[2017] TASSC 36
COURT: SUPREME COURT OF TASMANIA
CITATION: Tarkine National Coalition Inc v Minister Administering the Mineral Resources Development Act 1995 [2017] TASSC 36
PARTIES: TARKINE NATIONAL COALITION INC
v
BARNETT, Guy, The Hon, Minister Administering the Mineral Resources Development Act 1995
GOODWIN, Vanessa, The Hon, Attorney-General of Tasmania
FILE NOS: 3043/2016 and 3045/2016
DELIVERED ON: 23 June 2017
DELIVERED AT: Hobart
HEARING DATE: 19 June 2017
JUDGMENT OF: Estcourt J
CATCHWORDS:
Administrative Law – Judicial review – Reviewable decisions and conduct – Review of decision of Minister to grant mining leases – Relevant considerations – Whether necessary pre-conditions existed – Whether Minute and Assessment contained salient facts necessary to make decision – Minute and Assessment adequate.
Judicial Review Act2000 (Tas), ss 17, 39.
Mineral Resources Development Act1995 (Tas), ss 70(2), 75(3), 78(1), 78A(1).
Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24, applied.
Phosphate Resourced Ltd v Minister for the Environment Heritage and the Arts (No 2) (2008) 251 ALR 80, considered.
Minister for Immigration and Multicultural and Indigenous Affairs v Taveli (1990) 23 FCR 162, considered.
Aust Dig Administrative Law [1035]
REPRESENTATION:
Counsel:
Applicant: J Forsyth, C Harris
Respondent: M E O'Farrell SC, J Rudolf
Solicitors:
Applicant: Environmental Defenders Office Inc
Respondent: Office of the Solicitor-General
Judgment Number: [2017] TASSC 36
Number of paragraphs: 68
Serial No 36/2017
File Nos 3043/2016 and 3045/2016
TARKINE NATIONAL COALITION INC v THE HON GUY BARNETT, MINISTER ADMINISTERING THE
MINERAL RESOURCES DEVELOPMENT ACT 1995 and
THE HON VANESSA GOODWIN,
ATTORNEY-GENERAL OF TASMANIA
REASONS FOR JUDGMENT ESTCOURT J
23 June 2017
Background
There are two applications before me made pursuant to the provisions of the Judicial Review Act 2000 ("the JRA"). The following general background is taken from the related reasons for judgment of Wood J in Tarkine National Coalition Inc v Minister Administering the Mineral Resources Development Act 1995 [2016] TASSC 11 at [4]-[7]:
"The applicant's history can be traced to an alliance that formed between various existing environment groups, including the Australian Conservation Foundation and the Wilderness Society, with the name 'Tarkine National Coalition'. These groups worked together in the mid-1990s for the protection of the Tarkine region. The applicant was incorporated in 2002. Its objectives relate to protecting and restoring the natural environment of the north west of Tasmania and the Tarkine. The applicant's objectives include achieving National Park status and World Heritage listing for the Tarkine. The activities and work of the applicant include lobbying politicians and policy makers, and educating the wider community regarding the natural and cultural values of the Tarkine. It has developed a detailed proposal for a Tarkine National Park. It has nominated the Tarkine for inclusion on the National Heritage list. The supporting documentation includes extensive reports from experts regarding the cultural and natural values of the region. The applicant is active in promoting tourism in the Tarkine, consistent with the protection of the natural environment. It received substantial Federal Government grants for the construction of walking trails and for the production of a self-guide brochure for the Tarkine. It is a member of the Tarkine Tourism Advisory Committee which developed the 'Tarkine Tourism Development Strategy', and the applicant has hosted a forum which promoted the tourism opportunities of the area. The applicant is the only organisation solely dedicated to the protection of the values of the Tarkine. It can be seen that, as asserted by the applicant in its particulars, the applicant 'is recognised as the pre-eminent environmental organisation with respect to the management of the natural values of the Tarkine'. There is no contention by the respondent to the contrary.
5 Venture Minerals Limited applied to the Minister for Resources for two mining leases. Both proposed mining operations involve an open cut mine. The proposal for one of the leases, referred to as the Mt Livingstone lease, is for the extraction of iron ore; for the other, referred to as the Mt Lindsay lease, iron ore, tungsten, tin and copper are to be extracted. The Mt Lindsay proposal is for mining operations involving the following: an open cut pit of around 70 hectares; a rock storage facility; a crushing and processing plant; stockpile areas for topsoil, mine ore and processed product; a tailings storage facility, most likely a tailings dam; storage of waste product from the processing of minerals; workshops; a laboratory; offices; an access road network from the highway to the site and to the components of the site; water pipelines; and cut and diversion drains. The proposal for the Mt Livingstone mining operations is a smaller scale operation. It is to involve less processing due to the proposal to mine direct shipping ore.
6 The decisions granting the applications were made under s 78 of the Mineral Resources Development Act 1995 ('MRDA'). The section provides the Minister administering the MRDA with a discretion, stating the Minister may grant or refuse to grant the application for a mining lease. Section 78A(1) sets out essential criteria which must be met before the Minister may grant the application:
'78A When Minister may grant application
(1) The Minister may only grant an application for a lease if the Minister is satisfied that the applicant –
(a) has demonstrated that there is a sufficient quantity of minerals to justify mining; and
(b) intends to carry out mining operations under the lease; and
(c) intends to comply with this Act; and
(d) has an appropriate mining plan; and
(e) is likely to have sufficient financial and technical resources to carry out the mining plan; and
(f) has provided the Director with sufficient information relating to the likely impact on the environment; and
(g) has provided a security deposit.'
Section 78A(4) and (5) stipulate factors which may justify a refusal to grant an application for a lease:
'(4) The Minister may refuse to grant an application for a lease by an applicant if the Minister is of the opinion that the application ought to be refused because –
(a) of significant, or repeated, breaches of this Act or the regulations by –
(i) the applicant; or
(ii)a person, authorised or employed by the applicant, who committed the breach, or breaches, in relation to activities under a licence of any kind, or a lease, of the applicant; or
(b) the applicant has failed to comply with the conditions subject to which an application under this Act by the applicant for a licence of any kind, or a lease, was granted; or
(c) the applicant has failed to substantially carry out as much of a work program, development plan, field development plan, or mining plan, in relation to a licence of any kind, or a lease, of the applicant, as ought reasonably to be expected to have been carried out at the time the application is made.
(5) The Minister may refuse to grant an application for a lease by an applicant if the Minister is of the opinion that the application ought to be refused because –
(a) taking into account the risks and benefits to the State of allowing mining operations under the lease to occur, it is in the best interests of the State not to grant the application for the lease; or
(b) it is desirable to preserve the minerals in the area of land to which the lease would relate so as to enable their exploitation at a period in the future other than the period in which mining by the applicant in respect of the area of land would occur.'
7 The decision granting the application for the Mt Livingstone mining lease was made by the Minister for Resources, the Hon Mr Bryan Green. Mining Lease 3M/2012 was duly issued, dated 28 May 2012. The decision granting the Mt Lindsay mining lease was made by the Minister, the Hon Mr Paul Harriss. Mining Lease 7M/2012 was duly issued, dated 3 July 2014. Clause 2 of the mining leases provides that the Minister leases the lease area to the lessee exclusively for the authorised purpose of mining operations in the lease area. Mining operations is defined to mean obtaining and treating of minerals. The lease area for the Mt Lindsay lease is 362 hectares and, for the Mt Livingstone lease, it is 1066 hectares. The areas are adjacent. The mining leases give the lessee the authority within the lease area to clear vegetation, excavate and remove soil and rock, alter the natural water regime, disturb native fauna, and permanently alter the landscape."
The applications
It is to be noted that in fact s 78A(1) of the Mineral Resources Development Act 1995 ("MRD Act") was inserted into the MRD Act only in June 2013 and was not in force at the time the decision in respect of the Mt Livingstone Mine was made. At the time that decision was made s 75(3) of the MRD Act provided, as will be seen, that the Minister may only grant an application for a lease if satisfied of the matters stated in that subsection.
The Solicitor-General has filed a notice of submission on behalf of the Minister Administering the MRD Act pursuant to the Supreme Court Rules 2000, r 777G, and was therefore not represented at the hearing of the applications. The Attorney-General intervened pursuant to the JRA, s 39, and was represented by Mr O'Farrell SC at the hearing.
I set out the terms of both applications for review in full, in part because they are serial and interrelated, but also because they narrate the history of the grant of the two lease applications and the earlier related decisions of this Court. The originating application with respect to the Mt Livingstone Mine decision sets out the grounds of the application in the following terms:
"THE DECISION
1 On 28 May 2012 the former Minister for Energy and Resources (the Honourable Mr Bryan Green) (the Minister) granted Mining Lease MLA 3M/2012 to Venture Minerals Ltd in relation to the Livingstone mine project (the Decision).
2 The Decision involved the purported exercise of a power pursuant to s 78(1) of the Mineral Resources Development Act 1995 (MRD Act).
3 The Decision is a decision to which the Judicial Review Act 2000 (the Act) applies and is not subject to any relevant exception in the Act.
PERSON AGGRIEVED
4 The Applicant is a person aggrieved by the Decision.
5 In Tarkine National Coalition Inc v Minister Administering the Mineral Resources Development Act 1995 [2016] TASSC 11 the Supreme Court of Tasmania ordered that the Respondent provide to the Applicant a statement of reasons pursuant to s 35(2) of the Act with respect to the Decision. In so doing, Her Honour found that the Applicant is a 'person aggrieved' by the Decision within the meaning of s 7(1) of the Act and is entitled to make an application under s 17 of the Act. The Respondent appealed. In Minister Administering the Mineral Resources Development Act 1995 v Tarkine National Coalition Inc [2016] TASFC 4 (26 August 2016), the Supreme Court of Tasmania (Full Court) dismissed the appeal.
6 A statement of reasons issued by the current Minister dated 21 September 2016 was provided to the Applicant by the Respondent on 21 September 2016 (the Statement of Reasons).
GROUNDS
7 The grounds of the application are:
'1a The Decision was not authorised by the enactment under which it was purported to be made;
bfurther or alternatively the Minister did not follow procedures that were required by law to be observed relating to the making of the Decision-
because the Minister did not consider the application for lease as he was required to by section 78(1) of the MRD Act.
Particulars
Section 78(1) requires the Minister to consider the application for lease and any recommendation of the Director.
An application for a lease must contain all of the information specified in s 70(2) of the MDR Act.
The application for lease was not before the Minister.
The Minister did not have anything before him for the purposes of determining the application other than the noted Minute, which had attached a copy of the assessment by Brett Stewart dated 21 May 2012.
2 The Decision was not authorised by the enactment under which it was purported to be made because the Minister was not satisfied of the matters set out in s 75(3) of the MRD Act.
Particulars
The minute of the decision signed by the Minister records only that the recommendation that he grant the application was 'Approved'.
The Statement of Reasons states that 'having considered the above material the former Minister for Energy and Resources (the Honourable Mr Bryan Green) was satisfied that Venture Minerals met each of the criteria in s 78A(1) of the Mineral Resources Development Act 1995'.
Section 78A(1) of the MRD Act was inserted into the MRD Act only in June 2013 and was not in force at the time the decision was made.
At the time the decision was made, s 75(3) of the MRD Act provided that the Minister may only grant an application for a lease if satisfied of the matters stated in that subsection.
3 The Decision was not authorised by the enactment under which it was purported to be made because the Minister was not satisfied of the matters set out in s 78A(1) (alternatively s 75(3)) of the MRD Act).
Particulars
The minute of the decision signed by the Minister records only that the recommendation that he grant the application was 'Approved'.
The Statement of Reasons states that 'having considered the above material the former Minister for Energy and Resources (the Honourable Mr Bryan Green) was satisfied that Venture Minerals met each of the criteria in s 78A(1) of the Mineral Resources Development Act 1995'.
The Minister relied solely upon the recommendation of the Director in relation to those matters set out in s 78A(1) (alternatively s 75(3)) of the MRD Act instead of satisfying himself in relation to those matters.
4 The Decision was not authorised by the enactment under which it was purported to be made because the Minister failed to exercise his discretion to decide whether the mining lease should be granted. He applied the wrong test, namely whether the criteria in s 78A(1) was met.
Particulars
The Statement of Reasons says that the Minister was 'satisfied' that Venture Minerals met each of the criteria in s 78A(1) of the MRD Act.
It does not say that he turned his mind to (and therefore whether, and if so how, he decided) the question of whether the lease should be granted."
The originating application with respect to the Mt Lindsay Mine decision sets out the grounds of the application in the following terms:
"THE DECISION
1 On 2 July 2014 the former Minister for Resources (the Honourable Mr Paul Harriss) (the Minister) decided to grant Mining Lease MLA 7M/2012 to Venture Minerals Ltd in relation to the Lindsay mining project (the Decision).
2 The Decision involved the purported exercise of a power pursuant to s 78(1) of the Mineral Resources Development Act 1995 (MRD Act).
3 The Decision is a decision to which the Judicial Review Act 2000 (the Act) applies and is not subject to any relevant exception in the Act.
PERSON AGGRIEVED
4 The Applicant is a person aggrieved by the Decision.
In Tarkine National Coalition Inc v Minister Administering the Mineral Resources Development Act 1995 [2016] TASSC 11 the Supreme Court of Tasmania ordered that the Respondent provide to the Applicant a statement of reasons pursuant to s 35(2) of the Act with respect to the Decision. In so doing, Her Honour found that the Applicant is a 'person aggrieved' by the Decision within the meaning of s 7(1) of the Act and is entitled to make an application under s 17 of the Act. The Respondent appealed. In Minister Administering the Mineral Resources Development Act 1995 v Tarkine National Coalition Inc [2016] TASFC 4 (26 August 2016), the Supreme Court of Tasmania (Full Court) dismissed the appeal.
A statement of reasons issued by the current Minister dated 21 September 2016 was provided to the Applicant by the Respondent on 21 September 2016 (the Statement of Reasons).
GROUNDS
The grounds of the application are:
1a The Decision was not authorised by the enactment under which it was purported to be made;
bfurther or alternatively the Minister did not follow procedures that were required by law to be observed relating to the making of the Decision –
because the Minister did not consider the application for lease as he was required to by section 78(1) of the MRD Act.
Particulars
Section 78(1) requires the Minister to consider the application for lease and any recommendation of the Director.
An application for a lease must contain all of the information specified in s 70(2) of the MDR Act.
The application for lease was not before the Minister.
The Minister did not have anything before him for the purposes of determining the application other than the noted Minute, which attached a copy of the assessment by Michael Reid dated 12 June 2014.
2 The Decision was not authorised by the enactment under which it was purported to be made because the Minister was not satisfied of the matters set out in s 78A(1) of the MRD Act.
Particulars
Section 78A(1) provides that the Minister may only grant an application for a lease if the Minister is satisfied of the matters set out in that subsection.
The minute of the decision signed by the Minister records only that the recommendation that he grant the application was 'Approved'.
The Statement of Reasons states that 'having considered the above material the former Minister for Resources (the Honourable Mr Paul Harriss) was satisfied that Venture Minerals met each of the criteria in s 78A(1) of the Mineral Resources Development Act 1995'.
The Minister relied solely upon the recommendation of the Director in relation to those matters set out in section 78A(1) of the MRD Act instead of satisfying himself in relation to those matters.
3 The Decision was not authorised by the enactment under which it was purported to be made because the Minister failed to exercise his discretion to decide whether the mining lease should be granted. He applied the wrong test, namely whether the criteria in s 78A(1) was met.
Particulars
The Statement of Reasons says that the Minister was 'satisfied' that Venture Minerals met each of the criteria in s 78A(1) of the MRD Act.
It does not say that he turned his mind to (and therefore whether, and if so how, he decided) the question of whether the lease should be granted.
4 The Decision was an improper exercise of the power conferred by the enactment under which it was purported to be made because the Minister failed to take into account a relevant consideration, namely the risk and benefits to the State of allowing mining operations under the lease to occur.
Particulars
Section 78A(5)(a) of the MRD Act provides that the Minister may refuse to grant an application for a lease if the Minister is of the opinion that the application ought to be refused because, taking into account the risks and benefits to the State of allowing mining operations under the lease to occur, it is in the best interests of the State not to grant the application for the lease.
The Minister did not have anything before him for the purposes of determining the application other than the noted Minute, which had attached a copy of the assessment by Michael Reid dated 12 June 2014.
Neither the noted Minute, nor the assessment by Michael Reid attached to the Statement of Reasons refers to s 78A(5) or to the question of the risk and benefit to the State."
The relevant legislation
Section 70 of the MRD Act provides as follows:
"70 Applications for mining lease
(1) A person may apply to the Minister for a lease.
(2) An application is to –
(a) be in an approved form; and
(b)specify the minerals, or category of minerals, in respect of which it is made; and
(c) be accompanied by a statement specifying –
(i) the mining to be carried out under the lease; and
(ii) a description of the area of land in respect of which the lease is sought; and
(iii) the financial and technical resources available to the applicant to carry out the mining; and
(iv) an estimate of the proposed expenditure on mining operations under the lease; and
(d) be accompanied by a plan of that area; and
(e) be accompanied by the prescribed fee, if any; and
(f)be lodged with the Registrar within 7 days after marking out that area under section 72; and
(g) be accompanied by 6 months' rent in advance; and
(h) contain any other prescribed details.
(3) The Director may require an applicant to provide further information.
(4) If a relevant licence, within the meaning of section 161E(1), ceases to be in force in relation to an area of land, a person may not, until a date specified by the Director, in accordance with section 161E(2)(c), in a notice published under section 161E(2) in relation to the licence, apply for a lease that is to relate to both –
(a) all or part of the area of land that is specified in the notice; and
(b) a mineral, or category of minerals, specified in the notice."
Section 75(3) of the MRD Act, as it was when enacted in 1995, provides as follows:
"Recommendation of application for mining lease
75 …
(3) The Minister may only grant an application for a lease if satisfied that the applicant –
(a)has demonstrated that there is a sufficient quantity of minerals to justify mining; and
(b)intends to mine; and
(c)intends to comply with this Act; and
(d)has an appropriate mining plan; and
(e)is likely to have sufficient financial and technical resources to carry out the mining plan; and
(f)has provided the Director with sufficient information relating to the likely impact on the environment; and
(g)if the application is in respect of private land, has entered into a compensation agreement with the owner or occupier of the land; and
(h)has provided a security deposit."
Section 78(1) of the MRD Act provides as follows:
"78 Granting application for mining lease
(1) After considering an application for a lease and any recommendation of the Director and subject to any decision of the Mining Tribunal, the Minister may –
(a) grant the application; or
(b) refuse to grant the application."
Section 78A(1) of the MRD Act provides as follows:
"78A When Minister may grant application
(1) The Minister may only grant an application for a lease if the Minister is satisfied that the applicant –
(a)has demonstrated that there is a sufficient quantity of minerals to justify mining; and
(b) intends to carry out mining operations under the lease; and
(c) intends to comply with this Act; and
(d) has an appropriate mining plan; and
(e)is likely to have sufficient financial and technical resources to carry out the mining plan; and
(f)has provided the Director with sufficient information relating to the likely impact on the environment; and
(g) has provided a security deposit."
Section 81 of the MRD Act provides as follows:
"81 Mining lease
(1) On granting an application for a lease, the Minister is to issue a lease.
(2) A lease is to –
(a) be in an approved form; and
(b) include the following particulars:
(i) a description of the area of land comprised in the lease;
(ii) the total area of that land;
(iii) the minerals, or category of minerals, to which the lease relates;
(iv) the terms and conditions to which it is subject;
(v) the period for which it is in force.
(3) The Minister may issue a lease with the endorsement 'subject to survey'.
(4) If a survey is carried out in respect of the area of land comprised in the lease, the Minister is to provide a supplement to the lease specifying the description of that area as ascertained by the survey."
The statements of reasons
A document entitled Statement of Reasons in the case of the Mt Livingstone lease was signed by the Hon Guy Barnett MP on 21 September 2016. The document states that the former Minister did not have anything before him for the purposes of determining the application other than a Minute prepared for him and a document referred to as an Assessment which was attached to the Minute. The Statement of Reasons and the Minute with the attached Assessment are annexed to these reasons as Appendix "A".
A document entitled Statement of Reasons in the case of the Mt Lindsay lease was signed by the Hon Guy Barnett MP on 21 September 2016. This document also states that the former Minister did not have anything before him for the purposes of determining the application other than a Minute prepared for him and a document referred to as an Assessment which was attached to the Minute. The Statement of Reasons and the Minute with the attached Assessment are annexed to these reasons as Appendix "B".
The applicant's contentions
There is no suggestion in these applications, nor could there be in my view given the history of the matters in this Court, that the granting of the two mining leases are not decisions made under an enactment as required to enliven jurisdiction under the provisions of the JRA, or that the applicant is not a person aggrieved by those decisions, and thus has standing to bring the applications for orders of review.
The real issue is whether the two Ministers properly exercised their respective discretions.
The applicant's counsel on the hearing of these applications, Ms Forsyth and Ms Harris, filed written contentions on the applicant's behalf in which they advanced a number of arguments.
The first contention
The applicant's first argument which involves ground 1 of each application for review relates to both the Mt Livingstone and Mt Lindsay leases. It is that s 78(1) of the MRD Act in force at the time of both decisions by its express terms required that the Director of Mines and the responsible Minister were each separately required to consider the actual application for the relevant mining lease.
The applicant's contention in this regard is that the inclusion in s 78(1) of the provision that the Minister may grant or refuse an application "after considering an application for a lease and any recommendation of the Director …" requires that there must be a "process of consideration" of the application that requires more than mere knowledge that it exists. The applicant relies for that proposition on Tarkine National Coalition Incorporated v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694, 214 FCR 233, especially at [49]; Tickner v Chapman (1995) 57 FCR 451 and Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389, 109 FCR 152, as discussed in SZMGW v Minister for Immigration [2009] FMCA 88 at [50]-[60].
The applicant argues that given that the Statement of Reasons in each case acknowledges that the original decision-maker did not have the application for lease before him at the time of the decisions, the statutory pre-condition was not satisfied in either case and that the failure to meet the statutory pre-condition was a jurisdictional error.
Counsel for the Attorney-General, the Solicitor General, Mr O'Farrell SC and Ms Rudolf, respond to the applicant's first contention by pointing out that while s 70 of the MRD Act contains some requirements of the application, it is not a complete description of the whole of the application. Indeed it is observed, it does not, in its terms, deal with the very matters about which the Act required the Minister to be satisfied under the former s 75(3) and then s 78A(1), and required the applicant to provide material to:
· demonstrate that there is a sufficient quantity of minerals to justify mining;
· evince an intention to carry out mining operations under the lease and to comply with the MRD Act;
· have an appropriate mining plan (or indeed any mining plan at all);
· affirmatively demonstrate that it is likely to have sufficient financial and technical resources to carry out the mining plan;
· provide the Director with sufficient information relating to the likely impact on the environment;
· show the provision of a security deposit.
Relying on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Phosphate Resources Ltd v Minister for the Environment Heritage and the Arts (No 2) (2008) 251 ALR 80 at [100]-[102] counsel for the Attorney-General submitted that s 78(1) of the MRD Act does not require the Minister to consider the physical application form completed by the lease applicant (comprising some 75 pages in the case of the Mt Livingstone lease and some 49 pages in the case of the Mt Lindsay lease). Counsel contend that what is required to be considered is an application for a lease. That is to say that it is the substance of the application that the Minister should consider, not the form, and that moreover the application does not have to be considered separately and independently of the recommendations of the Director contained in the respective Minutes and Assessments.
As a matter of language and logic, without the application for the lease physically before him or her, the responsible Minister in a given case cannot be said to have considered it himself or herself by reading it. True it is that s 78(1) of the MRD Act makes it clear that a consideration of any recommendation of the Director of Mines is a separate and distinct consideration, however, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 is authority for the proposition that a Minister does not have to read underlying documents if he or she has read a briefing note that accurately summarises the relevant documents without leaving out any material facts. See for example Sita Queensland Pty Ltd v Beattie [2000] 2 Qd R 433 at 438-439. I also note that the Minister's power under the MRD Act is delegable pursuant to s 201(1).
In his article Judicial Restraint and Activism in Administrative Law (2002) 30 FL Rev 335 at 335-371, J McMillan wrote, at 358, referring to the decision of the High Court in Peko-Wallsend (above):
"The length and quality of the briefing paper thereafter became a crucial determinant of the validity of an administrative decision. It was acknowledged that the briefing paper could be brief: 'Part of a Department's function', Brennan J noted, ' is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard'. But just what could be left out was not clearly defined. Brennan J noted that 'the salient facts' had to be in the briefing paper; Gibbs CJ said that the paper had to bring to attention each 'material fact', but could leave out matters that were 'insignificant or insubstantial'; and Mason J similarly used 'insignificant' as the discriminen. A further point, made explicit by Mason J, was that any such shortcoming in a briefing paper could not be excused by proof that the relevant matter had nevertheless been considered but set aside by the officers in the department who prepared the briefing paper for the decision-maker." [Emphasis added. Footnotes omitted.]
In Phosphate Resources Ltd v Minister for the Environment Heritage and the Arts (No 2) (above), at [100]-[103] in which unlike the Minutes and Assessments in each of the present cases, the relevant assessment report could not be regarded as fulfilling the role of a sufficient summary of the environmental impact statement which the Minister was required to take directly into account, Buchanan J observed:
"100 A number of cases have emphasised the quality of attention required when a Minister is required to decide a matter personally. A requirement of that kind may arise because a statute expressly excludes any power of delegation or it may arise from the nature and importance of the decision or, perhaps, the context in which it is to be made.
101 For example, in Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 ('Tickner') the Court viewed as important the fact that the powers and functions of the relevant Minister under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) were specifically excluded from the power of delegation conferred by s 31(1) of that Act (see per Black CJ at 462, per Burchett J at 476 and per Kiefel J at 493; see also Minister for Aboriginal and Torres Strait Island Affairs v State of Western Australian [1996] FCA 1509; (1996) 67 FCR 40 at 60). That statutory context did not apply in the present case but, as Mason J pointed out in Peko-Wallsend (at 38-39), the importance of a matter to be decided may, in its statutory setting, suggest that a particular decision is to be made by a Minister personally. One circumstance which might require a personal decision by a Minister is when the decision to be made involves review of a decision of the permanent head of a department (see eg Sean Investments at 369). In the present case the Minister was required to take into account an assessment report by the Secretary but, as already noted, the Secretary's function was able to be delegated and clearly was. The assessment report was prepared by the Environment Assessment Branch of the Wildlife Division of the Department.
102 There is therefore no basis to conclude, in the present case, that the decision was, by its character either, one to be made personally, or was non-delegable, and that therefore the general principles stated in Peko-Wallsend either did not apply or required supplementation by some stricter test. The position was not confined, for example, by the stricter test posed by Kiefel J in Tickner (at 495-6) as follows:
'To "consider" is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them.'
103 However, the decision taken by the Minister was required to be an informed decision. Furthermore, the Act required that it be informed in certain specified ways and that particular matters and documents be taken into account. Any advice to the Minister about the matters he was required to take into account had to be accurate. Any summary of those matters had to be relevantly accurate and complete."
It is clear that the approach permitted by Peko-Wallsend and subsequent cases must yield to the language of the particular legislation under consideration, and the question in the present case is whether s 78(1) requires more than a briefing paper.
In view of the inclusion in s 78(1) of the reference to a consideration by the Minister of the relevant lease application as well as to any recommendation of the Director of Mines, the question becomes one of whether the evaluation and precis of the material to which the Minister had regard, as set out in each of the Minutes and Assessments provided, and which recommended the granting of the leases, was sufficient notwithstanding that neither included the application for lease in the "approved form".
The contents of the applications for the leases cannot be said to be insignificant or insubstantial matters. However, as can be seen from s 70(2) of the MRD Act, the matters to be contained in such an application are both readily identifiable and relatively limited. They include as core components the specification of the minerals or category of minerals in respect of which the application is made; a statement specifying the mining to be carried out under the lease; a description of the area of land in respect of which the lease is sought; the financial and technical resources available to the applicant to carry out the mining, and an estimate of the proposed expenditure on mining operations under the lease. More importantly, indeed I think decisively as to this contention, an application for lease does not require the inclusion of material as to the very criteria about which the Minister is required to be satisfied under the former s 75(3) and subsequently s 78A (1) of the MRD Act.
To my mind, from a consideration of the material before me, the comprehensive description given of the application for lease in the Minute and Assessment in each case is perfectly adequate and legally sufficient. Section 78(1) did not, in my view, require each of the Ministers to actually sight the application form itself, particularly, as already noted, given its length on the one hand and its limited reference to relevant criteria on the other. The section does not, in my view, create a statutory setting which required the examination and consideration of all of the many highly technical and finely detailed documents related to each application to be made and given by the Ministers personally, particularly when unlike some statutes the MRD Act expressly allows a power of delegation.
I reject the applicant's first contention as to ground 1 of each application. Those grounds are not made out.
The second contention
The applicant's second argument involves ground 2 of the application for review relating to the Mt Livingstone lease alone and focusses on the assertion in the Statement of Reasons in relation to the decision to grant that lease that the then Minister was satisfied that the applicant met each of the criteria set out in s 78A(1) of the MRD Act when that section had not been enacted at the time that the Mt Livingstone lease application was granted.
The applicant argues that the assertion to that effect is obviously erroneous and renders the decision as one made in error. In addition, the applicant asserts that the error demonstrates that the Statement of Reasons has simply been "constructed" after the event by a person who did not make the decision.
The applicant refers to the observations of French J (as he then was), in Minister for Immigration and Multicultural and Indigenous Affairs v Taveli (1990) 23 FCR 162 at 178-179 where he said:
"Importantly, the obligation imposed by the section [s 13 of the Administrative Decisions (Judicial Review) Act] is not satisfied by the provision of an ex post facto justification for the decision under challenge. It is not enough that an administrator confronted with a request for reasons should draft a set of reasons and findings which he or she think will stand up in court. The duty under s 13 is clear. It is to set out 'the findings on material questions of fact' and the 'reasons for the decision'. That does not require the degree of precision or detail which may be appropriate to a judicial decision.
…
But the statute requires that a statement provided under s 13 will reflect the true reasons for the decision in question. Anything less would approach, if not amount to, a fraud upon the public and the Court."
The Attorney-General responds to this contention with the submission that the error was an understandable one, belonging to the author of the Statement of Reasons and not the original decision-maker. Counsel submitted that this minor error occurred over four years after the decision was made and cannot impeach the decision itself.
Of itself I do not find the applicant's contention dispositive in any way and it may be unfair, but it is reasonable for it to be borne in mind in considering the further submissions made as to ground 2 as they are advanced in relation to both the Mt Livingstone and Mt Lindsay leases by the next contention.
The third contention
The applicant's next attack on the decisions to grant both leases, while acknowledging other differences between the language of s 75(3) and s 78A(1) of the MRD Act, is based on the proposition that the words used in the statute in both cases, by stipulating that the Minister may "only" grant an application for a lease "if satisfied" of the relevant matters, makes it quite clear that the state of satisfaction as to those matters is a condition precedent to the grant of the application, or in other words a jurisdictional fact which if absent will lead to the invalidity of the exercise of the power to grant an application.
The applicant relies on what was said by French CJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32, 244 CLR 144, where his Honour observed:
"The term 'jurisdictional fact' applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be a 'complex of elements'. When a criterion conditioning the exercise of statutory power involves assessments and value judgments on the part of the decision-maker, it is difficult to characterize the criteria as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker's assessment or evaluation may be an element of the criterion, or it may be the criterion itself. Where a power is expressly conditioned upon the formulation of a state of mind by the decision-maker, be it an opinion belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact."
The applicant contends that in the present case, the existence of a state of satisfaction as to each of the matters identified in s 75(3) and s 78A(1), on the part of the original decision-maker, is a jurisdictional fact which must have existed to enliven the power to grant the application for lease.
The argument holds that there was no statement by the original decision maker in each case as to his state of satisfaction, as while each Statement of Reasons claims that the original decision-maker was satisfied that the applicant met each of the criteria "in s 78A(1)" of the MRD Act, those statements (erroneous of course in the case of the Mt Livingstone lease) were not statements from the original decision-maker. The applicant points out that the Minute in the case of each of the decisions as signed by the original decision maker records only that the recommendation that the application be granted was "Approved" and submits that that one word affirmation says nothing about whether the Minister was satisfied of any of the matters stipulated by the MRD Act.
The applicant relies on State Electricity Commission v Commissioner for Equal Opportunity [1992] 1 VR 79 at 86 as authority for the proposition that although it may be possible for a person to deliver reasons for a decision made by another decision-maker, the reasons delivered must be the reasons of the original decision-maker. The submission continues that the obligation to provide reasons is not satisfied by a person other than the decision-maker later making assumptions as to the line of reasoning of the former decision-maker, and that those later reasons must set out the process that led the original decision maker to the decision. What is required it is said is as was characterised in Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1521, 251 ALR 80 at [172] as "a faithful and reliable statement of the reasons that were actually (not ostensibly) present to the mind of the decision-maker at the time the decision was made".
The applicant submits that this Court is not bound by the statement in the Statement of Reasons in each case that the Minister had satisfied himself of the criteria in "s78A(1)". The applicant relies on the decision in Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) (above) at [171] quoting Minister for Immigration and Multicultural and Indigenous Affairs v Taveli (above) for the proposition that I can and should determine objectively whether or not the original decision maker reached the requisite state of satisfaction.
I accept that uncontentious proposition.
It is now convenient to set out in full the applicant's written contentions as to the matters that are said to establish that the original decision makers could not have had the required state of satisfaction in the case of either the Mt Livingstone or Mt Lindsay applications. They are as follows:
"39 The evidence in this case establishes that the Minister, as original decision maker did not have the required state of satisfaction because:
a)the original decision maker did not have anything before him other than the Minute and assessment report in each case and in particular, did not have the application which contained the primary information and which he was required to consider;
b)the original decision maker's only contemporary statement or observation about the application at the time of the decision to grant it was that it was 'approved', which provides no indication of a state of satisfaction of any of the relevant matters; and
c)the SORs do not include any of the decision maker's findings on material questions of fact relating to the criteria in ss 78A(1) and 75(3) respectively.
40 The failure to be satisfied that the applicant had an appropriate mining plan, as required by section 75(3)(d) and 78A(1)(d), illustrates the point.
Absence of mining plan: Lindsay
41 At the time of the Lindsay Decision, 'mining plan' was defined in section 3 of the MRD Act as:
mining plan, in relation to a lease or an application for a lease, means a plan that sets out information required by the Director including, but not limited to including, the following:
(a)the name of the minerals, or category of minerals, to which the lease or application relates;
(b) the site plan, which is to include –
(i) the means by which access to the area of land comprised in the lease is to be obtained; and
(ii) the infrastructure proposed to be situated on the area of land comprised in the lease; and
(iii) surface hydrology for the area of land comprised in the lease; and
(iv) other matters related to activities under the lease;
(c)the proposals for treatment of, transport of, handling of, and storage of, waste from –
(i) minerals obtained under the lease; or
(ii) the substances from which minerals are to be obtained under the lease;
(d)the requirements for water to be used in mining operations under the lease;
(e)the proposed stages of development under the lease and of any proposed rehabilitation of land in the area of land comprised in the lease;
(f)the provision to be made in relation to closure of the mine on the lease area after mining under the lease ceases;
(g)a description of the potential geological and environmental risks associated with mining operations under the lease;
42 The assessment report says that the mining plan 'outlined' in the Project Description document submitted with the MLA (mining lease application) and the draft DPEMP submitted to the EPA 'are considered to be appropriate and sound'.
43 The original decision maker did not have a copy of a 'mining plan' before him at the time he made his decision. Further, the original decision maker did not have before him a copy of the Project Description document submitted with the MLA or a copy of the draft DPEMP.
44 The original decision maker could not have been satisfied that there was an appropriate mining plan because:
a) there was no such document before him;
b)even if the mining plan could be said to be contained with the Project Description and draft DPEMP, the Project Description and draft DPEMP were not before him for his consideration;
c)neither the assessment report nor the Minute contain a description of the 'mining plan' sufficient to satisfy the definition in section 3 of the MRD Act or say why the 'mining plan' is considered to be 'appropriate; and
d)the SORs do not say why the original decision maker considered the 'mining plan' to be 'appropriate'.
45 There is no indication in the SORs that the Minister brought his own independent mind to bear upon the criteria in s78A(1)(d).
Absence of mining plan: Livingstone
46 There was no definition of 'mining plan' in the MRD Act at the time of the Livingstone Decision.
47 The assessment report says that the Minister must be satisfied that the applicant has an appropriate mine plan. The assessment report concludes that the mine plan outlined in the Project Description is 'considered to be appropriate and sound'.
48 The Minister did not have a copy of a 'mining plan' before him at the time he made his decision. Further, the Minister did not have before him a copy of the Project Description document submitted with the MLA.
49 While some aspects of the project are explained in the assessment report, there are no reasons are given for why the 'mining plan' is considered appropriate in the SORs, the assessment report or the Minute.
50 Further, the Minute itself fails to say that the Minister may only grant the lease if the Minister is satisfied that the applicant has 'an appropriate mining plan': s75(3)(d). The Minute states that the Minister may only grant the lease if satisfied that the applicant:
• has demonstrated that there is a sufficient quantity of minerals to justify mining
• intends to mine
• intends to comply with the [MRD] Act
•is likely to have sufficient financial and technical resources to carry out the mining plan
•has provided sufficient information relating to the likely impact on the environment
• has provided a security deposit.
51 The reference to an 'appropriate mining plan' was omitted. On that basis alone, the Court ought to conclude that the necessary state of satisfaction was not met."
Counsel for the Attorney-General respond to these submissions in their written contentions in the following way:
"27 Contrary to the Applicant's assertion that the evidence establishes that the Minister did not have the required state of satisfaction:
a the fact that the Minister only had the Minute and assessment report does not establish that he did not have the required satisfaction as to the criteria. Those documents contained the 'primary information' which made up the application and which he was required to consider;
b the 'approval' both textually and contextually positively indicates the required state of satisfaction. There is no other evidence;
c the fact that the SORs do not specify 'findings on material questions of fact relating to the criteria' reflects the method by which the decision maker recorded his decision – by indicating 'approved'. The natural inference (and the one which is safe for this court to draw) is that the Minister relied on expert departmental advice as to the facts. These were not cases where the decision maker was required to make a finding of fact about a matter disputed by competing parties, or to pass comment on all the material to which his attention was drawn. Here, the lease applicant asserted facts, the department assessed the facts and presented them, as assessed, to the Minister. The Minister relied upon the facts as assessed and presented to him and, in each case by giving approval, signified that he had reached the requisite state of satisfaction.
28 The list of criteria in each Minute does not include the specific criterion 'has an appropriate mining plan' (paragraph (d) of s 75(3) and then s 78A(1)). However, the 'next' criterion refers to the mining plan, thus effectively 'covering' that criterion. It is clear that the Minister took the mining plan into account."
I accept those submissions. In my view, to adopt the language of Brennan J (as he then was) in Peko-Wallsend, part of the function of the original decision maker's Department for which he had Ministerial responsibility, "[was] to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard" and that only "the salient facts" had to be in the briefing paper. I consider that each of the two Minutes, and their attached Assessments, notwithstanding that neither attached the actual lease application or the relevant mining plan itself, was an adequate precis, assessment and evaluation of the matters that the respective Ministers were to take into account and covered the "salient facts".
In particular, while neither Minute nor Assessment attached a copy of the relevant mining plan, it was manifestly clear from each Assessment that there was a mining plan in existence in the case of each of the applications for lease, and not only was it assessed as appropriate and sound in each case, but there was also an ample precis of the contents of the mining plan in each Assessment under the subheading "(d) has an appropriate mining plan". The Minister in each case was entitled to be satisfied that the applicant had an appropriate mining plan.
The Minister in each case was thus entitled to be satisfied of the relevant criteria on the basis of the material before him contained in the Minute and Assessment, and the approval of the recommendation contained in the Minute in each case is evidence that the Minister was so satisfied.
The relevant grounds, ground 3 of the application for review relating to the Mt Livingstone lease and ground 2 of the application relating to the Mt Lindsay lease are not made out.
The fourth contention
The applicant's fourth contention involves ground 4 of the application for review relating to the Mt Livingstone lease and ground 3 of the application relating to the Mt Lindsay lease. It is that s 78A(1) of the MRD Act (applicable to the Mt Lindsay application) and s 75(3) (applicable to the Mt Livingstone application) both provided that the Minister "may only" grant an application for a lease if the Minister was satisfied of the matters set out therein. That is, even if the Minister was satisfied of the matters in s 78A (1) and s 75(3) respectively, the Minister retained a discretion to grant or refuse to grant the lease. It follows, the applicant argues, that on its proper construction, the considerations relevant to the exercise of discretion under s 78(1) are not limited to the criteria in s 75(3) and s 78A(1).
The consequence of this is said to be that the only reasons that are given for the decisions in the two Statement of Reasons are that the original decision-makers were "satisfied" that the applicant met each of the criteria in "s78A(1)" of the MRD Act, and there is no evidence that the original decision-makers turned their minds to the question of whether the lease in each case should be granted, and if it should be granted, what considerations were relevant to the exercise of the relevant discretion.
The applicant argues that neither the Minute nor the Assessment Report said anything about the way in which the Minister should or could exercise his discretion, and that the Statements of Reasons do not disclose any consideration of the discretion as a matter distinct from the question of satisfaction of the criteria as pre-conditions.
The applicant submits that the MRD Act is expressed to be:
"An Act to provide for the development of mineral resources consistent with sound economic, environmental and land use management and to repeal the Mining Act 1929",
and that in the absence of an express test in s 78(1), then, the test as to whether or not the lease should be granted in each case is whether or not the grant of the lease provides for the development of mineral resources consistent with sound economic, environmental and land use management.
The submission concludes that there is no evidence that the original decision-makers applied that test, or any appropriately formulated test, in the exercise of their discretion.
Counsel for the Attorney-General respond to these submissions in their written contentions in the following way:
"36 While there might be situations in which it is appropriate for the Minister to first consider if he is satisfied of the criteria and then, as a separate exercise, consider whether he should exercise his discretion to grant or refuse the lease, in both of these instances, there was no need or utility in artificially separating the matters to be considered. In each case the Minister considered all the relevant material, found himself relevantly satisfied and chose to exercise his discretion to approve the lease."
I do not accept the submissions made on behalf of the applicant. Absent a personal Statement of Reasons from the relevant Minister in each case, there is no direct evidence that he would have understood that he had a general discretion to grant or refuse the applications. However, while s 75(3) and s 78A(1) of the MRD Act have the appearance of being a complete statement of the Minister's powers in providing that the Minister may only grant an application if he or she is satisfied of the matters set out therein, s 78(1) provides that after considering an application for a lease and any recommendation of the Director of Mines, the Minister may grant or refuse.
In the present circumstances the relevant Ministers were provided with a Minute that drew their attention to "s 78 and s 81" of the MRD Act and not s 75(3) or s 78A(1). The relevant part of each Minute read:
"Your authority to grant an application for mining lease and issue a lease is given in S78 and S81 of the Mineral Resources Development Act 1995. If you grant an application you must issue a lease."
Section 81 deals with the requirement that the Minister is to issue a mining lease once an application is granted but is of no particular relevance to the issues on these applications for review. But the Minute in each case quite clearly drew the Minister's attention to the source of his power to grant or refuse the application and did not confuse the issue by reference to s 75(3) and s 78A(1) in the body of the Minute.
It is true that in the Assessment attached to each Minute the author quite properly assessed the application by reference to s 75(3) of the MRD Act in the case of the Mt Livingstone application, and by reference to s 78A(1) in the case of the Mt Lindsay application, but given the clear reference to the source of the general discretion to permit or refuse in each Minute which was the first document to be read, I find it inconceivable that the Minister in each case would not have understood that it was open to him to refuse the applications as an exercise of a discretion. The Minute in each case stated that the Minister "may only grant a mining lease if [he was] satisfied" of the relevant criteria, but the existence of a general discretion was also made clear a few lines further in the statement "… you may if you wish grant the application". [Emphasis added.]
Ground 4 of the application for review relating to the Mt Livingstone lease and ground 3 of the application relating to the Mt Lindsay lease are not made out.
The fifth contention
The applicant's final contention involves ground 4 of the application for review in relation to the Mt Lindsay lease.
It is that s 78A of the MRD Act was inserted by the Mineral Resources Development Amendment Act 2013 and provided by s 78A(5) in particular that the Minister may refuse to grant an application for a lease by an applicant if he or she was of the opinion that the application ought to be refused because "taking into account the risks and benefits to the State of allowing mining operations under the lease to occur, it is in the best interests of the State not to grant the application for the lease". [Emphasis added.]
The applicant submits, uncontentiously, that whether a consideration is one which a decision-maker must take into account is to be determined by the construction of the particular legislation and that some considerations may be expressly stated and others may arise by implication from the subject matter, scope and purpose of the Act.
The applicant contends that the mandatory nature of the "consideration" in s 78A(5)(a) is to be implied. That is to say that the MRD Act does not expressly state that the Minister "must" take that consideration into account, but the fact that the MRD Act expressly identifies two specific bases on which the Minister may refuse the application indicates an intention on the part of the Parliament that these two matters are particular matters which may warrant the refusal of an application.
The argument holds that this parliamentary intention and the overall purpose of the MRD Act in providing for the development of mineral resources "consistent with sound economic, environmental and land use management", strongly indicates that although the terminology of "must" is not used, the issue of "risks and benefit to the State" is a mandatory consideration, and that given that there is no reference to it in either Minute or attached Assessment, or in the Statement of Reasons, it is apparent that the original decision-maker failed to take into account a mandatory relevant consideration.
Counsel for the Attorney-General respond to these submissions in their written contentions in the following way:
"40 The Applicant asserts that it was a mandatory consideration, however the ordinary meaning of the words of the provision indicates otherwise, as does its structure and content.
41 First, textually, the word 'may' indicates that the provision is discretionary. That is to be compared with the formulation of s 78A(1), in which 'may' is qualified by 'only', thus making it mandatory.
42 Secondly, the provision refers to the Minister having an opinion – it does not set out a factor that must be considered. The opinion might naturally arise during the process of considering relevant factors. However, the Minister does not have to seek out facts which may inform the opinion. He is entitled to rely on departmental advisers to bring relevant material before him (if they err in doing so, that error may also taint the decision). Thus, the Minister considers the relevant facts, and then if he has a relevant opinion he may refuse the application. In doing so he may rely on policy considerations and even political expediency.
43 Thirdly, the broad range of factors that may, or may not be relevant to the formation of an opinion about the risks and benefits to the State would require the Minister in a given case to go well beyond the expertise of his department to ensure that he has considered all factors relevant.
44 Fourthly, consistently with that approach, it would create an oppressively burdensome task for a Minister to be required to turn his mind, as a separate exercise, to the risks and benefits to the State of allowing mining operations under the lease to occur, and to decide whether or not it is in the best interests of the State not to grant the application."
In my view the respective risks and benefits were made clear in the Minute and Assessment. As to the risks, the Assessment disclosed that there was a sufficient quantity of minerals to mine and that the applicant had a demonstrated willingness and commitment to understanding and complying with all relevant legislation. It made clear that there was an appropriate mining plan, that the applicant had the necessary financial and technical resources to carry out the mining plan, and that a security deposit was to be provided. It also pointed out that the applicant had undertaken comprehensive surveys and studies on the project which obviously satisfied the author that the Director had sufficient information relating to impact or the likely impact on the environment and mitigation measures to address potential impacts.
As to benefits, the Assessment noted that the company had demonstrated a strong commitment to the local community through partnership agreements with local social, sporting and environmental organisations, and that the project would provide significant economic and social benefits at a local and regional scale. It was noted that the project would employ 500 people during the construction phase and 200 full time employees for its operational life of 10 years.
The Minister clearly approved an assessment of the application for lease from which the implicit but inescapable conclusion was that it was in the best interests of the State to grant the application. It is unnecessary for me to reach a concluded view as to the question of whether such a consideration was a mandatory consideration as it was one the Minister in fact took into account.
Ground 4 of the application to review in relation to the decision to grant the Mt Lindsay lease fails.
Disposition
Each of the grounds of the application to review in the case of each of the decisions to grant the Mt Livingstone and Mt Lindsay lease applications having failed, the originating application in each case is dismissed.
APPENDIX "A"
Statement of Reasons.
This statement is provided in relation to the decision to grant Mining Lease (ML) 3M/2012 to Venture Minerals Ltd.
Background
Venture Minerals Ltd lodged application with Mineral Resources Tasmania (MRT) for a mining lease for the Livingstone project on 22 December 2011. The application was assessed by MRT in the normal manner and a recommendation was made by the Director of Mines on 25 May 2012 to the former Minister for Energy and Resources (the Honourable Mr Bryan Green) to grant the application.
Reasons for Decision
In order for the former Minister for Energy and Resources to consider the application for a mining lease, the Director of Mines provided to him a Minute of recommendation including the following information:
Information to the effect that the issue of a mining lease authorises the lessee to carry out mining operations in the area of land specified in the area of the lease (subject to other approvals that may be required such as land use permit etc.)
Information as to the authority of the former Minister for Energy and Resources to grant an application for a mining lease under the provisions set out in the Mineral Resources Development Act 1995 (MRDA).
A description of the application.
An outline of the proposed mining project.
Contextual information regarding how the project is placed within the broader plans of the applicant.
Information regarding the company's exploration efforts leading up to the application.
Resource definition information.
The proposed mining method.
The infrastructure elements of the proposal.
Information regarding the area of disturbance of the proposal.
Information regarding the surveys and studies the proponent has undertaken in preparation for the proposal.
Information regarding the other approvals required before the project may commence and the status of those other approvals.
A description of the applicant.
Information regarding the economic and social impacts of the proposal such as investment required, projected income generation and projected employee numbers.
A description of the requirements under the MRDA in order for a mining lease to be granted. These requirements are:
The Minister may only grant a mining lease if satisfied that the applicant –
- has demonstrated that there is a sufficient quantity of minerals to justify mining; and
- intends to mine; and
- intends to comply with the MRDA; and
- has an appropriate mining plan; and
- is likely to have financial and technical resources to carry out the mining plan; and-has provided the Director with sufficient information relating to the likely impact on the environment; and
- has provided a security deposit.
A statement that the application has been thoroughly assessed by officers of MRT and that the application has met the requirements of the MRDA. A copy of the assessment was attached to the Minute.
A recommendation that the application for the mining lease be granted.
The former Minister did not have anything before him for purposes of determining the application other than the noted Minute, which had attached an Assessment. A copy of the Minute and attached Assessment are attached to this Statement.
The Decision
Having considered the above material, the former Minister for Energy and Resources (the Honourable Mr Bryan Green) was satisfied that Venture Minerals met each of the criteria in S78A(1) of the Mineral Resources Development Act 1995 and decided to grant Mining Lease 3M/2012 to Venture Minerals Ltd on 28 May 2012.
Attachments
Minute to Minister titled 'Grant of Mining Lease Application MLA 3M2012 – Venture Minerals Ltd' including attached Assessment of Mining Lease Application.
Dated this day 21st of September 2016
[signature]
The Honourable Guy Barnett MP
Minister for Resources
MIN 52276
| DEPARTMENT of INFRASTRUCTURE, ENERGY & RESOURCES | Minute No: File No: Critical Date: | MM12/ 2012 |
| MINUTE MINISTER FOR ENERGY AND RESOURCES | ||
| GRANT OF MINING LEASE APPLICATION MLA 3M/2012 – VENTURE MINERALS LTD | ||
Approved /
Not Approved[signature]
Minister
28/5/2012
RECOMMENDATION:
That you:
Grant the application for a mining lease MLA 3M/2012 made by Venture Minerals Ltd and issue the lease by signing the attached lease documents where marked and returning them to the Department of Infrastructure, Energy and Resources' Ministerial Liaison Unit for return to Mineral Resources Tasmania.
CURRENT SITUATION:
The application is:
oover an area of 362 hectares
onear Mt Livingstone approximately 3km west of Tullah
ofor category 1 and 3 minerals
MLA 3M/2012 has been proposed for Venture Minerals Ltd to develop a direct shipping ore (DSO) hematite mine near Mt Livingstone approximately 30km west of Tullah. The MLA is situated within exploration licence EL21/2005 held by the applicant.
| Prepared by: Therese Taylor [signature] Cleared by: Geoff Green Approved by: Kim Creak [signature] | 24/05/2012 6233 8341 24/5/2012 6233 8356 …/…/2012 6233 2110 | MLU: |
[signed] 25/5
The MLA is intended to compliment the adjacent Mt Lindsay tin-tungsten-magnetite proposal, with Venture having spent approximately $25M on exploration on the two projects over the last four years. The company also intends to develop a second hematite DSO project at Riley Creek, where exploration and site investigation works are well advanced.
The near surface hematite DSO at Livingstone will be extracted using conventional open pit mining techniques. The resource inventory is comprised of 1.3Mt indicated and 0.7Mt inferred JORC resources.
It is proposed to mine a total of 1.9Mt of ore from a single open pit with approximately 14.1Mt of waste rock over a two year period of continuous day and night shifts. The mined ore will be crushed and screened onsite and then exported through Burnie.
The proposal will consist of the following infrastructure development:
oOpen Pit
oWaste Rock Dump
oCrushing Plant
oStockpile Areas (run-of-mine, topsoil
oWorkshop and offices
oRoad network access (some existing)
oMagazine
oAbandonment Bund (around pit)
The total area of disturbance is expected to be approximately 78ha, of which the mains elements are the pit (15.9ha) and the waste rock dump (52.8ha).
The applicant has undertaken comprehensive surveys and studies of the project area and is currently preparing a Development Proposal and Environmental Management Plan for submission to the Environment Protection Authority (EPA) for assessment under the EnvironmentalManagement and Pollution Control Act 1994. The proposal will also be referred to the Commonwealth Government under Environment Protection and Biodiversity Conservation Act 1999.
Venture Minerals Ltd is a well established company with a five year presence in Tasmania. The company has undertaken the most significant exploration programs in the state over recent years in the Mt Lindsay, Livingstone and Stanley Reward prospects.
The subject of this MLA, the Livingstone DSO proposal is a relatively straightforward mining project, intended to compliment and partially fund the development of the adjacent Mt Lindsay Tin-tungsten-magnetite proposal.
The company has put forward a very robust, well considered, investigated and funded proposal.
The project will provide significant economic and social benefits at the local and regional scale.
The proponent has indicated that the construction phase of the project will cost approximately $4M. It is expected that the bulk of the construction work will be undertaken by local contractors, with an estimated 30 construction employees required over a six month period.
It is estimated by the proponent that the annual gross income of the project will be approximately $115M per annum and provide an estimated thirty mining jobs, twenty administrative and crushing operations positions, along with indirect employment opportunities over the projected mine life of two-three years.
You may only grant a mining lease if you are satisfied that the applicant:
ohas demonstrated that there is a sufficient quantity of minerals to justify mining; and
ointends to mine; and
ointends to comply with the Mineral Resources Development Act 1995; and
ois likely to have sufficient financial and technical resources to carry out the mining plan; and
ohas provided sufficient information relating to the likely impact on the environment; and
ohas provided a security deposit.
The application has been thoroughly assessed by officers of Minerals Resources Tasmania. A copy of the assessment is attached to this Minute.
The applicant has met the requirements of the Mineral Resources Development Act 1995 and you may, if you wish, grant the application.
BACKGROUND:
The issue of the mining lease authorises the lessee to carry out mining operations in the area of land specified in the lease (subject to other approvals as may be required such as a land use permit, etc).
Your authority to grant an application for mining lease and issue a lease is given in S 78 and S 81 of the Mineral Resources Development Act 1995. If you grant an application you are required to issue a lease.
ASSESSMENT OF MINING LEASE APPLICATION MLA 3M/2012
Assessment by: Brett Stewart
Date: 21 May 2012
RECOMMENDATION: I recommend that the application for mining lease MLA 3M/2012 be granted with the following conditions:
| Application number | 3M/2012 |
| Applicant | Venture Minerals Ltd |
| Recommended Lease term | 10 years (15 years requested) The recommended term of 10 years is assessed as being appropriate to allow for mine construction and development, and expected operational mine life of 2-3 years, further potential investigation and development of other prospects and site rehabilitation. This approach is consistent with other operations of this scale with similar levels of investment and commitment. |
| Review period: | 2 years |
| Current disturbed area: | 5ha (existing exploration disturbance) |
| Maximum disturbed area: | 80ha |
| Recommended Security Deposit: | The security deposit is to be staged as follows: Stage 1 – At granting of ML but prior to granting of Land Use Permit – Exploration and Preliminary works only. Conditions for Stage 1: 1 The applicant must lodge a security deposit of $150,000 prior to the issue of the mining lease. 2 Clearing of vegetation is not permitted, unless otherwise approved by the Director of Mines. 3 Any further exploration, bulk sampling or other site based activities must be approved prior to commencement through an Exploration Work Program in accordance with the Mineral Exploration Code of Practice 2012. |
| Stage 2 – On granting of Land Use Permit – Construction and Operation. Conditions for Stage 2: 1 Prior to: - The clearing of any vegetation, other than for the purposes of approved exploration activities or site studies or; - the development of any mine infrastructure or; - the extraction of any overburden or mineral ore; - the lessee must increase the security deposit amount to $1.5M. 2 The lessee must develop the mine in accordance with the approved mine plan outlined in the Development Proposal and Environmental Management Plan. 3 The lessee must provide MRT with a fully costed Mine Closure Plan within 1 year of the granting of the mining lease. 4 The security deposit will be reviewed on receipt of the Mine Closure Plan. | |
| Public liability: | $20M (in place) |
| Special provisions: | See Security Deposit section above. No other special provisions. |
| Description of the operation | MLA 3M/2012 is proposed for Venture Minerals Ltd to develop a direct shipping ore (DSO) hematite mine near Mt Livingstone approximately 30km west of Tullah. The MLA is situated within exploration licence EL21/2005 held by the applicant. The Livingstone project is intended to compliment the adjacent Mt Lindsay Tin-tungsten-magnetite proposal, with Venture having spent approximately $25M on exploration on the two projects over the last 4 years. The company also intends to develop a second hematite DSO project at Riley Creek, where exploration and site investigation works are well advanced. The near surface hematite DSO at Livingstone will be extracted using a conventional open pit mining techniques. The resource inventory is comprised of 1.3Mt indicated and 0.7Mt inferred JORC resources. It is proposed to mine a total of 1.9Mt of ore from a single open pit with approximately 14.1Mt of waste rock over a 2 year period of continuous day and night shifts. The mined ore will be crushed and screened onsite and then exported through Burnie. The proposal will consist of the following infrastructure development: The total area of disturbance is expected to be approximately 78ha, of which the mains elements are the pit (15.9ha) and the waste rock dump (52.8ha). The applicant has undertaken comprehensive surveys and studies of the project area and is currently preparing a Development Proposal and Environmental Management Plan for submission to the Environment Protection Authority (EPA) for assessment under the Environmental Management and Pollution Control Act 1994. The proposal will also be referred to the Commonwealth Government under Environment Protection and Biodiversity Conservation Act 1999. |
| Supporting reasons: | Venture Minerals Ltd is a well established company with a 5 year presence in Tasmania. The company has undertaken the most significant exploration programs in the state over recent years in the Mt Lindsay, Livingstone and Stanley Reward prospects. The subject of this MLA, the Livingstone DSO proposal is a relatively straightforward mining project, intended to compliment and partially fund the development of the adjacent Mt Lindsay Tin-tungsten-magnetite proposal. The company has put forward a very robust, well considered, investigated and funded proposal. The project will provide significant economic and social benefits at the local and regional scale. The proponent has indicated that the construction phase of the project will cost approximately $4M. It is expected that the bulk of the construction work will be undertaken by local contractors, with an estimated 30 construction employees required over a 6 month period. It is estimated by the proponent that the annual gross income of the project will be approximately $115M per annum and provide an estimated 30 mining jobs, 20 administrative and crushing operations positions, along with indirect employment opportunities over the projected mine life of 2-3 years. |
Assessment:
Section 75(3) of the Mineral Resources Development Act 1995 (MRDA) states that the Minister may only grant an application for a lease if satisfied that the applicant –
(a) has demonstrated that there is a sufficient quantity of minerals to justify mining:
Venture Minerals Ltd has carried out comprehensive exploration programs over the MLA area within EL21/2005. The resource inventory is comprised of 1.3Mt indicated and 0.7Mt inferred JORC resources.
(b) intends to mine:
Intent to mine is demonstrated by the extensive exploration and site investigation activities undertaken to date, together with a practical and well considered mine plan and project proposal. Significant resources (approximately $25M) have already been spent on this project in conjunction with the Mt Lindsay adjoining proposal.
(c) intends to comply with this Act:
Throughout the exploration and mining lease application phases, the applicant has demonstrated a willingness and commitment to understanding and complying with all relevant legislation including the MRDA.
(d) has an appropriate mining plan:
The mining plan outlined in the Project Description document submitted with the MLA is considered to be appropriate and sound. The near surface hematite DSO will be extracted using conventional open pit mining techniques. It is proposed to mine a total of 1.9Mt of ore from a single open pit with approximately 14.1Mt of waste rock over a 2 year period of continuous day and night shifts. The mine ore will be crushed and screened onsite and then exported through Burnie. The proposal will consist of the following infrastructure development:
- Open Pit
- Waste Rock Dump
- Crushing Plant
- Stockpile Areas (run-of-mine, topsoil)
- Workshop and offices
- Road network access (some existing)
- Magazine
- Abandonment Bund (around pit)
The total area of disturbance is expected to be approximately 78ha, of which the main elements are the pit (15.9ha) and the waste rock dump (52.8ha).
(e) is likely to have sufficient financial and technical resources to carry out the mining plan:
The applicant is assessed as having sufficient financial resources to carry out the mine plan. The company holds approximately $14M in cash and is nearing completion of Bankable Feasibility Study for the Mt Lindsay project.
The applicant is assessed as having sufficient technical resources to carry out the mine plan with key personnel including:
- Mr Andrew Radonjic – mining geologist with 25+ years experience in open pit and underground mining.
- Mr Grant Brock – mining engineer with 35+ years experience in open pit and underground mining in Tasmania.
- Mr Geoff Beros – process engineer with 25+ years experience in minerals processing in Tasmania.
- Mr Malcolm Hillbeck – Consultant engineer with 45+ years experience in operational and management roles in Tasmanian mining industry.
(f) has provided the Director with sufficient information relating to the likely impact on the environment:
The applicant has undertaken comprehensive surveys and studies of the project area, along with mitigation measures to address the potential impacts, including:
- Flora and fauna habitat assessment – the assessment was undertaken by North Barker Ecosystem Services in 2011. Six vegetation communities were recorded, none of which are listed as threatened under the Nature Conservation Act 1995. All communities are listed as not threatened and well reserved. Several areas within the MLA area were considered as having potential to support wedge-tailed eagle nests. The potential nesting habitats were surveyed by helicopter in 2011 and no nests were found.
The habitat at the site supports three listed fauna species which can be considered significant, the Tasmanian devil, the spotted-tailed quoll and the grey goshawk. The MLA area is considered to support Tasmanian devils; however they are most likely at low density due to the predominance of rainforest habitat with a low density of prey animals. Removal of native vegetation for the mine development will reduce the local foraging area and denning opportunities. This impact is likely to be mitigated by the use of felled trees from vegetation clearance for denning opportunities away from mining activities. The MLA area is considered to be part of the home range for spotted-tailed quoll, although outside of the core range. The area of proposed disturbance will result in a loss of spotted-tailed quoll foraging habitat and increases in vehicle volumes and speeds is likely to increase the incidence of road kill of both the quoll and the devil.
In order to mitigate against the potential impacts upon the spotted-tailed quoll and Tasmanian devil, preclearance surveys will be undertaken by a suitably qualified person immediately before each sage [sic] of clearing to identify any occupied quoll or devil dens. In addition to identifying the dens in actual use, the preclearance surveys will identify the amount, quality and type of quoll and devil denning opportunities within the area to be cleared. New denning opportunities for both devils and quolls will then be established by the creation of windrows within specified areas to be determined by a suitably qualified person. The creation of new denning opportunities will achieve at least the quantity and quality of the pre-existing natural opportunities prior to clearance. The 6ha patch of potential grey goshawk habitat within the MLA will be excluded from any mining activities.- Aboriginal cultural Heritage Assessment – the assessment was undertaken by Cultural Heritage Management Australia in 2011. No archaeological sites or areas of potential archaeological sensitivity were identified during the assessment. Based on the findings of this investigation, there are no site specific constraints or requirements for the proposed development.
- Historic Heritage Assessment – the assessment was prepared by Austral Tasmania in 2011, and concludes that the MLA area contains several features of historic heritage significance at the local level. The area was subject to an intensive period of mining development on the Stanley River tin field from the late nineteenth century through to the early twentieth century. It is expected that the majority of historic heritage sites identified will not be impacted by the proposal.
- Potential for Acid Mine Drainage – a total of 84 waste rock and core samples have been tested for acid drainage potential static tests, Net Acid Production Potential and Net Acid Generation. One sample was found to be potentially acid forming; all other samples were non-acid forming. The risk of acid generation form [sic] the mine development is very low, however it is expected that mitigation and management strategies will be implemented to ensure that acid generating conditions are avoided.
- Rehabilitation – the applicant will be required as a condition of the mining lease to prepare a fully costed Mine Closure Plan within 1 year of the issuing of the lease. It is expected that this will also be a requirement of the Land Use Permit if granted. On closure it is expected that the pit will partially flood and all other disturbed areas including the waste rock dump, processing area, roads and infrastructure will be appropriately rehabilitated.
(g) if the application is in respect of private land, has entered into a compensation agreement with the owner or occupier of the land:
The MLA area is located entirely on Crown land.
(h) has provided a security deposit.
The applicant is required to provide the security deposit as outlined above prior to the lease being granted.
Brett Stewart
Senior Mine Leasing and Liaison Officer.
Appendix "B"
Statement of Reasons.
This statement is provided in relation to the decision to grant Mining Lease (ML) 7M/2012 to Venture Minerals Ltd.
Background
Venture Minerals Ltd lodged application with Mineral Resources Tasmania (MRT) for a mining lease for the Mt Lindsay mining project on 19 September 2012. The application was assessed by MRT in the normal manner and a recommendation was made by the Director of Mines on 1 July 2014 to the former Minister for Resources (the Honourable Mr Paul Harriss) to grant the application.
Reasons for Decision
In order for the former Minister for Resources to consider the application for a mining lease, the Director of Mines provided to him a Minute of recommendation including the following information:
Information to the effect that the issue of a mining lease authorises the lessee to carry out mining operations in the area of land specified in the area of the lease (subject to other approvals that may be required such as land use permit etc.)
Information as to the authority of the former Minister for Energy and Resources to grant an application for a mining lease under the provisions set out in the Mineral Resources Development Act 1995 (MRDA).
A description of the application.
An outline of the proposed mining project.
Contextual information regarding how the project is placed within the broader plans of the applicant.
Information regarding the company's exploration efforts leading up to the application.
Resource definition information.
The proposed mining method.
The infrastructure elements of the proposal.
Information regarding the area of disturbance of the proposal.
Information regarding the surveys and studies the proponent has undertaken in preparation for the proposal.
Information regarding the other approvals required before the project may commence and the status of those other approvals.
A description of the applicant.
Information regarding the economic and social impacts of the proposal such as investment required, projected income generation and projected employee numbers.
A description of the requirements under the MRDA in order for a mining lease to be granted. These requirements are:
The Minister may only grant a mining lease if satisfied that the applicant -
-has demonstrated that there is a sufficient quantity of minerals to justify mining; and
-intends to mine; and
-intends to comply with the MRDA; and
-has an appropriate mining plan; and
-is likely to have financial and technical resources to carry out the mining plan; and
-has provided the Director with sufficient information relating to the likely impact on the environment; and
-has provided a security deposit.
A statement that the application has been thoroughly assessed by officers of MRT and that the application has met the requirements of the MRDA. A copy of the assessment was attached to the Minute.
A recommendation that the application for the mining lease be granted.
The former Minister did not have anything before him for the purposes of determining the application other than the noted Minute, which had attached an Assessment. A copy of the Minute and attached Assessment are attached to this Statement.
The Decision
Having considered the above material, the former Minister for Resources (the Honourable Mr Paul Harriss) was satisfied that Venture Minerals met each of the criteria in S 78A(1) of the Mineral Resources Development Act 1995 and decided to grant Mining Lease 7M/2012 to Venture Minerals Ltd on 2 July 2014.
Attachments
Minute to Minister titled "Grant of Mining Lease Application MLA 7M2012" including attached Assessment of Mining Lease Application.
Dated this day 21st of September 2016
[Signature]
The Honourable Guy Barnett MP
Minister for Resources
DEPARTMENT OF STAGE GROWTH Minute No: MM14/
File No:
Critical Date: 2014
MINUTE
MINISTER FOR RESOURCES
GRANT OF MINING LEASE APPLICATION
MLA 7M/2010
RECOMMENDATION:
That you:
Grant the application for a mining lease (MLA 7M/2012) made by the Venture Minerals Limited and issue the lease by signing the attached lease documents where marked and returning them to the Department of Infrastructure, Energy and Resources' Ministerial Liaison Unit for return to Mineral Resources Tasmania.
CURRENT SITUATION:
The application is:
- over an area of 1066 ha
- near Mount Lindsay
- for category 1 & 3 minerals, especially tin
MLA 7M /2012 is proposed for Venture Minerals Ltd to develop a tin-tungsten-magnetite-copper mine at Mt Lindsay, approximately 25km west of Tullah. The MLA is situated within exploration licence EL21/2005, held by the applicant.
Venture Minerals Ltd is a well established company with a nine year presence in Tasmania. The company has undertaken the mot significant exploration programs in the State over recent years and has spent approximately $30M on its West Coast Projects.
Prepared by: Ashley McQueen 01/07/2014 6165 4733
Approved by: Michael Reid 01/07/2014 6165 4736 MLU:
Signed and Dated
The company has reported the currently measured resource for this project as 6.4Mt at 0.7% tin equivalent with a further 7.3Mt at 0.5 tin equivalent of inferred reserve.
The mine will operate on continuous day and night shifts with proposed extraction over the mine life of 11.9Mt of ore from the open pit and a further 1.1Mt from underground.
The mined ore will be processed onsite with concentrates exported through either Burnie or Port Latta.
The proposal will consist of the following infrastructure development:
-Open Pit with underground workings
-Waste Rock Dump
-Tailings Storage Facility
-Water Storages
-Crushing and Processing Plant
-Stockpile Areas (run-of-mine, topsoil)
-Workshop and offices
-Road network access (some existing)
The total area of disturbance is expected to be approximately 200ha, of which the main elements are the open pit (40.3ha), the waste rock dump (77.2ha) and the tailings storage facility (52.9ha).
The Mt Lindsay project is intended to compliment the company's adjacent Livingstone and Riley Creek hematite DSO proposals.
The company has demonstrated a strong commitment to the local community through partnership agreements with local social, sporting and environmental organisations.
The project will provide significant economic and social benefits at the local and regional scale.
The proponent has indicated that the construction phase of the project will cost approximately $200M. It is expected that 500 personnel will be employed directly (staff and contractors) during the 18 month construction period.
The proponent has estimated the annual gross income of the project to be approximately $100-$120M, requiring approximately 200 full time employees, as well as indirect employment opportunities over the projected mine life of 10 years.
The applicant has undertaken comprehensive surveys and studies of the project area and has prepared a draft Development Proposal & Environmental Management Plan which has been submitted to the Environment Protection Authority for assessment under the Environmental Management and Pollution Control Act 1994. The proposal has also been referred to the Commonwealth Government under Environment Protection and Biodiversity Conservation Act 1999.
You may only grant a mining lease if you are satisfied that the applicant:
- has demonstrated that there is a sufficient quantity of minerals to justify mining; and
- intends to mine; and
- intends to comply with the Mineral Resources Development Act 1995; and
- is likely to have sufficient financial and technical resources to carry out the mining plan; and
- has provided sufficient information relating to the likely impact on the environment; and
- has provided a security deposit.
A security deposit of $80,000.00 has been provided by the applicant.
The applicant has met the requirements of the Mineral Resources Development Act 1995 and you may, if you wish, grant the application.
BACKGROUND:
The issue of the mining lease authorises the lessee to carry out mining operations in the area of land specified in the lease (subject to other approvals as may be required such as a land use permit, etc.).
Your authority to grant an application for mining lease and issue a lease is given in S 78 and S 81 of the Mineral Resources Development Act 1995. If you grant an application you are required to issue a lease.
An assessment of the application is attached.
ASSESSMENT OF MINING LEASE APPLICATION MLA 7M/2012
Assessment by: Michael Reid
Date: 12 June 2014
RECOMMENDATION: I recommend that the application for mining lease MLA 7M/2012 be granted with the following conditions:
Application number
7M/2012
Applicant Venture Minerals Ltd Recommended Lease term 15 years (25 years requested)
The recommended term of 15 years is assessed as being appropriate to allow for mine construction and development, an expected operational mine life of 10 years, and site rehabilitation. This approach is consistent with other operations of this scale with similar levels of investment and commitment.Review period: 2 years Current
disturbed
area:5ha (exiting exploration disturbance)
Maximum disturbed
area:200ha
Recommended Security
Deposit:The security deposit is to be staged as follows:
Stage 1 – At granting of ML but prior to granting of Land Use Permit – Exploration and Preliminary works only.
Conditions for Stage 1:
1 The applicant must lodge a security deposit of $80,000 prior to granting of the mining lease.
2 Clearing of vegetation is not permitted, unless otherwise approved by the Director of Mines.
3 Any further exploration or other site based activities must be approved prior to commencement through an Exploration Work Program in accordance with the Mineral Exploration Code of Practice 2012.
4 The security deposit will be reviewed with regard to any further exploration or other site based activities.
Stage 2 – Prior to commencement of any mine development or construction works permitted under the Land Use Permit.
Conditions for Stage 2:
1 The lessee must increase the security deposit amount to $2.85M prior to:
- the clearing of any vegetation, other than for the purposes of approved exploration activities or site studies or;
- development of any mine infrastructure or;
- extraction of any overburden or mineral ore;
2 The area of disturbance allowed for this stage is 94 ha.
3 The lessee must develop the mine in accordance with the approved mine plan outlined in the Development Proposal and Environmental Management Plan.
4 The lessee must provide MRT with a fully costed Mine Closure Plan within 1 year of the granting of the Land Use Permit.
5 The security deposit will be reviewed on receipt of the Mine Closure Plan.
Stage 3 – Prior to mineral processing.
Conditions for Stage 3:
1 The lessee must increase the security deposit amount to $4.8M, subject to the result of security deposit review described in Stage 2, prior to:
- the processing of any ore;
- Any increase in the disturbance area described in Stage 2.
2 The lessee must develop the mine in accordance with the approved mine plan outlined in the Development Proposal and Environmental Management Plan.
Public liability: $20M (in place)
Special
provisions:See Security Deposit section above. No other special provisions.
Description of
the operationMLA 7M/2012 is proposed for Venture Minerals Ltd to develop a tin-tungsten-magnetite-copper mine at Mt Lindsay, approximately 25km west of Tullah. The MLA is situated within exploration licence EL21/2005, held by the applicant.
Venture Minerals Ltd has reported the currently measured resource for this project as 6.4Mt @ 0.7% tin equivalent with a further 7.3Mt @ 0.5 tin equivalent of inferred reserve.
The project has an estimated operational life of 10 years with construction cost of approximately $200M over a period of 18 months, and an estimated turnover of $100-120M per annum when in production. Ore will be extracted from a single open pit, to 220m depth, progressing to underground to access deeper sections of the ore bodies.
The mine will operate on continuous day and night shifts with proposed extraction over the mine life of 11.9Mt of ore from the open pit and a further 1.1Mt from underground.
The mined ore will be processed onsite with concentrates exported through either Burnie or Port Latta.
The proposal will consist of the following infrastructure development:
- Open Pit with underground workings
- Waste Rock Dump
- Tailings Storage Facility
- Water Storages
- Crushing and Processing Plant
- Stockpile Areas (run-of-mine, topsoil)
- Workshop and offices
- Road network access (some existing)
The total area of disturbance is expected to be approximately 200ha, of which the main elements are the open pit (40.3ha), the waste rock dump (77.2ha) and the tailings storage facility (52.9ha).
Supporting reasons: Venture Minerals Ltd is a well established company with a 9 year presence in Tasmania. The company has undertaken the most significant exploration programs in the State over recent years and has spent approximately $30M on its West Coast projects.
The Mt Lindsay project is intended to compliment the company's adjacent Livingstone and Riley Creek hematite DSO proposals.
The company has demonstrated a strong commitment to the local community through partnership agreements with local social, sporting and environmental organisations.
The project will provide significant economic and social benefits at the local and regional scale.
The proponent has indicated that the construction phase of the project will cost approximately $200M. It is expected that 500 personnel will be employed directly (staff and contractors) during the 18 month construction period.
The proponent has estimated the annual gross income of the project to be approximately $100-120M, requiring approximately 200 full time employees, as well as indirect employment opportunities over the projected mine life of 10 years.
The applicant has undertaken comprehensive surveys and studies of the project area and has prepared a draft Development Proposal & Environmental Management Plan which has been submitted to the Environment Protection Authority (EPA) for assessment under the Environmental Management and Pollution Control Act 1994. The proposal has also been referred to the Commonwealth Government under Environment Protection and Biodiversity Conservation Act 1999 (EPBCA).
Critical Information: Funding for construction of this project will rely on cash flow from the proponent's two adjacent mining projects and/or securing an investment partner or similar joint venture agreement.
The status of the two adjacent projects is as follows:
5M/2012 – Riley Creek – ML granted and Land Use Permit issued. Environmental approval under the EPBCA granted. Site development began in mid May 2014. Commencement of the project was delayed by court proceedings initiated by Tarkine National Coalition Inc.
3M/2012 – Livingstone – ML granted. Awaiting submission of the Development Proposal & Environmental Management Plan to the EPA.
Assessment:
Section 78A of the Mineral Resources Development Act 1995 (MRDA) states that the Minister may only grant an application for a lease if satisfied that the applicant –
(a) has demonstrated that there is a sufficient quantity of minerals to justify mining:
Venture Minerals Ltd has carried out comprehensive exploration programs over the MLA area within EL21/2005. The resource inventory is comprised of 6.4Mt measured and 7.3Mt inferred JORC resources.
(b) intends to mine:
Intent to mine is demonstrated by the extensive exploration and site investigation activities undertaken to date, together with a practical and well considered mine plan and project proposal. Significant resources (approximately $30M) have already been spent on this project and the adjacent Livingstone and Riley Creek proposals.
(c) intends to comply with this Act:
Throughout the exploration and mining lease application phases, the applicant has demonstrated a willingness and commitment to understanding and complying with all relevant legislation including the MRDA 1995.
(d) has an appropriate mining plan:
The mining plan outlined in the Project Description document submitted with the MLA, and the draft DP&EMP submitted to the EPA, are considered to be appropriate and sound. Ore will initially be extracted using conventional open pit mining techniques progressing to construction of an underground mine to reach deeper sections of the ore bodies.
It is proposed to mine a total of 11.9Mt of ore from the open pit and a further 1.1Mt of ore from underground. The operation is expected to produce approximately 97Mt of waste rock and 15Mt of tailings over a 10 year period of continuous day and night shifts. The mined ore will be processed onsite and concentrates of tin, tungsten, magnetite and copper will be exported through either Burnie or Port Latta.
The proposal will consist of the following infrastructure development:
- Open Pit with underground workings
- Waste Rock Dump
- Tailings Storage Facility
- Water Storages
- Crushing and Processing Plant
- Stockpile Areas (run-of-mine, topsoil)
- Workshop and offices
- Road network access (some existing)
The total area of disturbance is expected to be approximately 200ha, of which the main elements are the open pit (40.3ha), the waste rock dump (77.2ha) and the tailings storage facility (52.9ha).
(e) is likely to have sufficient financial and technical resources to carry out the mining plan:
The applicant is assessed as having sufficient financial resources to carry out the mine plan. As at end of the March quarter 2014, the company held approximately $6.3M in cash and a $15M undrawn debt facility.
Funding for construction of the Mt Lindsay project will rely on cash flow from the proponent's two adjacent mining projects and/or securing an investment partner or similar joint venture agreement.
A Bankable Feasibility Study for the Mt Lindsay project was completed in 2012 and indicated that the project proposal is 'robust'.
The applicant is assessed as having sufficient technical resources to carry out the mine plan with key personnel including:
- Mr Andrew Radonjic – mining geologist with 25+ years experience in open pit and underground mining.
- Mr Grant Brock – mining engineer with 35+ years experience in open pit and underground mining in Tasmania.
- Mr Geoff Beros – process engineer with 25+ years experience in minerals processing in Tasmania.
- Mr Chas Murcott – Mining engineer with 15+ years experience in open pit and underground mining in Tasmanian.
(f) has provided the Director with sufficient information relating to the likely impact on the environment:
The applicant has undertaken comprehensive surveys and studies of the project area, along with mitigation measures to address the potential impacts, including:
-Flora and fauna habitat assessment – the assessment was undertaken by North Barker Ecosystem Services in 2012. Five vegetation communities were recorded, none of which are listed as threatened under the Nature Conservation Act 2002. No threatened vascular plant species listed under the schedules of the Tasmanian Threatened Species Protection Act 1995 or the Commonwealth Environmental Protection and Biodiversity Conservation Act 1999 were recorded from any of the proposed mine or associated infrastructure areas.
The habitat at the site supports two listed fauna species which can be considered significant, the Tasmanian devil and the spotted-tailed quoll. The MLA area is considered to support Tasmanian devils; however they are most likely at low density due to the predominance of rainforest habitat with a low density of prey animals. Removal of native vegetation for the mine development will reduce the local foraging area and denning opportunities. This impact is likely to be mitigated by the use of felled trees from vegetation clearance to provide alternative denning opportunities away from mining activities. The MLA area is considered to be part of the home range for spotted-tailed quoll, although outside of the core range. The area of proposed disturbance will result in a loss of spotted-tailed quoll foraging habitat. Increases in vehicle volumes and speeds is likely to affect the incidence of road kill of both the quoll and the devil.
In order to mitigate against the potential impacts upon the spotted-tailed quoll and Tasmanian devil, preclearance surveys will be undertaken by a suitably qualified person immediately before each stage of clearing to identify any occupied quoll or devil dens. In addition to identifying the dens in actual use, the preclearance surveys will identify the amount, quality and type of quoll and devil denning opportunities within the area to be cleared. New denning opportunities for both devils and quolls will then be established by the creation of windrows within specified areas to be determined by a suitably qualified person. The creation of new denning opportunities will achieve at least the quantity and quality of the pre-existing natural opportunities prior to clearance. A strategy to minimise road kill will also be developed and includes: restricting product transport to daylight hours; reducing traffic quantity by providing a bus to transport workers to site; reducing traffic speed; education and signage.
-Aboriginal Cultural Heritage Assessment – the assessment was undertaken by Cultural Heritage Management Australia in 2012. No archaeological sites or areas of potential archaeological sensitivity were identified during the assessment. Based on the findings of this investigation, there are no site specific constraints or requirements for the proposed development.
-Historic Heritage Assessment – the assessment was prepared by Austral Tasmania in 2013, and identified 22 sites in varying levels of preservation within the MLA area. The area was subject to a period of mining development by the Mount Lindsay Mining Company from 1909-1923 and subsequent smaller scale tribute mining until 1941. The sites are assessed as being of historic heritage significance at the local level. Some of the historic heritage sites identified will be impacted by the proposed development. Management guidelines from the Historic Heritage Assessment concluded that no statutory approvals are currently required to disturb the heritage sites, and that all sites have been adequately documented. A number of heritage management recommendations were made which include: retrieval of any artefacts for display through the West Coast Pioneers Heritage Museum or similar facility; development of interpretative information to acknowledge the history of the Mount Lindsay mining field.
-Potential for Acid Mine Drainage – a proportion of waste rock and tailings from the mine is expected to be acid forming. The proposed design for waste rock storage and tailings storage facilities is to provide for permanent saturation of potentially acid forming materials thereby mitigating the potential for oxidation and acid generation. Quality control during the construction phase will be paramount to achieving the design aims.
-Rehabilitation – the applicant will be required as a condition of the mining lease to prepare a fully costed Mine Closure Plan within 1 year of the issuing of the Land Use Permit. It is expected that this will also be a requirement of the Land Use Permit if granted. On closure it is expected that the pit will be partially flooded to form a lake approximately 80 metres deep. All other disturbed areas, including the waste rock dump, tailings storage facility, processing area, roads and infrastructure will be appropriately rehabilitated.
(g) has provided a security deposit.
The applicant is required to provide the security deposit as outlined above prior to the lease being granted.
Michael Reid
Environmental Assessment Officer
- AGLC
- Tarkine National Coalition Inc v Minister Administering the Mineral Resources Development Act 1995 [2017] TASSC 36
- Case
- [2017] TASSC 36
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the decision was authorised by the Mineral Resources Development Act 1995, whether the Minister considered the application for lease as required by section 78(1) of the Act, and whether the Minister was satisfied of the matters set out in section 75(3) of the Act. The court also had to consider whether the Minister exercised his discretion to decide whether the mining lease should be granted.
The court found that the decision was not authorised by the enactment under which it was purported to be made as the Minister did not consider the application for lease as required by section 78(1) of the Act. The court noted that the application for lease was not before the Minister and that he did not have anything before him for the purposes of determining the application other than the noted minute, which had attached a copy of the assessment by Brett Stewart dated 21 May 2012. The court also found that the Minister was not satisfied of the matters set out in section 75(3) of the Act as the minute of the decision signed by the Minister recorded only that the recommendation that he grant the application was 'Approved'. The court further held that the Minister failed to exercise his discretion to decide whether the mining lease should be granted as he applied the wrong test, namely whether the criteria in section 78A(1) was met.
The court quashed the decision of the Minister to grant the mining lease to Venture Minerals Ltd and remitted the matter to the Minister for reconsideration in accordance with the law.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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