Re Fitzgerald
[2010] QLC 40
•15 March 2010
LAND COURT OF QUEENSLAND
CITATION: Re Fitzgerald [2010] QLC 0040
PARTIES:Cheryl May Fitzgerald
(applicant)
FILE NO:MRA428-09
PROCEEDING: Application for Mining Lease No 20418
DELIVERED ON: 15 March 2010
DELIVERED AT: Brisbane
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, subject to the future act provisions of the Native Title Act 1993, Mining Lease No. 20418 be granted over the application area for the purpose and term sought by the applicant, with the access thereto as amended by the applicant.
CATCHWORDS: Mining – mining lease – no objections – access – recommendation - Mineral Resources Act 1989, ss 238, 245, 252, 269, 270
APPEARANCES: Not Applicable – Heard on the Papers
On 21 November 2003 Raymond Michael Fitzgerald lodged Mining Lease Application No 20418 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 gold, silver and camp/workshop/dams and treatment plant. Subsequently, on 14 September 2006, Mining Lease Application 20418 was assigned to Cheryl May Fitzgerald (“the applicant”).
No objections were duly lodged to the mining lease application and the draft environmental authority. The Land Court cannot therefore entertain any objection or consider any evidence placed before it by the landholders.[1]
[1] See MRA s.268(3).
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[2] and an email from the applicant,[3] 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.[4] I am satisfied that it is appropriate to proceed with this matter as an application without objection.
[2] See letter of 8 February 2010.
[3] See email of 9 February 2010.
[4] See MRA398-09.
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 together with the solicitor for the landholders.[5]
[5] One of the landholders was also present.
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. 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 24 August 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.[6] I note that the application is over leasehold and reserve land, and that this application is subject to the future Act provisions of the Native Title Act 1993. 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?
[6] See s.252 of the Act.
I am satisfied from the applicant’s evidence that the land applied for is mineralised. I note the applicant’s evidence that they have undertaken previous mining activities in this 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 for 38 years, and she 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 her. 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?
Raymond Michael Fitzgerald held PP20839 at the time the application was made. The holder of EPM 11538 has consented to this application. 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?
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 lodged objection from the landholder. Consent of the holders of the Reserve has been obtained.
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.
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
On 15 February 2010 the Mining Registrar Mareeba advised the Court that the width of the access to this mining lease application has been reduced from 20 metres wide to 10 metres wide. This application proceeds on this basis.
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, subject to the future Act provisions of the Native Title Act 1993, Mining Lease No. 20418 be granted over the application area for the purpose and term sought by the applicant, with the access thereto as amended by the applicant.
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P A SMITH
MEMBER OF THE LAND COURT
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