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[2020] QLC 24
procedural. Recommendation to the Minister for Natural Resources, Mines and Energy that ML 20525, ML 20526 and ML 20614 be granted (see Order and [75]).
TML applied for three mining leases to extract antimony and gold. An objector (MPAI) held an overlapping grazing lease but did not actively participate in the hearing and provided no specific evidence of likely interference. TML initially failed to notify four adjoining landholders but rectified the omission and the Department accepted substantial compliance. Environmental concerns flagged in earlier reports were addressed in later assessments and an environmental authority exists; mitigation for threatened fauna was proposed. Balancing the statutory criteria in s 269(4) of the Mineral Resources Act 1989, the Land Court member concluded the evidence favoured granting the leases and recommended that the Minister do so, while noting the delays and recommending engagement with the environmental regulator.
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Territory Minerals Ltd (TML) sought three mining leases in the Mareeba mining district to mine antimony ore and gold: ML 20525 and ML 20526 (applications lodged 3 March 2006) and ML 20614 (lodged 23 February 2009). TML became 100% owner of these applications on 24 April 2013 ([6]-[7]). The Department's delegate issued mining lease notices on 16 July 2019 ([8]). MP Australia Investments Pty Ltd (MPAI) objected; MPAI holds an underlying grazing lease (Lot 144 HG 625) overlapping parts of ML 20525 and ML 20526; ML 20614 does not overlap the underlying lot ([3]).
There were multiple procedural and substantive issues: (1) TML initially failed to notify four adjoining landholders when the mining lease notices were issued but rectified the omission by registered mail on 23 August 2019 and sought substantial compliance; DNRME accepted substantial compliance ([9]-[11]); (2) unusually long delays existed between lodgement and notice, approximately 13 years for ML 20525/20526 and 10 years for ML 20614, prompting concerns under s 269(4)(c) about capacity and intention to develop ([12], [22], [69]); (3) environmental concerns initially raised in a 2006 Initial Advice Statement (IAS), particularly groundwater and threatened bat fauna, were challenged by the objector as inadequately documented; TML supplied a 2009 IAS and appendices (floral, faunal and groundwater assessments) in response, and an Environmental Authority (EA) was granted for ML 20525/20526 in 2019 while ML 20614 carried its earlier EA ([45]-[47], [41]); (4) MPAI did not elect to be an active party at the hearing and provided no specific evidence showing how grazing operations would be impacted ([4], [33], [71]).
A Land Court hearing was held on 7 May 2020; the Member received amended submissions from TML and ultimately recommended to the Minister for Natural Resources, Mines and Energy that the three leases be granted ([5], Order).
The Member's task was to apply the statutory criteria in s 269(4) of the Mineral Resources Act 1989, weighing a set of enumerated factors: compliance, mineralisation, utilisation and development prospects, size and shape, term, financial and technical capability, past performance, disadvantage to other miners, land use management, environmental impacts, public interest, and any good reason for refusal ([3], [20], [25], [35], [42], [44], [45]).
Key elements of the Member's reasoning:
Substantial compliance cured the procedural defect: TML's failure to notify four adjoining landholders was remedied by subsequent registered mail, provision of extended timeframes for objections, and DNRME's acceptance of substantial compliance. Therefore the omission did not invalidate the applications ([9]-[11]).
Mineralisation and capability: The court accepted the evidence that the applied-for areas were mineralised (2006 and 2009 IAS estimates, valuation material) and accepted TML's technical and financial capability, in part because no competing evidence was adduced by MPAI and because the Department had considered capability in its processes ([18]-[20], [25]-[26], [36]-[37]).
Delay was important but not decisive: The Member repeatedly noted the inordinate delay (10–13 years) and criticised both the applicant and the Department for having 'forgotten' the applications for years; nevertheless, the delay was one factor to be balanced among others and did not carry the day against grant ([12], [22], [24], [69]).
Lack of specific evidence from the objector: MPAI complained about size/shape and potential impacts on grazing, but did not present specific evidence of interference. The Member held that while mining can affect grazing enterprises, absent particulars the court could not assess the actual impact and therefore could not refuse on speculative grounds ([28]-[33], [71]).
Environmental concerns addressed by later assessments and regulatory process: The Member acknowledged shortcomings in the 2006 IAS (missing appendices; authorship issues) and that MPAI had not been given or was unaware of the 2009 IAS and updated appendices until later. Importantly, TML supplied a 2009 IAS with updated fauna and groundwater assessments, and mitigation measures were proposed (for example, re-creating adit-like structures for bats). The EA had been granted (or remained in effect) and EA conditions and regulatory oversight (Department of Environment and Science) provided additional safeguards. The Member emphasised that he could not make recommendations about the EA itself; instead, engagement with DES prior to grant was appropriate ([45]-[53], [58]-[63], [72]-[73]).
On balance, after weighing the s 269(4) criteria and relying on the evidentiary materials before him, and noting the absence of concrete evidence from the objector, the Member concluded the evidence favoured grant and recommended that the Minister grant the three mining leases ([68], [75]).
Before this decision, the statutory framework in Queensland governing mining lease grants was clear: s 269(4) of the MRA sets out a non-exhaustive list of matters the decision-maker must consider. The case does not create new law; rather it applies established principles:
Substantial compliance can cure procedural defects where affected parties' rights are preserved and the administering department accepts compliance. The Member applied this to notice defects ([9]-[11]).
The tribunal must weigh all factors in s 269(4), considering evidence on mineralisation, capability, environmental impact and others, and decide whether those factors favour grant or refusal ([68]).
An objector who does not actively participate and adduces no specific evidence limits the tribunal's ability to refuse on speculative ground; the obligation to produce evidence of concrete harm lies with the objector ([33], [71]).
After the decision, these practical applications are affirmed in the Land Court context: procedural lapses may be cured by later remedial steps and acceptance by the regulator; lengthy delays are relevant but not necessarily determinative; environmental concerns identified in earlier material can be addressed through updated assessments and the EA/regulatory process, and an applicant's assurances and departmental assessment can support a finding of capability where no contrary evidence is advanced.
This decision is a fact-based application of existing principles rather than a doctrinal shift. Practitioners should note the practical import: the court will expect specific evidence of likely adverse impacts from objectors and will give weight to updated environmental documentation and regulatory oversight.
"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." ([11])
Plain-English: TML's late notification to the four neighbours did not make the applications invalid because the neighbours were then properly notified and the Department accepted that procedural requirements were substantially complied with.
"There has been an inordinate delay between application and notice to the objector - 13 years ... and 10 years ..." ([12])
Plain-English: The Member records grave concern about the very long time between the original applications and when the public was notified, which affected fairness and certainty for landholders.
"However, in the absence of evidence from MPAI, I cannot assess how the mine might interfere with their current or proposed commercial activities." ([33])
Plain-English: The objector’s general fears were not backed by specifics, so the court could not draw a conclusion that the mining would unreasonably interfere with the grazing business.
"My task is to weigh the various factors ... and considering how all the relevant factors weigh in the balance." ([68])
Plain-English: The Member must balance all statutory considerations in s 269(4) and decide whether they favour granting or refusing the leases.
"Weighing the relevant factors in the balance, I consider the evidence before the Court favours the grant of the leases." ([75])
Plain-English: After considering everything, the Member decided to recommend that the Minister grant the three mining leases.
This decision is most directly applicable where:
An applicant for mining leases has remedied an initial procedural defect (for example, failure to give notice to one or more adjoining landholders) by subsequent notice and the administering department accepts substantial compliance.
Objectors raise objections but either do not participate actively in the hearing or fail to produce specific, quantified evidence of actual or likely harm (to grazing, infrastructure, fauna, groundwater).
There exist older environmental assessments that raised issues, but later, project-specific or updated assessments (and an EA) have been produced addressing those issues, including proposed mitigation measures.
There has been a significant delay between lodgement of mining lease applications and notification, but the applicant can supply explanations and demonstrate capability such that the delay does not outweigh other positive factors.
In short, when procedural rectification and substantive evidence of mineralisation, capability and environmental assessment exist, and objectors fail to produce concrete evidence of unacceptable impacts, the Land Court will be inclined to recommend grant.
As this decision is from the Land Court of Queensland and is primarily a factual application of the MRA statutory criteria, it is not a high court precedent. It applies established authorities (Tickner v Chapman, Bat Advocacy NSW, Sinclair) to frame the balancing exercise ([68], footnotes [46]-[48]). Later courts or tribunals confronted with similar factual matrices are likely to treat this decision as persuasive at the Land Court level when considering: (a) the effects of remedial notice and substantial compliance, (b) the weight to be given to lack of specific evidence from objectors, and (c) reliance on updated environmental assessments and regulatory oversight. Practitioners should monitor subsequent Land Court decisions and any appellate review for refinement of how delay interacts with s 269(4)(c) and what suffices as 'specific evidence' of likely interference.
Quantifying the effect of delay: The Member acknowledged the delay as 'inordinate' but did not articulate a clear threshold or remedial approach for when delay should tip the balance against grant. Future cases may test how long or how prejudicial delays must be before they become determinative under s 269(4)(c) ([12], [69]).
What constitutes sufficient 'specific evidence' from objectors: The decision confirms that speculative assertions are insufficient, but it does not define the content, degree or form of evidence (expert reports, economic impact analyses, grazing plans) required to establish likely interference with grazing operations ([33], [71]). Future disputes will clarify evidentiary standards.
The interplay between Land Court recommendations and environmental authority decisions: The Member could not make recommendations about EA approval and recommended engagement with DES prior to grant ([62], [73]). How the Minister should balance a Land Court recommendation with outstanding or conditional EA matters remains operationally significant.
Limits of 'substantial compliance': The judgment accepts departmental acceptance of substantial compliance cured the notice defect ([9]-[11]). But where a missed notice affects a large or materially affected party, whether departmental acceptance will always suffice remains uncertain. Subsequent decisions may define constraints on the doctrine in mining lease contexts.
Transferability and reliance on applicant's assurances: The Member warned that statements of intent may become burdensome if tenements pass to different holders ([32]). The legal force of such assurances, and mechanisms to bind successors (conditions on grant, agreements with objectors), remain practical issues to be explored in subsequent cases.
Practitioners advising clients should ensure clear, contemporaneous documentation of environmental assessments and mitigation; promptly remedy any procedural defects with contemporaneous recordkeeping and seek departmental acceptance of substantial compliance; press objectors to articulate specific, evidentiary claims if opposing; and consider negotiating agreements (access, compensation, footprint reductions) to reduce the risk of contestable grounds.
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
Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor [2011] FCAFC 59; (2001) 180 LGERA 99
Sinclair v Mining Warden at Maryborough & Anor [1975] HCA 17; (1975) 132 CLR 473
[1] Territory Minerals Limited (TML) is the applicant for three mining leases in the Mareeba mining district as follows:
[2] 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.
[3] 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.
[4] 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]
Has TML complied with the provisions of the MRA?[6]
[6] 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.
[7] 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.
[8] 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]
[9] 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:
"We neglected to notify 4 adjoining land holders being
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] 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.
[11] 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.
[12] 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]
[13] 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]
[14] 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.
[16] 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.
[17] It is apparent that references to the IAS by MPIA are references to the 2006 IAS and not the 2009 IAS.
[18] 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.
"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]
[20] 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]
[21] 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.
[22] 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.
[23] 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]
[24] 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.
[25] 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]
[26] 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]
[27] 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.
[28] 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.
[29] 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]
[30] 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.
[31] 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]
[32] 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.
[33] 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.
[34] There is no evidence that the applied for area is not an appropriate size and shape.
[35] 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]
[36] 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]
[37] 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]
[38] 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]
[39] 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]
[40] 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.
[41] 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.
[42] 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.
[43] 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]
[44] 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.
[45] 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.
[46] 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.
[47] 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.
[48] 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.
[49] 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]
[50] 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.
[51] 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.
[52] 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.
[53] 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.
[54] I also note the EA standard conditions regarding groundwater: A9, B4 (note 25), B5, B6 (note 29), B8 (note 36), B9 (note 38).
[55] 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]
[56] 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.
[57] 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]
[58] 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]
[59] 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]
[60] 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.
"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]
[62] 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.
[63] 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]
[64] 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.
[65] 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]
[66] 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]
[67] 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.
[69] 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.
[70] 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.
[71] 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.
[72] 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.
[73] 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.
[74] The public infrastructure impacts on the application areas have been addressed with the Mareeba Shire Council.
[75] Weighing the relevant factors in the balance, I consider the evidence before the Court favours the grant of the leases.
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.
[1] See Practice Direction 4 of 2018 - Procedure for Mining Objection Hearings.
[4] Applicant's submissions filed 6 May 2020.
[5] Applicant's amended submissions filed 8 May 2020.
[6] MRA s269(4)(a).
[11] MRA s 269(4)(b).
[14] Applicant's amended submissions, page 5.
[15] Appendix B to the Applicant's submissions filed 6 May 2020.
[18] Appendix 1 to the Applicant's submissions filed 6 May.
[19] Applicant's Amended Submissions, page 2.
[20] MRA s 269(4)(c).
[21] Applicant's Amended Submissions, page 5.
[23] Applicant's Amended Submissions, page 5.
[25] MRA s 269(4)(d).
[27] Applicant's Amended Submissions, page 2.
[29] MRA s 269(4)(e).
[30] MRA s 269(4)(f).
[31] Applicant's Amended Submissions, page 5.
[32] MRA s 269(4)(g).
[33] MRA s 269(4)(h).
[34] MRA s 269(4)(i).
[35] MRA s 269(4)(j).
[38] Appendix B to the Applicant's Submissions received 6 May 2020, page 4.
[39] Appendix 2 to the Applicant's Submissions received 6 May 2020, para 2.8.
[41] Applicant's Amended Submissions, page 6.
[42] MRA s 269(4)(k).
[43] Applicant's Amended Submissions, page 6.
[44] MRA s 269(4)(l).
[45] MRA s 269(4)(m).
[46] Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451, 495.
[47] Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor [2011] FCAFC 59; (2001) 180 LGERA 99 [44]-[45].
[48] Sinclair v Mining Warden at Maryborough & Anor [1975] HCA 17; (1975) 132 CLR 473.
Territory Minerals Ltd
MP Australia Investments Pty Ltd [2020] QLC 24
(1995) 57 FCR 451
(2001) 180 LGERA 99
(1975) 132 CLR 473
Recommendation to the Minister for Natural Resources, Mines and Energy that ML 20525, ML 20526 and ML 20614 be granted (see Order and [75]).