Territory Minerals Ltd v MP Australia Investments Pty Ltd
[2020] QLC 24
•17 June 2020
LAND COURT OF QUEENSLAND
CITATION: Territory Minerals Ltd v MP Australia Investments Pty Ltd [2020] QLC 24 PARTIES: Territory Minerals Ltd
(applicant)v MP Australia Investments Pty Ltd
(objector)FILE NO: MRA009-20 DIVISION: General Division PROCEEDING: Hearing of application for mining lease and objections DELIVERED ON: 17 June 2020 DELIVERED AT: Brisbane HEARD ON: 7 May 2020 HEARD AT: Brisbane MEMBER: JR McNamara ORDER: I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, that ML 20525, ML 20526 and ML 20614 be granted. CATCHWORDS: ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS - QUEENSLAND – where the applicant applied for multiple mining leases to mine antimony ore and gold – where the mining lease applied for formed part of a greater mining project comprising other mining leases – where the objector to the mining lease did not elect to be an active party in the hearing – where there had been significant delays – where the applicant rectified earlier non-compliance with notice requirements – whether mitigation strategies sufficiently minimised risk to fauna
Mineral Resources Act 1989 s 265, s 268, s 269
Tickner v Chapman (1995) 57 FCR 451
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2001) 180 LGERA 99
Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473APPEARANCES: E Hodson, as agent for the applicant
No appearances for the objector
Territory Minerals Limited (TML) is the applicant for three mining leases in the Mareeba mining district as follows:
| Location | Approx. area | Lodged | Mineral | |
| ML 20525 | 17km north east of Dimbulah | 931 ha | 3 March 2006 | Antimony ore; gold |
| ML 20526 | 18km north east of Dimbulah | 121.5 ha | 3 March 2006 | Antimony ore; gold |
| ML 20614 | 19km north east of Dimbulah | 97 ha | 23 February 2009 | Antimony ore; gold |
One objection to the grant of the mining leases was received late and was not accepted. Two submissions in relation to the environmental authority were forwarded to the Department of Environment and Science – however these did not proceed to objections.
The objection the subject of this inquiry is brought by MP Australia Investments Pty Ltd (MPAI) who is the holder of Lot 144 HG 625 (the underlying lot), a lease for grazing purposes. MLA 20525 and MLA 20526 overlap the underlying lot in part. MLA 20614 does not overlap the underlying lot.
MPAI did not elect to be an active party in the hearing. This means it played no active part in the Court process.[1] Nevertheless, I must consider its objection when deciding what recommendation to make on TML’s applications.[2] I must also consider the statutory criteria specified in the Mineral Resources Act 1989 (MRA).[3]
[1]See Practice Direction 4 of 2018 – Procedure for Mining Objection Hearings.
[2]Mineral Resources Act 1989 s 268(3).
[3]MRA s 269(4).
In compliance with orders made 1 May 2020, TML filed submissions addressing the grounds of objection.[4] A hearing was conducted on 7 May 2020. Following the hearing, and as agreed at the hearing, an amended submission was received from TML on 8 May 2020.[5]
Has TML complied with the provisions of the MRA?[6]
[4]Applicant’s submissions filed 6 May 2020.
[5]Applicant’s amended submissions filed 8 May 2020.
[6]MRA s269(4)(a).
The mining lease applications
The resource authority public reports for MLA 20525 and MLA 20526 inform me that the mining lease applications were lodged on 3 March 2006. The majority interest holder at that time was Republic Gold Limited (RGL). The term sought was 15 years. TML assumed 100% ownership of MLA 20525 and MLA 20526 on 24 April 2013.
In relation to MLA 20614 the resource authority public report informs me that the mining lease application was lodged by RGL on 23 February 2009. The term sought was 15 years. TML assumed 100% ownership on 24 April 2013.
Compliance
A delegate of the Chief Executive of the Department of Natural Resources Mines and Energy (DNRME) issued the mining lease notices on 16 July 2019.[7] The Chief Executive cannot issue that notice unless satisfied the applicant is an eligible person and has complied with the requirements for the application.[8]
[7]Ex 6.
[8]MRA s 252(1).
However, the declaration of compliance[9] executed by TML, dated 23 August 2019, notes that TML did not fully comply with the mining lease notice requirements of sections 252A and 252B of the MRA. The details of non-compliance are recorded as follows:
[9]Ex 8.
“We neglected to notify 4 adjoining land holders being
Lot 110 on HG81 (Freehold)
Lot 1 on RP745179 (Freehold)
Lot 510 on HG748 (Freehold)
Lot 3 on HG679 (Freehold)
When this became evident, we immediately notified the 4 adjoining landholders via registered mail on Friday 23 August 2019 and explained how they had been missed in the initial notification and provided them with new time frames for submission of an objection. We respectfully request a application for substantial compliance.”[10]
[10]Ex 8, page 2.
This was not raised as a ground of objection. While it is a significant oversight, the error was rectified, the procedural rights of the potential objectors were afforded in the form of the provision of a notice and an extension of time, and, substantial compliance was accepted by DNRME.
I am satisfied in the circumstances that the error in failing to provide notice to the adjoining landholders concurrent with the public notice has no consequence for the validity of the applications.
There has been an inordinate delay between application and notice to the objector – 13 years in respect of MLA 20525 and 20526, and 10 years in respect of MLA 20614. This will be discussed later in these reasons in relation to MRA s 269(4)(c).
Is the land mineralised or are the other purposes applied for appropriate?[11]
[11]MRA s 269(4)(b).
The applications are to mine gold and antimony. In relation to MLA 20525, the purpose described in the resource authority public report is also for: “environmental dam, living quarters/camp, tailings/settling dam, treatment plant/mill site, workshop/machinery/storage”.[12]
[12]Ex 1, page 5.
The Initial Advice Statement for the Hodgkinson Basin Gold Project dated February 2006 (2006 IAS) was a supporting document to accompany the application for an environmental authority (EA).[13] At the time a single project EA was proposed. The project identified two locations: Tregoora and Northcote. The Northcote site is within EPM 9869. The Tregoora site on EPM 13937 is not the subject of the current applications. The Northcote site appears to encompass MLA 20525. The area of MLA 20526, which is to the south east, is referred to in various documents as Navan Hill. The EA application dated 3 March 2006 for MLA 20525 and 20526 referred to the Northcote-Navan Hill Gold Project. MLA 20416 is contiguous with the western boundary of part of MLA 20525.
[13]Ex 5.
In its amended submission, TML says the 2006 IAS was updated in 2009.[14] Attached to that submission was Appendix 2 titled “Revised Initial Advice Statement” (2009 IAS).[15]
[14]Applicant’s amended submissions, page 5.
[15]Appendix B to the Applicant’s submissions filed 6 May 2020.
The format of the 2009 IAS is the same as the 2006 IAS, that is, the same index, headings and paragraph numbering protocol is followed.
It is apparent that references to the IAS by MPIA are references to the 2006 IAS and not the 2009 IAS.
The 2006 IAS contains a table which indicates the resource for the Northcote project is 334,700 measured in total ounces.[16] The same table in the 2009 IAS estimates 261,000 total ounces. At paragraph 3.8.2 of both the 2006 IAS and the 2009 IAS it says that historically the location was an antimony field and payable quantities antimony exist there.[17] Appendix 1 to the applicant’s amended submission is a document headed “Valuation of the Mineral Assets of Territory Minerals Limited in the Hodgkinson Basin, North Queensland”, dated 4 September 2014.[18] A table at page 2 of the report estimates for Northcote 289,000 ounces, and including antimony, a valuation opinion is expressed for all tenements in the Hodgkinson Basin (of which Northcote is part) including infrastructure, permanent fixtures and chattels, in the range of $8 million to $15.5 million, with a preferred value of $10 million.
[16]Ibid, page 18.
[17]Ibid, page 24, para 3.8.2.
[18]Appendix 1 to the Applicant’s submissions filed 6 May.
In its amended submission, TML says:
“The portion within ML 20525 is mineralised and has two confirmed resource areas noted as Ethel and Black Bess in the map below. There are three areas of resources contained within ML 20526, defined as Navan Hill; Belfast Hill and Limerick also depicted below. Territory Minerals Limited believe that they have demonstrated that the area and shape of the mining leases are mineralised and appropriate.”[19]
[19]Applicant’s Amended Submissions, page 2.
I am satisfied there is evidence the applied for areas are mineralised.
Will there be an acceptable level of development and utilisation of the mineral resources?[20]
[20]MRA s 269(4)(c).
The other purposes for which TML has applied are associated with and are appropriate purposes for mining leases of this nature. It may be that some of those purposes listed in the applications are more relevant to activities at the proposed Tregoora mine, for example, living quarters, as the Northcote-Navan Hill sites appear to be more accessible to Dimbulah.
As noted earlier there has been a lengthy delay between the making of applications and public notification. On the face of it this might raise concern about the capacity or ability of TML to develop the mine.
In its amended submission, TML explains the reason for delay was “in part due to the assumption an ILUA was required; in part due to MLA 20525 and MLA 20526 not having an environmental authority”.[21] The consequences of the assumption regarding an ILUA is not explained further. The submission continues:
“In 2014 an application to amalgamate ML 20525 and ML 20526 onto the ML 20614 EA was made and the application was deemed to be a major amendment requiring notification. The company decided not to proceed with this amendment and the mining leases lay dormant for a period of time having been forgotten by both TML and the Department to 2018 when DNRME requested the Mining Leases progress and an application was made for a standard environmental authority for ML 20525 and ML 20526. This Environmental authority was granted in 2019. The original application for an environmental authority for ML 20614 in 2009 was still applicable to ML 20614. Once the Environmental authority for ML 20515 (sic) and ML 20526 was issued, we were requested to proceed to notification of all 3 leases’.”[22]
[21]Applicant’s Amended Submissions, page 5.
[22]Ibid.
It has been a long held and widely shared objective of government and vision of proponents to streamline the MRA application process to address inefficiency and reduce cost and time delays. It is surprising to say the least that both the applicant and DNRME had forgotten about the applications for (at least) three years.
In relation to capability, TML says in its amended submission:
“Territory Minerals Limited is in a sound financial position. The Financial & Technical capability of a proponent must be submitted to the Department of Natural Resources Mines & Energy together with evidence of capability. When the licence or permit changes hands, the Department requests updated capability of the new part. The updated capability was provided to DNRME at transfer and again prior to notification of the mining leases, due to the time from grant to notification.”[23]
[23]Applicant’s Amended Submissions, page 5.
TML says in its amended submission that the method of mining will be a truck and shovel operation using an excavator and rehabilitating the pit and then move on to the next area of resource.[24] It anticipates six months at each pit. Based on this description of activities and accepting that DNRME applied appropriate rigour to its consideration of capability prior to notification, I accept that TML has the capability to develop the mine.
Is the area an appropriate size and shape?[25]
[24]Ibid, page 2.
[25]MRA s 269(4)(d).
The objector MPAI objects to each of MLA 20525, 20526 and 20614 on the ground of (inappropriate) size and shape. The objections are identical. As noted at paragraph [3] above, MPAI is the holder of the underlying lot, a lease for grazing purposes. MLA 20525 and MLA 20526 overlap the underlying lot in part. MLA 20614 does not overlap the underlying lot.
Rather than saying the size and shape are inappropriate, MPAI says there is no evidence to indicate the size and shape of the mining lease boundaries are appropriate. It says this is particularly so with respect to the southern boundaries which extend into the underlying lot.
MPAI says that in the event the mining leases are granted, MPAI would no longer be able to use all of the leased land for the purpose for which the lease was granted. MPAI continues:
“In circumstances where the footprint of the mining lease area has not been developed having regard to potential mineralisation and infrastructure requirements, the mining lease area would potentially unnecessarily and unreasonably burden the objector’s commercial interests as well as the cattle industry in the Atherton Tablelands more generally.”[26]
[26]Ex 9.
The area of overlap is seen in Figure 1 of TML’s submissions– although it is not measured.[27] The total area of MLA 20525 is 928 ha. It would appear that the overlap area of MLA 50525 is relatively small – perhaps 5% - although it is unknown to me where mining and mining related activity will occur on the lease if granted. The total area of MLA 20526 is 121.4 ha. The overlap is perhaps in the order of 70%. Again, it is unknown to me where mining and mining related activity is likely to occur.
[27]Applicant’s Amended Submissions, page 2.
TML states that it has approached the objector with a view to decreasing the size of MLA 20526 or excluding some of the surface area in order to allay the objectors concerns and minimise the footprint so there would be no adverse impacts on the objectors commercial interests.[28]
[28]Ibid.
The intentions of the applicant are noted and I have no doubt they are made in good faith. However, statements of intention may, in changed commercial circumstances, become burdensome. Further, there is a risk that, subject to any discretion vested in the State, the proposed tenements may pass to another holder who is not even morally bound by the proponent’s statement of intent. I must deal with the applications are they are.
I accept that activities associated with mining can affect a grazing enterprise. However, in the absence of evidence from MPAI, I cannot assess how the mine might interfere with their current or proposed commercial activities.
There is no evidence that the applied for area is not an appropriate size and shape.
Is the term appropriate?[29]
[29]MRA s 269(4)(e).
The term applied for in respect of each lease application is 15 years. There is no evidence that the term is not appropriate.
Does TML have the necessary financial and technical capabilities?[30]
[30]MRA s 269(4)(f).
I do not have evidence of the financial capability of TML. In submissions, TML says:
“The Financial and Technical capability of a proponent must be submitted to the Department of Natural Resources Mines and Energy together with evidence of capability. When the licence or permit changes hands, the Department requests updated capability of the new party. The updated capability was provided to DNRME at transfer and again prior to notification of the mining leases, due to the time form grant to notification.”[31]
[31]Applicant’s Amended Submissions, page 5.
MPAI has not called into question the financial or technical capability of TML. In the circumstance I accept TML have the necessary financial and technical capability.
Has TML’s past performance been satisfactory?[32]
[32]MRA s 269(4)(g).
It would appear that TML holds other resource tenements. There is no evidence before me of a history of non-compliance or action taken under the MRA against the company or any of its directors.
Is there any disadvantage to any other miners?[33]
[33]MRA s 269(4)(h).
It is understood that the underlying EPM 9869 is held by TML and there are no holders of, or applicants for, exploration permits or mineral development licences for land within the lease land.
Will the operations conform to sound land use management?[34]
[34]MRA s 269(4)(i).
MPAI says that mining operations could potentially unnecessarily and unreasonably burden the objector’s commercial interests as well as the cattle industry in the Atherton Tablelands more generally.
The TML submissions say that when, in 2018, DNRME requested the mining leases progress, an application was made for a standard Environmental authority (EA) for MLA 20525 and MLA 20526. The EA was granted in 2019 while the original EA for MLA 20614 from 2009 still applied. The area of the three mining leases will therefore all be subject to a relevant EA.
In the absence of evidence to the contrary it would be improper to assume that in exercising the rights created by the grant of the mining leases, TML would act in defiance of the various statutes, regulations and authorities which apply and would restrict the exercise of such rights.
I am therefore satisfied the operations will conform to sound land use management.
Will the operations cause any adverse environmental impact and, if so, to what extent?[35]
[35]MRA s 269(4)(j).
MPAI challenges the adequacy of environmental investigation undertaken, saying the applicant has failed to provide enough technical and environmental information to enable a regulator to discharge its statutory function.
In that regard, MPAI notes that the mining lease and environmental authority applications are accompanied by an IAS dated February 2006 which: was prepared for a different proponent; does not record the authors identity, qualifications and experience; does not indicate whether the report was peer reviewed before publication; and, is missing Appendixes A, B and C. Appendix A is the Soils and Land Capability Baseline studies, B is the Flora and Fauna Baseline Studies, and C, the Preliminary Waste Rock Drilling Characterisation Results.
According to the applicant’s amended submissions and as noted already, when in 2018 DNRME “requested the mining leases progress”, an application was made for a standard environmental authority for MLA 20525 and MLA 20526, which was granted in 2019 prior to notification. The original application for an environmental authority for MLA 20614 in 2009 was still applicable to MLA 20614.
TML provided with its updated submissions the three updated appendices referred to by MPAI and advised that the IAS first completed by AustralAsian Resource Consultants Pty Ltd (AARC), was revised in 2009, and was completed by Denise Cochrane B.A.Sc. Environment & Geology. It would seem that MPAI were not provided with or were not aware of the 2009 IAS and updated appendices B (dated June 2009), C (dated April 2009) and D (dated January 2009). No explanation was given for the failure to provide the 2009 IAS and appendices to MPAI.
The specific concerns as identified by MPAI relate to criteria MRA s 269(4)(j), (l) and (m) which concern: the adverse environmental impact caused by the operations and, if so the extent thereof; any good reason shown for a refusal to grant the mining lease; and taking into consideration the current and prospective uses of the land, the proposed mining operation is an appropriate land use.
Groundwater
MPAI notes that the 2006 IAS states at 2.4.3:
“A groundwater impact assessment will be completed by Republic Gold Ltd prior to Project development to assess the impacts of surface mining operations on groundwater levels. This study will include a characterisation of the groundwater regime, identifying groundwater bores and their use in the area, assessing the value of the groundwater regime, assessing the impact of the Project on groundwater resources and developing a groundwater monitoring program … Some initial conclusions can be drawn on how groundwater will behave in a mining situation from past mining activities conducted on site and previous local investigations.”[36]
[36]Ex 9, page 6.
MPAI says that, no groundwater impact assessment having been carried out, it would be premature for the regulators to approve the applications until such time as a detailed groundwater assessment has been carried out.
TML says in its amended submission Appendix D to the 2009 IAS, “Ground Water Impact Statement” completed by Rob Lait & Associates Pty Ltd speaks to the objector’s concerns.
RGL engaged Rob Lait and Associates Pty Ltd to undertake a preliminary groundwater impact assessment of proposed open pits in the Tregoora and Northcote deposits. The assessment identified a number of DNRME test bores is the area. The assessment contains modelling of a range of scenarios and considers likely behaviour, for example, sequential rather than simultaneous extraction to consider impact on aquifers, and the draw down influence of open pits.
Although now 11 years old, in the absence of evidence of any different mining approaches and objectives, I have no reason to consider the information and conclusions would be significantly altered. I expect the DNRME test bores will enable the monitoring of impacts, if any. The objection does not identify likely impacts, it simply raised a concern that groundwater had not been considered by the regulator.
I also note the EA standard conditions regarding groundwater: A9, B4 (note 25), B5, B6 (note 29), B8 (note 36), B9 (note 38).
Fauna
The objector notes that section 2.8 of the 2006 IAS addresses fauna. The opening paragraph reads:
“Preliminary searches of wildlife databases for the Project areas identified 16 species that may be present on the Project site that are currently listed as threatened under the Environmental Protection and Biodiversity Conservation Act (1999) (EPBC Act).”[37]
[37]Ex 9, page 7.
MPAI notes that the 2006 IAS provides that baseline fauna surveys suggest that threatened bat populations are outside the MLA boundary and therefore the threatened bat would not be directly impacted by the then proponent’s mining operations. MPAI says the direct and indirect impacts upon native fauna species have not been assessed and are therefore unknown.
TML in its amended submission says the report “Vegetation Mapping & Floristic Descriptions of the Tregoora and Northcote Mining Leases”, dated June 2009, completed by Conics, (the Conics Report) speaks to the objector’s concerns. However, the Conics Report provided appears to contain vegetation assessments only. The introductory paragraph of the report indicates that a Flora and Fauna Assessment report was prepared by AARC in 2005. Somewhat alarmingly at section 3.1 of the Conics Report headed “Review of Previous Flora and Fauna assessments (AARC)”, Conics say the 2005 report contained significant errors in regard to the identification of plant species, and, at best, the reports give the impression of a contrived interpretation of readily available regional ecosystem information only and are of limited application for use in the field. At page 4 of the Conics Report it says:
“Even cursory examination of the vegetation at both sites revealed that the workers who compiled the initial vegetation studies were neither versed in the interpretation of remnant vegetation communities in North Queensland, nor in identification of northern taxa.”[38]
[38]Appendix B to the Applicant’s Submissions received 6 May 2020, page 4.
This was apparently evident to DERM (the department which preceded DES and DNRME) who requested clarification on a number of points regarding flora which are addressed in the Conics Report. In relation to fauna, at paragraph 2.8 of the 2009 IAS, it says:
“Subsequent to a request for additional information from the EPA, additional fauna investigations were conducted by Conics concentrating on the utilisation of the leases by bat species to provide more information on the presence and utilisation of habitats by Microchiropteran species.”[39]
[39]Appendix 2 to the Applicant’s Submissions received 6 May 2020, para 2.8.
In reference to the April 2009 surveys undertaken by Conics, the 2009 IAS says:
“The surveys also determined (based on anecdotal information), that while not all adits in the area were detected, that there are considerable and significant adits used by Microchiropteran bats which are yet to be documented in the area and that the adits within the lease are not the only significant roosts in the area. Details on the significance of the adits and the anecdotal evidence recorded will be provided in the Conics report which is currently in preparation.
Notwithstanding, in accordance with the AARC and Conics’ recommendations, if adits which are currently utilised as a roost are likely to be impacted, Republic will attempt to re-create such an environment using concrete pipes (or similar) in a suitable area outside the boundary of the MLA in consultation with the QEPA. The success of the relocation attempt, if necessary, will be confirmed prior to the commencement of works in the area of the adit. Therefore the proposed operations with appropriate and proven mitigation will have a negligible effect on the Microchiropteran bat fauna of the area.”[40]
[40]Ibid, para 2.8.2.
The Conics Report is headed “Response to Information Request”. The report summarises the information requests sought by DERM “in regard to certain aspects of vegetation and fauna on the sites”. At 2.1 it lists the information requests generic to Northcote and Tregoora mining leases and at 2.1.1 a specific information request for Northcote. None of the information requests concern fauna. The second paragraph quoted at [59] above suggests that there exists “Conics recommendations” about managing potential impact on the roosts. There may be a separate Conics Report regarding fauna but if so it is not included in the material.
TML says:
“When the Department of Environment & Science process this application and they deem the activities not to comply with the eligibility criteria, we would be required to either amend our Environmental Authority or apply for a Site-Specific Environmental Authority and may even be subject to further conditions that the Department of Environment & Science may impose as part of this process which could also potentially require referral for controlled or non-controlled action under the Environment Protection & Biodiversity Conservation Act. Territory Minerals Limited believe that the legislation and the processes put in place by the Department of Environment & Science, serve to protect the environment and can provide the objector with confidence that all considerations are taken into account prior to activities commencing on any mine site.”[41]
[41]Applicant’s Amended Submissions, page 6.
My decision in this matter is a recommendation to the Minister responsible for the MRA. I am not considering an objection to the relevant EAs. It is not open to me to make a recommendation to the Chief Executive of the Department of Environment and Science about whether the EA application should be approved, approved subject to certain conditions, or refused.
In my view, the concerns of the objector and the recognition by the environmental regulator of issues concerning fauna have been advanced since the 2006 IAS. Should the mitigation strategies outlined in the second quoted paragraph at [59] above be adopted then the grant of the MLAs presents minimal risk.
Will the public right and interest be prejudiced?[42]
[42]MRA s 269(4)(k).
In its amended submissions TML says that MLA 20525 is traversed by several unnamed roads and McBean Road, and MLA 20526 is traversed by one unnamed road and McBean Road – and that for the roads to be included in the area of the mining leases a compensation and access agreement must be entered into with the administrators of the roads.[43] It says that agreement was reached with the Mareeba Shire Council and filed with DNRME on 2 February 2020. In relation to MLA 20614, it is traversed by one unnamed road, and an agreement was reached with the Mareeba Shire Council and filed with DNRME on 7 February 2020.
[43]Applicant’s Amended Submissions, page 6.
I am satisfied that the public right and interest will not be prejudiced by the grant of the mining leases.
Has any good reason been shown for refusing the applications?[44]
[44]MRA s 269(4)(l).
The objector has put forward a number of reasons for refusing the applications which have been canvassed earlier in these reasons when considering other criteria.
Taking into consideration the current and prospective uses of the land, is the proposed mining operation an appropriate land use?[45]
[45]MRA s 269(4)(m).
In its objection, MPAI expresses concern that the grant of the mining leases would potentially unnecessarily and unreasonably burden the objector’s commercial interests as well as the cattle industry in the Atherton Tablelands more generally. The objector did not provide further information or evidence regarding current uses and likely impact. I cannot assess how the mine, and access to it, might interfere with the current or proposed grazing enterprise on the underlying lot, or the Atherton Tablelands more generally. I have no basis for finding the mine is not an appropriate land use taking into account current or prospective uses of the land.
Conclusion and recommendation
My task is to weigh the various factors that I must take into account, by bringing my mind to bear[46] upon the “salient facts that give shape and substance to the matter”[47] and considering how all the relevant factors weigh in the balance.[48]
[46]Tickner v Chapman (1995) 57 FCR 451, 495.
[47]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2001) 180 LGERA 99 [44]-[45].
[48]Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473.
I noted the lengthy delay in progressing these mining lease applications – and blame seems to be equally attributed between the applicant and the relevant government agency – although a circumstance possibly unfair to a landholder left uncertain about when, if at all, impacts might occur.
There is sufficient information regarding mineralisation, and I have no reason to doubt the technical and financial capability of TML to conduct the mining activity – particularly as these leases appear to be part of a larger project.
The activity on the mining leases, and access to those areas, may affect the landowners plans to graze, but there is no specific evidence before the Court in order to gauge the impact and effect. Its objection is not specific enough for the Court to draw any conclusion about the actual impact on the objector’s current or proposed grazing activities.
In relation to environmental impact I have referred to concerns regarding fauna which were highlighted in the 2006 IAS and seemingly addressed at the time of the 2009 IAS. TML suggests that DES might yet deem the activities not to comply with the eligibility criteria, which would require TML to either amend the EA or apply for a Site-Specific Environmental authority and might be subject to further conditions that the department might impose. As stated earlier it is not open to me to make a recommendation to the Chief Executive of the Department of Environment and Science about the EA.
Despite these concerns I do not consider this a ground for me to recommend against the grant of the mining leases. It is clear however that engagement should occur with DES prior to grant regarding this aspect of the EA.
The public infrastructure impacts on the application areas have been addressed with the Mareeba Shire Council.
Weighing the relevant factors in the balance, I consider the evidence before the Court favours the grant of the leases.
Order:
I recommend to the Minister for Natural resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, that ML 20525, ML 20526 and ML 20614 be granted.
0
2
1