camp is set up, agree on a location and a plan for managing the camp; 7.

If the holder of MC300416 and MC300417 intends to set up camp on land other than the landholder’s land, the holder and the owner or authority responsible for that land must, before the camp is set up, agree on a location and a plan for managing the camp; 8.

The holder of MC300416 and MC300417 must, after using a gate on the landholder’s land, return the gate to its original position unless advised otherwise by the landholder; and 9.

The holder of MC300416 and MC300417 must negotiate with the landholder in relation to any proposal to construct a gate or gates on the landholder's land in relation to the location, and the standard of work including the type and quality of construction, before work commences on the mining claims.Subject to an agreement otherwise with the landholder, the cost of the work is to be met by the holder of MC300416 and MC300417. 10.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Pickering v Pedersen [2023] QLC 12
PARTIES:	Rai Pickering (applicant) v Alan Pedersen (active party objector) Karen Pedersen (objector)
FILE NO:	MRA057-23
PROCEEDING:	Referral of mining claim application and objection
DELIVERED ON:	15 September 2023
DELIVERED AT:	Brisbane
HEARD ON:	16 August 2023
HEARD AT:	Mareeba
MEMBER:	JR McNamara
ORDERS:	1. I recommend to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989 (Qld), that MC300416 and MC300417 be granted, provided that conditions consistent with Orders 2 – 10 are included in each MC. The holder of MC300416 and MC300417 must use existing access points, roads or tracks to enter the landholder’s land, unless alternative access is negotiated with the landholder;2. The holder of MC300416 and MC300417 must operate vehicles on the landholder’s land: 3. In daylight hours (only)(a) At speeds that are appropriate for the landholder’s land; and(b) Minimise noise, dust and disturbance to the land; (c) The holder of MC300416 and MC300417 may operate a vehicle in wet conditions on the landholder’s land only in a way that minimises damage to access points, roads and tracks on the land; 4. The holder of MC300416 and MC300417 must use the landholder’s land in a way that minimises disturbance to people, livestock and property, and to the users of campsites approved by the landholder; 5. If in carrying out activities associated with MC300416 and MC300417, the holder of MC300416 and MC300417 becomes aware of any potential adverse impact, caused by the activities, on the landholder’s livestock or property, they must immediately notify the landholder of the potential impact;6. If the holder of MC300416 and MC300417 intends to set up camp on the landholder’s land, the holder and the landholder must, before the camp is set up, agree on a location and a plan for managing the camp; 7. If the holder of MC300416 and MC300417 intends to set up camp on land other than the landholder’s land, the holder and the owner or authority responsible for that land must, before the camp is set up, agree on a location and a plan for managing the camp; 8. The holder of MC300416 and MC300417 must, after using a gate on the landholder’s land, return the gate to its original position unless advised otherwise by the landholder; and 9. The holder of MC300416 and MC300417 must negotiate with the landholder in relation to any proposal to construct a gate or gates on the landholder's land in relation to the location, and the standard of work including the type and quality of construction, before work commences on the mining claims.Subject to an agreement otherwise with the landholder, the cost of the work is to be met by the holder of MC300416 and MC300417. 10.
CATCHWORDS:	ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – where the applicant applied for the grant of two mining claims – where hand-mining is proposed on mining claims – where the respondents lodged…