Wilson v Southedge Daintree Pastoral Company Pty Ltd and Weymouth Pastoral Company Pty Ltd
[2008] QLC 234
•24 December 2008
LAND COURT OF QUEENSLAND
CITATION:
Wilson v Southedge Daintree Pastoral Company Pty Ltd and Weymouth Pastoral Company Pty Ltd [2008] QLC 0234
PARTIES:
In the matter of an Application for Mining Lease 20529 – Application by Kenneth Michael Wilson and objections by Southedge Daintree Pastoral Co Pty Ltd and Weymouth Pastoral Company Pty Ltd to its grant
(applicant) FILE NO: AML00056/2008 DIVISION: Land Court of Queensland PROCEEDING: Hearing of application for mining lease and objections to
its grantDELIVERED ON: 24 December 2008 DELIVERED AT: Brisbane HEARD AT: Mareeba MEMBER: Mrs CAC MacDonald, President ORDERS:
I recommend to the Honourable the Minister for Mines and Energy that Mining Lease 20529 be granted over the application area for a term of five (5) years. The lease should be subject to the following special conditions -
(1)
If, after a period of three years from the date of grant of the lease, the landowners have permission to fill the Northedge Lake, the applicant is to surrender those parts of the lease area shaded grey and hatched on the map attached to this decision (Plan No. 300708-C02) three months prior to the anticipated inundation.
(2)
Should the events set out in condition 1 occur, the applicant must apply for a variation of access to the lease area.
(3)
The applicant does not have a right to renew the lease but may apply for a renewal during the renewal period as defined in s.286(3) of the Act.
(4)
If the applicant applies for a renewal of the term of the lease during the renewal period, the Honourable the Minister consider whether the lease should be renewed having regard to the current and prospective uses of the land comprised in the lease and whether the operations to be carried on during the renewed term of the lease are an appropriate land use and will conform with sound land use management.
(5)
In deciding whether to grant a renewal of the lease the Honourable the Minister take into account whether it is necessary to vary the access to the lease having regard to the current and prospective uses of the land comprised in the lease.
CATCHWORDS:
Mining - Application for lease - criteria to be considered - time, advertising, identification of landowners, area - substantial compliance sufficient - whether area mineralised
Mining - Application for lease - objections by landowner - landowner limited to stated grounds of objection at Court hearing
Mining - Application for lease - Certificate issued by Mining Registrar - whether decision to issue certificate invalid for alleged procedural defects - no breach of statutory requirements
Mining - Application for lease - objection by landowner - whether mining compatible with use of land - residential and tourist proposal but no existing approvals - mining lease recommended for shorter period (five years) with no right of renewal
APPEARANCES: Mr Wilson assisted by Mr L Harris for the applicant
Mr G Houen, Landholder Services Pty Ltd for the
respondent[1] Pursuant to the provisions of the Mineral Resources Act 1989 (the Act), Kenneth Michael Wilson (the applicant) lodged Mining Lease Application 20529 over part of the land described as Lot 8 on DA 362 and Lot 9 on DA 413 in the County of Dagmar, Parish of Mar on 3 April 2006. The land is situated in the Mareeba Mining District approximately 30 kms north northwest of Biboohra. The application sought a lease over 23ha (or 19.3038 ha)[1] for a term of 21 years, for the purpose of mining silver and gold and to establish a camp, treatment plant and water supply.
[1] The area of the application was in contention. This issue is discussed below at [36] to [41].
[2] Objections to the grant of the lease were lodged by Southedge Daintree Pastoral Company Pty Ltd and Weymouth Pastoral Company Pty Ltd (the objectors), the owners of Lot 8 on DA 362 and Lot 9 on DA 413 respectively.
[3] The application and objections were heard in Mareeba. Mr Wilson appeared on his own behalf (assisted by Mr L Harris) and gave evidence in support of his application. Mr G Houen of Landholder Services Pty Ltd appeared on behalf of the objectors and Mr G Quaid, company director, gave evidence in support of the objectors. During the proceedings, I inspected the application area and surrounding country in the presence of the parties. I found that the inspection assisted me in my understanding of the evidence given in this matter.
| Section 269 | |
| [4] | Section 269(4) of the Act provides that the Land Court, when making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, shall take into account and consider a number of specified matters. Each of these matters and, where relevant, the objections are now considered. |
Section 269(4)(a) – whether the provisions of the Act have been complied with
[5] The subject land is freehold land. It is not, therefore, non-exclusive land within the meaning of s.422 of the Act and the native title provisions in the Act do not apply to the proposed mining lease.
[6] On 6 December 2007, the mining registrar, Mareeba District, issued a Certificate of Application for Mining Lease No. 20529. The effect of s.252(1) of the Act is that the mining registrar may only prepare a certificate of application for a mining lease on being satisfied that the applicant is eligible to apply for a lease and that the applicant has complied with the requirements of the Act with respect to the application. The mining registrar's report of 11 March 2008 does not record any issue of non-compliance.
[7] The objectors say, nevertheless, that a number of provisions of the Act have not been complied with.
Non Compliance with s.243
[8] The objectors submit that the application is invalid because it does not comply with s.243 of the Act which provides that -
"Time for application for grant of mining lease
An eligible person who marks out the boundary of land in accordance with this part, may during the currency of the person's prospecting permit, exploration permit or mineral development licence but within 5 business days of so marking out, apply in the prescribed manner for the grant of a mining lease over that land."
[9] The date above Mr Wilson’s signature in part 14 of the application is 22 January 2006. Although Mr Wilson denied at one point that he signed the mining lease application on 22 January 2006, there was no alternative explanation as to how that date was inserted and I am satisfied that Mr Wilson did sign the application on that date. The evidence also shows that he marked out the boundaries of the proposed mining lease on 2 April 2006 (about 10 weeks after the application was signed) and the application was filed in the mining registrar's office on 3 April 2006.
[10] The objectors say that because the applicant had not marked out the boundaries of the land (as required by s.240 of the Act) at the time the application was signed, he was not authorised pursuant to s.243 to apply for a mining lease.
[11] There is no time specified in s.243 or in any other section of the Act as to when an application is to be signed. All that s.243 requires is that –
• a person be an eligible person. The Schedule to the Act provides that an eligible person means, among other things, an adult. Mr Wilson is therefore an eligible person; and • the eligible person mark out the boundary of land as required. Mr Wilson has done that; and • during the currency of the person's permit and within 5 business days of so marking out, the person apply in the prescribed manner for the grant of a mining lease over the land. Mr Wilson marked out the boundary on 2 April 2006 during the currency of his prospecting permit and filed the application in the mining registry on 3 April 2006. However, this ground of objection raises the issue of whether the application was made in the prescribed form.
[12] Section 245 of the Act specifies in considerable detail the procedures to be adopted by an applicant for a mining lease. Relevant to this discussion is s.245(1)(a) which requires that the application be in the approved form.
[13] It is noted that there is no provision in s.245 requiring that the mining lease application be signed – that is a requirement imposed by the approved form which, under s.245(1)(a), must be used for an application.
[14] The approved application form also requires, in sections 10, 11 and 13, that details of the location, external boundaries and surface area as marked out by the applicant be inserted into the form. It is apparent from the evidence set out above that at the time the application form was signed by Mr Wilson in January 2006 he did not have that information available. Presumably, therefore, he inserted those details on or after 2 April 2006 after he marked out the boundaries.
[15] The objectors submitted that Mr Wilson could not properly make the affirmation and declaration of truth required by part 14 of the form in January, when parts of the form had not been completed.
[16] Although it appears that Mr Wilson altered the application form after he signed the form, I do not consider that, in this case, the irregularity is sufficient to invalidate the application. By inserting the information in parts 10, 11 and 13 above his signature and subsequently lodging the completed form in the Mareeba Mining Registry, Mr Wilson may be taken to have confirmed that additional information to be correct.
[17] Alternatively, I consider that there has been substantial compliance with the requirements of s.245 of the Act and, therefore, pursuant to s.392 of the Act the application is to be deemed to have been made in the appropriate way.
[18] The objectors also submitted that the effect of s.269(4)(a) of the Act is that there is an obligation on the Court in this matter to review and consider the validity and the merit of the registrar's decision to accept the application.
[19] It is accepted that s.269(4)(a) of the Act requires the Land Court to be satisfied that the provisions of the Act have been complied with. In my opinion this provision requires the Land Court to consider the objections and the relevant evidence and to form its own conclusion as to whether the provisions of the Act have been complied with. The fact that the mining registrar has not recorded any issue of non-compliance and that s.252(1) indicates that the mining registrar was therefore satisfied that the applicant had complied with the requirements of the Act is only part of the evidence to be considered by the Court. It is by no means conclusive when there is other evidence of non-compliance.
[20] However the submission that the Court has power under s.269(4)(a) to review the registrar's decision to accept the application was not raised in the relevant ground of the objection to the mining lease application. Sections 268(1), (2) and (3) of the Act provide that –
"268 Hearing of application for grant of mining lease
(1) On the date fixed for the hearing of an application for the grant of the mining lease and objections thereto, the Land Court shall hear the application and any objections thereto and all other matters that pursuant to this part are to be heard, considered or determined by the Land Court in respect of that application at the one hearing of the Land Court.
(2)
At a hearing pursuant to subsection (1) the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections (if any) and other matters and shall not be bound by any rule or practice as to evidence.
(3) The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application."
In ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2001] QCA 119, the Court of Appeal held that s.268(3) qualifies s.268(2) so that the apparently wide power given to the Land Court in s.268(1) and (2) to inform itself in any manner as it considers appropriate with respect to the matters set out in s.269(4), is limited by subs(3). The result is that this Court cannot hear submissions or evidence from an objector on a matter not raised in a duly lodged notice of objection (at [5], [6] per Davies JA).
[21] I am not therefore, able to deal with the submission that the Court has the power and obligation to review and consider the validity and merit of the registrar’s decision to accept the application.
Whether the re-issue of the certificate of public notice was advertised as required
[22] Sections 252B(4) and (5) of the Act provide that the applicant for a mining lease must publish a copy of the certificate of public notice (issued under s.252A) in an approved notice circulating generally in the area of the relevant land, at least 15 business days before the last day for lodging objections to the application. Section 252B(9) provides that "approved" means approved by the mining registrar.
[23] Mr Wilson said that he had originally published a copy of the notice in the "Advertiser" on 12 December 2007. Subsequently, the mining registrar re-issued the certificate of public notice on 21 January 2008 because of an administrative error in the Department. Mr Wilson therefore was required to advertise the re-issue which he did by publishing a copy of the notice in the "Tablelander" which, he said, was an approved newspaper circulating generally in the area of the relevant land.
[24] In their notice of objection to the mining lease application the objectors said -
The applicant failed to publish the re-issued certificate of public notice in accordance with s.252B of the Mineral Resources Act, because the advertisement did not appear at least 15 business days before 26 February 2008 which was the last day for objection.
Mr Quaid's evidence indicated that this ground of objection was framed in that way because he had anticipated that the certificate would be re-advertised in the same newspaper in which the certificate had been originally advertised, the "Tablelands Advertiser", which is published in Mareeba. He had searched unsuccessfully for the advertisement in the "Tablelands Advertiser" and then subsequently learned that the certificate was re-advertised in the "Tablelander" which is printed in Atherton. He did not consider that the "Tablelander" was a newspaper circulating generally in the area of the subject land nor in that part of the Mareeba Mining District.
[25] Mr Houen submitted that -
• re-advertising in a different newspaper published in and circulating from a more distant town and district had the potential to limit the opportunity for public knowledge of the re-issue and reduce the scope for interested persons to object; • even if the Atherton paper is an approved newspaper for applications in the Mareeba Mining District as a whole, it was not an appropriate vehicle for this notice which concerned land north of Mareeba. The Atherton paper was not a paper circulating generally in the area of the subject land. The Mareeba paper was more appropriate; • the Land Court should consider whether the re-advertising was in accordance with the Act.
[26] Mr Wilson said that he had chosen to re-advertise in a different newspaper to avoid any confusion between the original advertisement and the re-advertisement. He had consulted the Mareeba mining registrar and it was agreed that he would use the Atherton newspaper which covered the whole of the local area.
[27] I have accepted that Mr Wilson had a genuine reason for choosing to re-advertise in a different newspaper and I do not consider that it has been established that he was seeking to limit the public's opportunity to find out about the re-issue of the certificate of public notice.
[28] There is not sufficient evidence before me to enable me to decide whether the "Tablelander" is a newspaper circulating in the area of the relevant land – Mr Wilson says that it is and Mr Quaid says that it is not. Neither party produced any objective evidence such as circulation figures to support their assertions. The evidence does establish that the Mareeba mining registrar agreed that the advertisement of the re-issued certificate could be published in the Atherton newspaper. I consider therefore that, in the circumstances, it can be inferred that the "Tablelands Advertiser" is an approved newspaper circulating in the area of the relevant land within the meaning of s.252B(4). Moreover, if there is more than one approved newspaper circulating generally in the relevant area, the Act does not require the applicant to advertise in the paper with the highest circulation in a particular sub-district. I consider, therefore, that the applicant has fulfilled the statutory requirements for advertising the re-issued certificate of public notice.
Whether the administration of the application was defective
[29] The notice of objection states that -
• there was a delay of 19 months between the mining registrar's receipt of the mining lease application on 3 April 2006 and the issue of the certificate of application on 6 December 2007. The certificate of public notice was issued on the same day. There was no reason for the delay; • the delay has caused the owners of the land injury and inconvenience because of the uncertainty created by the application which has unnecessarily jeopardised the development plan for the area. The proposed mine is incompatible with the planned residential and tourist development on the land into which many years of time and millions of dollars have been invested. The proposed mine is in conflict with the planned residential use of the land and with the water storage which would submerge the access route.
[30] Mr Houen submitted that the registrar should formally accept or reject the application within such timeframe as is reasonable to complete the necessary checks and administrative procedures.
[31] There is no express time limit specified in the Act within which the mining registrar must issue a certificate of application or certificate of public notice. Nor is there any general provision requiring the registrar to issue those certificates within a reasonable time. Although it is desirable that mining lease applications be processed as quickly as practicable, in the absence of any statutory obligation to proceed within a specified time I do not consider that the alleged delay by the mining registrar is a matter which invalidates the registrar's decision to accept the application. In any event, since there is no evidence as to the reason for the lapse of time between the receipt by the mining registrar of the application and the issue of the certificate of application, I am unable to say that an unreasonable time has elapsed.
[32] My conclusions in the preceding paragraph mean that it is unnecessary for me to consider the impact of the alleged delay on the development plans for the land. The submission as to the incompatibility between the proposed mine and the owners’ development plans for their land is dealt with below in relation to the discussion of s.269(4)(m).
Owners of the land and land area not correctly identified
[33] The objectors have pointed out that in the mining lease application the applicant identified the owner of Lot 8 on DA 362 as Weymouth Pastoral Company Pty Ltd and the owner of Lot 9 on DA 413 as Southedge Daintree Pastoral Company Pty Ltd. Those statements are not correct. Lot 8 is owned by Southedge Daintree Pastoral Company Pty Ltd and Lot 9 is owned by Weymouth Pastoral Company Pty Ltd.
[34] Mr Houen submitted that s.245(1)(d) of the Act requires that a mining lease application shall describe all parcels of land the subject of the application and give the names and addresses of the owner or owners of that land.
[35] Although there clearly has been a mistake by Mr Wilson in that he 'swapped' the owners of Lots 8 and 9, there is no evidence that the owners of those lots have been disadvantaged in any way by the errors. I consider that there has been substantial compliance with the requirement of s.245(1)(d) that the name and address of the owners of the land be specified. Therefore pursuant to s.392 of the Act the application is to be deemed to have been made in the appropriate way.
[36] The objectors also state that there are three different statements of the area of the application – the official register report states that it is 23.1796 ha, the applicant in part 3.5 of the application states it is 19.3038 ha and at part 13.3 the applicant states that the area is 23 ha.
[37] Mr Houen submitted that s.246 of the Act requires, inter alia, specified markings and accurate measurements of distances and compass bearings, and accurate calculation of the area of the land. He went on to say that the deputy mining registrar's report, which was exhibited to Mr Quaid's affidavit, demonstrates that the area of that application was incorrectly stated in the application. Mr Houen also said that Mr Quaid's affidavit (paragraph 25) and Exhibit GQ3 also showed that the applicant made similar errors when he previously applied for the same land, via MLA 20481. In that case the defects resulted in the application being rejected.
[38] Section 246 of the Act does not in its terms require the application area to be stated. However, part 3.5 of the application form requires the applicant to state the size of the area applied for.
[39] The copy of the application forwarded to the Land Court indicates that in part 3.5 the size of the area originally identified was 23 hectares. This appears to have been struck through and a different figure written above, 19.3038. Mr Wilson has sworn, in a statutory declaration which was forwarded to the Court in response to the grounds of objection filed by the objectors, that he originally inserted "23" (hectares) in part 3.5 of the application. He says that he believes that an unknown person has subsequently crossed a line through the number 23 and inserted the number 19.3038. These alterations were not done, says Mr Wilson, with his knowledge or consent and his only conclusion was that there must have been an administrative error beyond his control. Further he says that the description of 23 hectares in part 3.5 is in substantial compliance with the true area to be applied for, which is 23.1796 hectares.
[40] It appears from the deputy mining registrar's field inspection report exhibited to Mr Quaid's affidavit, that the deputy mining registrar considered that the area applied for was 19.308 hectares, (the amended area) and the report is compiled on that basis. However, I do not consider that the deputy mining registrar's report is of any assistance in identifying how the alteration was made from 23 to 19.308 hectares.
[41] While it is unlikely that any third party altered the form, there is no evidence indicating how the alteration to part 3.5 of the application form occurred. Mr Wilson is adamant that he did not make the alteration and, consistently with his evidence that he applied for 23 hectares, the surface area required is identified in part 13.3 of the form as 23 hectares. Since there is no evidence to the contrary, I have accepted Mr Wilson’s evidence and will deal with the application on the basis that 23 hectares was the area applied for. In those circumstances the discrepancy between the area applied for, 23 hectares, and the area identified in the official report namely 23.1796 hectares is not I consider sufficient to invalidate the application and again I consider that there has been substantial compliance with the requirements of the form that the size of the application area be stated. Consequently, pursuant to s.392 of the Act the application is to be deemed to be made in the prescribed way.
[42] Mr Houen also submitted that the registrar issued the certificate of public notice in breach of the Act. He said that the issue of the certificate of application by the registrar pursuant to s.252 of the Act enables the issue of a draft environmental authority. The draft environmental authority was issued on 26 April 2006 and received by the mining registrar on 8 May 2006, that is before the issue of the certificate of application on 6 December 2007. He submitted therefore that the Land Court should review the registrar's decision to accept the application.
[43] These issues were not raised in the notice of objection and therefore, as explained above, I have no power to deal with them.
[44] For the same reason, I am not able to deal with Mr Quaid's evidence that he had been informed by Mr Houen that, in response to a Freedom of Information application, information had been given to Mr Houen that the mining lease application was not located as described, that it did not comply with the Mineral Resources Act and that the application posts varied from the description supplied by the applicant.
Section 269(4)(b) – whether the area of land applied for was mineralised or the other purposes for which the lease is sought are appropriate
[45] In their notice of objection, the objectors stated that the grant of lease was not justified because -
• Nothing in the application demonstrates that the land is mineralised. • The history of the previous mining and the applicant's own statements strongly suggest it has been mined out. • As the holder of a prospecting permit the applicant did not carry out the sampling and testing for which he was authorised and as a result has no evidence that any mineral deposits still exist within the land. There are only vague details of active mining starting 106 years ago and ending about 63 years ago. • The applicant has presented no evidence that the various persons who have taken an interest in the site in the last 63 years including those who were granted leases have actually mined or produced any gold. The physical appearances of the old workings is consistent with no mining activity for many many years. • The past history and current appearance of the mine are consistent with it having been completely worked out by about the mid-twentieth century, after which numerous people have investigated it and in some cases held leases over it or parts of it but none of them found anything worth mining and none of them opened up new sites. • The applicant's mining plan only describes reopening the old workings. He does not suggest that he knows of or will explore or even hopes to discover any fresh deposits in the application areas. Those who held leases over the site in recent decades did not open any new workings. • Because the application is based exclusively on reopening the old shaft with half a hectare for a treatment plant, the applicant has failed to justify a purpose for the land included in the application as required by s.245(1)(o)(A) of the Act. [46] The application area is the site of a former gold mine, the Freedom Mine. The objectors' evidence established that the mine had not been operated since 1942. Five Exploration Permits had been issued over the land between 1957 and 1989, but none of the permit holders subsequently applied for mining leases over the land. Three mining lease applications were lodged between August 1987 and September 2004, two by the current applicant Mr KM Wilson. Mr Wilson abandoned one of his applications and the second was rejected because the applicant had not described the external boundary properly. The third application by another party was rejected for reasons which were not in evidence. Nine prospecting permits have been granted over the property since 1991. The objectors submitted that it could be inferred that none of these permit holders considered that it was worthwhile proceeding to mine the application area.
[47] Mr Quaid's evidence was that the Freedom Gold Mine and a small tin mine were the only two mining authorities which have ever existed within the external boundaries of the Southedge aggregation of approximately 40,000 hectares. In the area surrounding Southedge there was one lease almost 11 km away and another 15 km away and the nearest areas with any concentration of former or existing mining leases were about 19 km away. He did not consider that the area was generally known for the production of gold, silver and tin.
[48] Mr Wilson said that gold and silver had been produced from the area in the past and the application was in close proximity to other hard rock and alluvial tenements. The area was generally known for the production of gold and silver. He said that he had taken a sample from a mullock heap at the site of the old mine and that an assay report which he tendered as evidence showed that the sample contained gold and silver. Further he had read the old mining journals and they showed that one of the shafts of the old mine had been backfilled with material that was not of as high grade as other material that had been extracted from the site. In those days the miners used a pick and shovel and pack horse and if they could not see gold in the rock they did not mine it. With modern production methods it would be possible to extract the gold remaining in the site. Mr Wilson also said that the mine had been highly successful throughout its working life and government mining journals document the fact that all ore producing mines stopped at the 75 foot level because the miners were not able to de-water the land and not because of the lack of ore body. Mr Wilson said that if the mine had been worked out as the objectors submitted then the ore recovered would have declined to virtually nil on the mineral resources return and have inconsistent grades until it was abandoned. Mr Wilson believed that the reasons the mine was abandoned were unrelated to its mineralisation.
[49] I consider that the evidence concerning the history of the exploration permits, prospecting permits and applications for mining leases over the Freedom Gold Mine is equivocal and does not prove one way or the other whether the application area is currently mineralised. There was no evidence explaining why past permit holders had not sought leases to mine the site. Those reasons could range from lack of financial capacity of the permit holder to inability to obtain an economic return on the sale of any minerals extracted. In the absence of such evidence any conclusion that mining did not proceed because of lack of ore is merely speculative.
[50] The evidence that mineralisation is present today is now considered. Essentially there is one assay report which establishes the presence of gold and silver in the sample taken by Mr Wilson from the mullock heap on the surface of the land. It appears that no samples were taken from beneath the surface of the land. Further Mr Wilson says that quartz expressions on the site demonstrate that gold is present.
[51] In addition, the application area covers the old Freedom Mine area where gold was successfully extracted in the past. Even though the mine has not been worked for many decades its presence indicates that the area was mineralised and, when that evidence is added to Mr Wilson's evidence, I consider it is likely that the area remains mineralised today. On balance therefore I have come to the conclusion that there is sufficient evidence to establish that the area is mineralised.
[52] The other purposes for which the lease was sought were to establish a camp, treatment plant and water supply. Mr Wilson supplemented the information contained in the application as to the use he intended to make of the application area to indicate that he would construct living quarters, a machinery shed, a tailings dam and a mill site for processing ore. He would also construct a magazine for storing explosives for use in the mine. For safety reasons it was necessary to include an elevated section in the application area to ensure adequate communication. I consider that the proposed use of the site is consistent with the mining operations proposed and is appropriate for the purposes for which the lease is sought.
Section 269(4)(c) - If the land applied for is mineralised, whether there will be an acceptable level of development and utilisation of the mineral resources within the area applied for
[53] Mr Wilson indicated that work would commence once the lease was granted, the wet season permitting. He said that the mining operation would be a 2 or 3 man operation and that it was not intended to progress past that size.
[54] The proposed program of works set out by Mr Wilson in a statement attached to his mining application indicates that he has a sound plan for mining the site which would lead to his extracting approximately 10 tonnes per week once production is attained.
Section 269(4)(d) – whether the land and the surface area of the land are of an appropriate size and shape
[55] Mr Houen submitted that the applicant had failed to give valid reasons justifying the size and shape of the application.
[56] As discussed above, the application area is 23.1796 hectares. Mr Wilson said that the boundaries of the lease had been determined by the area of potential mineralisation and the requirements associated with the mining operation, including water, safety, access and communication infrastructure. A sufficient area is required to enable the resource to be mined and also to have adequate ground to construct the tailings dam and to connect to a viable water supply. Mr Wilson said that he had discovered a natural spring on the southern end of the lease area which it was necessary to include in the application area to enable him to access a constant water supply during the dry months. This would be the only viable water supply during that period and a reliable water supply was necessary to ensure the viability of the proposed mining operation. It was necessary to locate a communications tower on the highest point for efficient and safe communication capability in the event of an emergency. Workplace health and safety issues need to be addressed in respect of the employees on the site and, as mobile telephone reception is not available on the lower part of the proposed area, the hilltop area was included primarily to provide communication access to emergency services should the need arise. In addition, ore has been identified at the top of the hilltop at the south-eastern boundary. He had pegged out the surface area to ensure that all the ore body had been included in order to avoid the necessity of having to seek additional area in the future.
[57] The evidence did not disclose precisely the extent of the proposed mining area. The mining area appears to be concentrated on the Freedom Mine works, but Mr Wilson said that he also intended to mine the alluvial content of the dry river bed on the western side of the lease. Further, there was an area of approximately 50 metres of alluvial ground from the shaft to the river which had never been worked and which, he believed, would produce significant results. He also said that he had discovered some ore in the south- east corner of the application area but there is no information as to its extent. Although the area applied for is larger than the proposed workings, I consider that Mr Wilson has supplied good reasons justifying the extent and layout of the area sought. However, the landowners' grounds for objection refer to a conflict between the proposed mine and the owners' proposals for future development of the land. These objections are considered further below. It is sufficient to say at this point that the land and surface areas sought are of an appropriate size and shape for the purposes of the development and utilisation of the mineral resources in the area applied for.
Section 269(4)(e) – whether the term sought is appropriate
[58] The applicant has sought a lease for a term of 21 years. Mr Wilson said that he believed that 21 years was an appropriate time to enable him to utilise fully the potential mineral resource yield. He was aware that he had the option to surrender the mining lease if mining and rehabilitation were completed before the term expired. He said that, using current technology to drill and blast the area, he envisaged a two to three man operation. It would not be possible to work the lease during the wet season of approximately three months per year. His plan was to mine the ore body for two days per week, to crush and process the ore body for two days per week and to spend another two days a week selling or recovering the ore.
[59] Mr Houen submitted that in the absence of any proof of mineralisation there was no justification for the grant of a 21 year term or indeed of any term. However, he submitted in the alternative that if a grant of lease were to be recommended, it should be for a term no longer than three years and that such a lease should be non-renewable.
[60] Mr Wilson said that he did not think that the three years suggested by the objectors would be a viable time to enable him to get the lease up and running and to make money out of it after paying all the expenses associated with the establishment of the lease. Further, a lease of three years would be insufficient to enable him to complete extraction of the ore body.
[61] There was no evidence before me as to the extent of the mineralised deposit. In those circumstances I consider that a lease for a term of 21 years is not warranted and if a lease is granted it should be for a much shorter period of time. The average term for a lease for the type of operation proposed by Mr Wilson would be between five and seven years. In my view if a lease is granted it should be for a term of that nature. Relevant to this discussion and also to the objectors’ submission that any lease granted not be renewable is the landowners’ proposed use of their land. This discussion is continued in the consideration of section 269(4)(m) below.
Section 269(4)(f) – whether the applicant has the necessary financial and technical capability to carry on mining operations under the proposed mining lease.
[62] Mr Wilson said that he had cash reserves, at the time of the application, of approximately $22,000, that his yearly earnings were in the vicinity of $70,000 from his contract welding business and that he considered that those financial resources were more than adequate to enable him to establish the project and to get it going. He also said that he owns approximately $40,000 worth of mechanical construction and engineering equipment and that he had no debts at the date of the application. He is a registered tradesman and has been operating in the mining and construction industry for the last 28 years. He has a licence for the use of explosives and will be able to purchase explosives necessary to carrying out small mining blasting in accordance with the current regulations.
[63] There was no challenge to Mr Wilson's evidence in this regard and I have accepted it. I consider that there is sufficient evidence to establish that the applicant has the necessary financial and technical capability to carry out the proposed mining operation.
Section 269(4)(g) – whether the past performance of the applicant has been satisfactory
[64] Mr Wilson said that he has not previously held a mining tenure. However, he has, as noted above, worked in the mining and construction industry for the past 28 years and in particular has worked at Maddens Flat Gold Mine and at North Cote Mine. He also indicated that he had never received a show cause, a conviction, a penalty or had a tenure cancelled under the Mineral Resources Act 1989 or the Mining Act 1968.
[65] In the circumstances I consider that there is no evidence to show that the past performance of the applicant has been unsatisfactory.
Section 269 (4)(h) – whether any disadvantage will result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences.
[66] There are no holders of or applicants for the above tenures over the subject land and therefore there is no one in those categories who will be disadvantaged by the grant.
Section 269(4)(i) – whether the operations to be carried on under the authority of the mining lease conform with sound land use management
[67] The application area is currently used for grazing purposes and, in principle, the land is otherwise capable of being used for mining purposes. However, the objectors have submitted that the proposed mine is contrary to their proposed development plans for their land. This matter is considered further below in relation to s.269(4)(m).
Section 269(4)(j) – whether there will be any adverse environmental impact caused by those operations and if so the extent thereof
[68] A draft environmental authority has been issued to the applicant in respect of the proposed mining activities. The authority requires the applicant to comply with the standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects.
[69] The impact of the proposed mining activity on the objectors’ proposed development plan is considered below in relation to s.269(4)(m).
Section 269(4)(k) – whether the public right and interest will be prejudiced
[70] There was no evidence that the public right and interest would be prejudiced by the proposed grant.
Section 269(4)(l) – whether any good reason has been shown for a refusal to grant the mining lease
[71] The objectors have submitted that there are good reasons, focussed primarily on the proposed future use of their land, for not granting a lease. Those objections are considered below and a conclusion is drawn in relation to them.
Section 269(4)(m) – whether the proposed mining operation is an appropriate land use taking into consideration the current and prospective uses of the land
[72] The objectors originally included as Ground 6 of their objection a series of objections based on the conflict between the proposed mine and the development plan for the objectors' land. That objection was withdrawn.
[73] However under Ground 3 of their objection, the objectors stated that they had a comprehensive plan for residential and tourist development on the land and that the proposed mine was completely incompatible with that development plan conflicting with its residential use of the land and with the water storage which would submerge the access route.
[74] Lots 8 and 9 are together designated by the owners as the Southedge Lakes Project. The evidence was that the project comprised a long term plan for an extensive residential and tourist development on the land. The plan has been in existence for over 20 years and is being implemented in stages. Two lakes are being developed. One, Lake Mitchell, is already in existence and the second, Northedge Lake, is proposed. Other smaller lakes are to be constructed. To date, Lake Mitchell has been completed, boundaries have been established for the other lakes and the lakebeds have been cleared. An application to the Government will be necessary under the Water Act for a licence to enable those lakes to be filled. A road has been constructed from the James Cook Highway on the coast up to and giving access to the property.
[75] Under challenge by Mr Wilson as to whether the project had the appropriate Government approvals, Mr Quaid said that all the development that has occurred to date has the appropriate approvals in place. He also said that the State Government's Far North Queensland (FNQ) 2010 Regional Plan recognized the Southedge Project and that the Mareeba Shire Town Plan had allocated a special plan for Southedge and recognized its existence and its prospect of future development for resort, residential and recreational purposes. At the time of the hearing, the Mareeba Shire no longer existed as it had been merged with other Shires. Similarly the FNQ 2010 State Government plan was being superseded by FNQ 2025 land use planning for North Queensland. Further clarification was necessary in respect of both plans before the landowners would be able to lodge renewed applications.
[76] Mr Quaid said that the proposed mine was incompatible with the proposed development because the application area was in a strategic and highly visible position on both sides of the surveyed Northedge contour line. The survey line marks the boundary of the land cleared as the pondage for the proposed Northedge dam. A mine on that site would detract from the designated tourist resort area. Further, that part of the lease and the whole of the access proposed by Mr Wilson were within the future lake bed. Mr Quaid's evidence was supported by a survey plan which shows that a substantial part of the application area would be inundated by the proposed Northedge Lake when it is at operating level RL372 and that a further smaller area would be inundated by flooding to a height of RL374. Further, the proposed access route would be largely inundated.
[77] As an alternative, the objectors submitted that if the Court were to recommend the grant of a lease, the area of the lease should not include any land below the highest water level of the proposed Northedge Lake dam, that is the flood inundation level at RL 374.00. Mr Wilson's response to that proposal was that that area should be included in the lease to enable him to mine the alluvial content of the dry river bed on the western side of the lease. Further there was an area of approximately 50 m. of alluvial ground from the shaft to the river which had never been worked and which, he believed, would produce significant results. If those areas were not included in the lease, it would be difficult to make a viable operation.
[78] I consider that the mine as proposed would be incompatible with the designated tourist resort area. I am also satisfied that the proposed mine is incompatible with the proposed Northedge Lake to the extent that the mine area and access route would be inundated by the lake when it is filled. There was some evidence from Mr Wilson that the lake levels may be sufficiently low during the dry season to enable him to mine the riverbed and lake area but this evidence was not substantiated in any way.
[79] However, at the time of the hearing, there were no approvals in place to enable the inundation of the Northedge Lake or the development of the proposed residential and tourist facilities. The project is, as Mr Quaid said, a long term project and further development would appear to be some time away. In those circumstances I can see no reason to prevent Mr Wilson mining in the interim period. While there is no specific evidence as to when the landowners will be in a position to develop further stages of the project, I consider that a lease for a term of five years would provide a balance between the applicants’ proposed mining and the landowners’ development plans.
[80] The landowners have submitted that if any mining lease is granted that it should be subject to certain conditions namely -
• that if the lease remains current upon completion of the Northedge Lakes Dam, the leaseholder must apply for a variation of access utilising such of the objectors' existing tracks which would allow access when the dam is at full storage level; and • that mining must commence within three months of the date of grant in accordance with s.276(3) of the Act; and • that the lease be non-renewable in accordance with s.285 of the Act.
[81] There is a possibility that the landowners will obtain the necessary permission to fill the Northedge Lake prior to the expiry of the five-year term. I consider that a period of three years would enable Mr Wilson to sufficient time to mine the alluvial areas. Thereafter if the landowners have a permit to fill the lake Mr Wilson should surrender the relevant area from the lease (the grey and hatched areas as shown on Plan 300708-C02, Exhibit 3). To allow for the possibility that the lake will not be filled due to weather conditions even though the landowners may have permission to fill it, I consider that the condition should require Mr Wilson to make the surrender three months prior to the anticipated date of inundation of the lake. Should those events occur, it will also be necessary that a condition be inserted that Mr Wilson apply to vary the access to the lease area.
[82] As it is unclear when the further stages of the Southedge project will be developed, I do not consider that it is appropriate to recommend that the lease be non-renewable. It would be preferable that the matter be reconsidered at the end of the term of five years and therefore I recommend that a condition should be included in the lease to the effect that the lessee does not have a right to renew the lease but may apply for a renewal; in considering any application for a renewal the Minister should have regard to the matters set out in s.286A(1)(d) that is that having regard to the current and prospective uses of the land comprised in the lease, the operations to be carried on during the renewed term of the lease are an appropriate land use and will conform with sound land use management.
[83] Similarly I recommend that at the time of any application for a renewal, the Minister should consider whether the access to the lease proposed by the applicant should be varied taking into account the current and prospective uses of the land comprised in the lease.
[84] In view of the comparatively short term that I recommend be granted for this lease, I do not consider that it is necessary to impose a condition that mining must commence within three months of the date of grant of the lease.
Recommendation
[85] For the reasons set out above I recommend to the Honourable the Minister for Mines and Energy that Mining Lease 20529 be granted over the application area for a term of five (5) years. The lease should be subject to the following special conditions -
(1) If, after a period of three years from the date of grant of the lease, the landowners have permission to fill the Northedge Lake, the applicant is to surrender those parts of the lease area shaded grey and hatched on the map attached to this decision (Plan No. 300708-C02) three months prior to the anticipated inundation.
(2) Should the events set out in condition 1 occur, the applicant must apply for a
variation of access to the lease area.
(3) The applicant does not have a right to renew the lease but may apply for a
renewal during the renewal period as defined in s.286(3) of the Act.
(4) If the applicant applies for a renewal of the term of the lease during the renewal period, the Honourable the Minister consider whether the lease should be renewed having regard to the current and prospective uses of the land comprised in the lease and whether the operations to be carried on during the renewed term of the lease are an appropriate land use and will conform with sound land use management.
(5) In deciding whether to grant a renewal of the lease the Honourable the Minister should take into account whether it is necessary to vary the access to the lease having regard to the current and prospective uses of the land comprised in the lease.
CAC MacDONALD
PRESIDENT OF THE LAND COURT
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