(K) THE DEFENDANT'S SUBMISSIONS
106 Mr Carney, in his submissions on behalf of the defendant, observed that mullock comes from the claims and the working of the claims. As such, he contended, mullock can be dealt with as a matter concerning conditions of mining as regulated by the Department of Primary Industry. The mullock dumps, he argued, are in the nature of a product of mining and are not a result of "access" to the dumps.
107 Mr Carney, accordingly, argued that lease or licence conditions of a mineral claim or a prospecting licence were the means for dealing with this so-called product of mining. If mining contravened restrictions or conditions, then, in his submission it was always open to the plaintiff to make complaint to the regulatory entity, the Department of Primary Industries.
108 On the construction of s.236D(1), it was submitted for the defendant that the plaintiff's submissions focussed upon the word "management" but that that word could not be considered independently from the matter that was to be "managed". Additionally, reference was made to CSR Limited (supra) and Workers' Compensation Board of Queensland v Technical Products Pty Limited (1988) 165 CLR 642 in relation to the phrase "in respect of" which the Court there stated gathers meaning from the context in which it appears and that it is the context that determines the matters to which the phrase extends.
109 It was submitted on behalf of the defendant that mullock heaps are not generated by any of the matters referred to in s.236D(1)(b) and that, in the absence of an agreement between the parties, the location and the extent of mullock heaps were extraneous to the permitted scope of a determination of an AMP under s.236D. It was further observed:-
"… Unless there is consent by the landholder to accumulate mullock, produced by mining activities, elsewhere on the land then the mullock must be stored in the site of the relevant mineral claim. This would lead to a multiplicity of mullock heaps and that would not be in the landholder's best interests, nor in the best interests of the environment. The point is that without an agreement between the parties to include such a matter, then the storage of mullock has nothing to do with the conditions of an AMP."
110 The defendant contended that the matters the plaintiff sought to have incorporated into an AMP are already provided for in Parts 9 and 10 of the Act and that the appropriate way in which conditions relevant to those matters may be imposed are the small-scale mining titles themselves:-
"… Those titles regulate the rights to explore and to mine within the title area, whereas an AMP regulates the rights of passage across the land to and from the title area." (Written submissions, paragraph 25)
111 It was further contended for the defendant that the process set up by Part 10A is not concerned with issues that arise from miners exercising their rights to mine their claims.
112 Mr Carney referred to the conditions of an opal licence and the conditions of a mineral claim. The Conditions of an Opal Licence for Opal Prosecting Area 1 & 2, a copy of which is included in Exhibit A at pp.163 to 164, were said to be typical of the type of conditions for such licences. They operate, inter alia, both for the purpose of conferring authority to carry out prospecting operations and also for imposing restrictions on activities that may be carried out. In relation to such restrictions, condition 3 limits prospecting operations to drilling and shaft sinking only. Condition 4 requires compliance with specified legislation. Such legislation, it was observed, included what was described as "all relevant environmental legislation".
113 Condition 7 provides:-
"7. Operations are to be carried out in such manner that does not endanger the safety of any person or any stock. In particular, all shafts and drill holes are to be appropriately protected to ensure access to them by persons and stock is restricted. Any drill hole or shaft is to be filled as soon as it ceases to be used and the land in the immediate vicinity is to be left in a clean and tidy condition. Abandoned shafts and drill holes are to be filled in to the satisfaction of the Mining Registrar, Inspector of Mines or the Mine Safety Officer."
114 Condition 15 provides:-
"15. The holder must conduct operation in such a manner as not to cause or aggravate soil erosion and must observe and perform any instructions by the Mining Registrar, Inspector of Mines or the Mines Safety Officer."
115 The conditions of licence also require that "Prospecting operations must be carried out in such a manner that is in accord with environmental legislation".
116 Condition 21(A) provides:-
"The holder must rehabilitate all of the areas disturbed to the satisfaction of the Mining Registrar, a Mines Safety Officer or an Environmental Officer."
117 In relation to the conditions of a mineral claim under the Act, which are set out at pp.165 to 166 of Exhibit A, Mr Carney drew attention to paragraphs 6 and 7 thereof, which are in the following terms:-
"6. Upon the completion of operations, or cessation of the mineral claim, the claim holder must rehabilitate all disturbed areas on the claim area to the satisfaction of, the Mining Registrar, a Mine Safety Officer or an Environmental Officer. The claim holder must ensure that the claim area is left in a clean and tidy condition, which includes the removal of all mining plant (ie, buildings, mining equipment, tools), rubbish, fences or any introduced plants.
7. The claim holder must ensure that any top soil that is disturbed in the course of operations is set aside for replacement when mining operations have come to an end. The claim holder must ensure that soil, rock and tailings are disposed of according to an Opal Field Management Plan or as directed by, the Mining Registrar, an Inspector of Mines, a Mines Safety Officer or an Environmental Officer . The claim holder must ensure that only such vegetation is removed from the claim area to ensure for efficient mining. The claim area must not be cleared of all vegetation and any clearing undertaking must comply with all relevant environmental legislation." (emphasis added)
118 The conditions of a mining claim, Mr Carney observed accordingly, regulate the mining claim area. In contrast, an AMP, he said, is confined to matters of "access" only. The conditions of a mining claim may be enforced as they are subject to sanctions including suspension or revocation of licences. Additionally, a bond is required in order to ensure environmental issues are addressed.
119 Mr Carney submitted that an AMP, on the other hand, has a limited scope of operation and is not "a general management plan". He contended that the conditions of a licence issued under the Act may make provision for matters that Mr Parkins was seeking to bring within the scope of the inquiry conducted by the Chief Mining Warden.
120 Mr Leeming, in his oral submissions in reply (transcript, p.60), agreed with Mr Carney that the activities associated with the dumping at the communal mullock dumps could be made subject to a "part of a licence" but he said they were not. He, with respect, appropriately acknowledged that having regard to the terms of clause 7 in the Conditions of a Mining Claim (Exhibit A, at p.165 - extracted above):-
"I agree … that it could be the subject of a part of a Part 9 licence but it is not … one could impose a condition on a licence requiring those people that have had their 50 by 50 metres square to remove mullock in a particular way, store it in a particular place and so on but there isn't …"
121 In relation to the provisions of s.236D(1)(b)(iv) "environmental protection", Mr Carney submitted that the "environment concerns" referred to in the plaintiff's submissions could only relate "… to the question of access. In other words, should roads be constructed in the manner that's not going to be washed away and be done properly …" (transcript, p.48). He contended that the reference in s.236D(1)(b) to "… the conditions of which the holder of a small-scale title is subject to in relation to his or her exercise of any such right of access, including conditions in relation to: (the matters specified in (i) to (iv)) would include matters that could otherwise cause damage, particularly in the case of badly constructed roads that could be subject to the forces of erosion" (transcript, p.48).
122 Mr Carney also contended that mullock dumps arise in consequence or as a product of mining and that they are not concerned with matters related to access. In that respect, he submitted (transcript, p.49):-
"Product of mining is something that would be attached to as a condition of a mineral claim or prospecting licence, but it's not the result of the prospecting, it's the result of mining. It's not agreed that be included here. In fact, it's specifically disagreed. His [referring to the plaintiff] remedy lies in, if he chose to, but apparently he does not seem to have, making a complaint to those that regulate the mining activity to say that as a result of the mining mullock dumped here, I need this cleaned up or dealt with in some other way. It's not a matter of access. That's regulated by the DPI under other parts of the Act as a condition of mining."
123 In the defendant's written submissions, reference was made to the fact that the right to prospect and the right to mine is derived directly from the relevant small-scale title and not from an AMP: s.195(1) and s.232(1) of the Act. Mr Carney also observed that the relevant Minister determines the terms and conditions that apply to small-scale mining title and publishes them in the Gazette: s.175 and s.223A of the Act.
124 In respect of mineral claims, the Minister has a broad scope to impose of conditions and s.175(2) specifies, without limiting the generality of s.175(1), particular conditions that may be specified. These include:-
"(j) The obligations of the holders of mineral claims as to the rehabilitation of land on which prospecting or mining operations have been carried out."
125 Similarly, in respect of an opal licence under s.223A, the Minister's power to specify conditions under s.223A(1) is a broad one and, without limiting the generality of that provision, specific conditions as set out in s.223A(2) may be imposed. These do not expressly include a condition concerning rehabilitation of land, although it was contended the broad power to impose conditions would appear to embrace it.
126 The defendant also placed reliance upon the fact that a breach of conditions may lead to cancellation of the relevant prospecting title: s.203(1)(c) and s.233.
127 The defendant also took issue with the "concerns" raised by the plaintiff in his submissions in paragraphs 29 to 33. These were framed in terms of damage done to the land resulting from "opal mining operations generally" and "to minimise the impact of mining" (paragraph 31).
128 It was submitted (Defendant's written submissions, paragraph 15) that an Inquiry pursuant to Part 10A of the Act is not an appropriate forum in which to deal with any adverse impacts of mining, unless the parties enter into an agreement to include such matters in an AMP. Reliance was placed upon the provisions of s.236K which provides that "an AMP does not apply to land within the claim area under a mineral claim".
129 In relation to the plaintiff's contention that the central issue for determination depended upon whether a "narrow" or a "broad" meaning was given to the word "access", the defendant contended that the section provides for a determination by the Warden's Court that includes only matters that can be said to be "for or with respect to" those stipulated by s.236D(1) unless the parties to the plan agree on additional matters. Rather than the issue being said to be one involving a broad or a narrow interpretation, the defendant submitted that it is to be resolved by focussing upon the specific subject matter or matters referred to in s.236D(1).