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  • Unreported Judgment

Bate v Johnson

 

[2020] QLC 12

LAND COURT OF QUEENSLAND

CITATION:

Bate v Johnson & Ors [2020] QLC 12

PARTIES:

Gary Bate

(applicant)

 

v

 

William Raymond Johnson

(objector)

 

 

John Harding Ahlers

(objector)

 

David Leszczewicz

(objector)

FILE NO:

MRA010-19 (ML100190)

DIVISION:

General division

PROCEEDING:

Hearing of application for mining lease and objection

DELIVERED ON:

18 March 2020

DELIVERED AT:

Brisbane

HEARD ON:

17 January 2020

HEARD AT:

Brisbane

PRESIDENT:

FY Kingham

ORDER:

I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for administering the Mineral Resources Act 1989 that ML 100190 be granted, without the tourism purpose, and for the area the Minister accepts is necessary and reasonable for the proposed mining operation.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – where an application was made for a mining lease including a tourism purpose– where the Court found the tourism purpose was not associated with, arising from, or promoting the activity of mining – where the Court found the tourism purpose was not appropriate and that the mining lease should not be granted for this purpose – where the applicant wished to maintain the application without the tourism purpose – where the objectors did not oppose the grant of the mining lease if the tourism purpose was not granted – where the Court recommended the mining lease be granted without the tourism purpose

Armstrong & Anor v Brown & Anor [2004] QCA 80, applied

Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; [2016] HCA 31, applied

New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88, applied

Re Aradon Pty Ltd [2001] QLRT 35, considered

Re Hicks [2002] QLRT 107, considered

Fossicking Act 1994 s 3, s 5, s 25, s 27, s 69(2), s 70, s 78, Part 3 Division 2

Land Act 1994 s 486

Mineral Resources Act 1989 s 4A, s 6A, 234(1), s 269(4), s 276, s 395

Mineral Resources Regulation 2013 s 22, Sch 1

Mining and Quarrying Safety and Health Regulation 2017 s 88

APPEARANCES:

C Mackney (agent), Avoca Tenement Consulting, for the applicant

G Bate, the applicant (self-represented)

D Leszczewicz, objector (self-represented)

R Francis (agent, for a limited purpose) on behalf of W Johnson

  1. [1]
    On 29 June 1873, a gold rush started on the Palmer River in Far North Queensland. James Venture Mulligan reported he and six companions had discovered payable alluvial gold.[1]
  1. [2]
    The rush was short-lived. The gold reefs were small. The cost of recovering the ore was very high. The cost of transporting machinery and supplies to the field was crippling. By the 1880s, the Palmer rush was over. However, even now, the area attracts small-scale alluvial gold miners.
  1. [3]
    More importantly for this application, fossickers and tourists with an interest in mining heritage are attracted to the Palmer River region.
  1. [4]
    Mr Bate has applied for a mining lease (MLA100190) along Spear Creek, a tributary of the Palmer River, on a pastoral holding known as Maitland Downs Station.[2] He already holds an adjacent mining lease where he mines for alluvial gold.[3]
  1. [5]
    Mr Bate’s proposed purposes for ML100190 are to mine copper, tin, silver and gold ore, and for “tourist mine/purposes.”
  1. [6]
    The role of this Court in a mining objection hearing is to make a recommendation about a mining lease application, after hearing the application and the objections to it, and considering a number of factors set out in s 269(4) of the Mineral Resources Act 1989.
  1. [7]
    For this application, one factor dominates, that is, whether the tourism purpose applied for is an appropriate purpose for this lease.[4]
  1. [8]
    If the lease is granted, Mr Bate will allow short-term visitors to camp on the lease, fossick for gold and undertake other tourist activities. This aspect of the application has attracted strong support and vigorous opposition.
  1. [9]
    The Mayor of the Cook Shire Council supports the application.[5]  728 members of the public have signed a petition in support of the proposal, and some petitioners added their comments on the application.[6] The common theme in the Mayor’s letter and the petitioners’ comments is the currently limited facilities for short-term visitors to legally search for gold in the Palmer River Gold Fields. Although tourists can camp in the Palmer Goldfields Resources Reserve, visitors cannot prospect, pan for gold or use metal detectors in the Reserve.[7]
  1. [10]
    There were eight objections to the grant of the mining lease. Three objectors elected to be active parties for the mining objection hearing in this Court.[8] One of them, Mr Ahlers, is the holder of a rolling term lease for Maitland Downs Station, which he uses for pastoral purposes.
  1. [11]
    All objectors raised the impact of the tourism proposal as the reason for their objection. Their objections refer to the number of people who would access the site, the facilities required, the potential for tourists to trespass on Maitland Downs Station and other properties, and the threat to the environment, and to Mr Ahlers’ cattle enterprise, posed by visitors, their pets, and by fire. The objectors questioned whether a mining lease was the appropriate way of authorising and regulating a tourist operation.
  1. [12]
    I will provide more details of the proposal, before addressing whether the tourism purpose is appropriate and, briefly, discussing the other factors I must consider in making my recommendation.

The proposal

  1. [13]
    Mr Bate calls the proposed mine the “Golden Spear Mine.” He seeks a 15 year term for a 21.6 ha of land on Maitland Downs Station in the Mareeba mining district. The minerals applied for are copper, tin, silver, and gold. The infrastructures applied for are tourist mine/purposes, living quarters/camp, and processing plant.
  1. [14]
    The application area follows Spear Creek, but also includes land on either side of the creek and a large flat and partly cleared area, designated for a camping ground.
  1. [15]
    Mr Bate proposes to use the same access as he now uses for his existing lease, although, apparently at Mr Ahlers’ request, he applies to amend the width of the access from 5 metres to 10 metres.[9] Access commences at a turn off from the Mulligan Highway, about 5.5km north of the Palmer River Roadhouse.
  1. [16]
    In the material lodged by Mr Bate with the Department of Natural Resources Mines and Energy in support of his application, he described the proposed activity in the following way:

“Application is made for the extraction of alluvial gold, with an additional purpose of tourism.

Alluvial wash will be removed from the creek bed in the dry season and stockpiled on ML 20457 for processing through the wet season. The plant is a small modified alluvial processing plant and material will be fed through with an excavator. Wash will be returned to the alluvial channels post processing, oversize rocks may be used for erosion mitigation.

Extraction of alluvial wash on ML 100190 will not occur whilst tourists/guests are on site. ML 20457 is the site for processing and visitors will not be on site whilst processing is being carried out. There is a clear segregation of the two purposes of the operation to ensure the safety of all visitors to the site.

Early in 2018, Gary purchased ML 20457 and along with it the business “The Golden Spear Mine” which successfully markets bags of wash with gold to people looking to try gold panning at home.

The tourism element is proposed to be small scale and consist of small groups of people wishing to try their hand at gold panning and processing through small sluice boxes and similar devices. Provision will be made on site for a small number of self-contained camp sites for people wishing to stay a number of days to noodle in the creek. There will also be an area designated from short stay camping/star-gazing and fossicking trips which are being discussed with Night Sky Secrets (based in Cairns). An ablution block will be set up on the flat, all will be removable at end of tenure.”[10]

  1. [17]
    In an affidavit filed with the Court, Mr Bate gave further information about the tourism proposal:

“ML 100190 has an area of 21.6 Ha with an area of approximately 7.5 Ha which can be used for camping areas.

We propose to have tour groups, clubs, caravaners and campers use this area and experience secluded bush camping.

We would expect to see an average of 10 to 50 people camping at any one time, allowance for more for special events.

Most people in this prospecting hobby would be in self-contained (toilet/shower) caravans and camper trailers. We will install toilet/shower blocks and hire in extra as needed.

All bookings will be in advance so we will know and control numbers to suit.

We have also had enquiries from tour companies and clubs wanting to go panning for gold and watch the night skies. Some would be over night or day tours.

We also propose to have annual inter club panning competitions which could attract 200+ people.

Keeping in mind a family of 4 or 5. A Family group may be 20 or 30. A tour company or club may be 30 or 40.

We feel with 21.6 Ha and 1.5 Kms of creek bed they have plenty of room to have their own space. Some will use GSM as a base camp and tour out to Palmer River, Maytown, Cooktown and surrounding areas.

If the guest numbers were capped at 200, this would provide for 10 people per hectare of ground.”[11]

Is the tourism purpose appropriate?

  1. [18]
    When making a recommendation to the Minister that an application for a mining lease be granted in whole or in part, the Court must take into account and consider whether—

“(b)   the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate;”[12]

  1. [19]
    Section 234(1) of the MRA states the purposes for which the Minister may grant a mining lease. They include:

“(b)  purposes, other than mining, as are specified in the mining lease and that are associated with, arising from, or promoting the activity of mining.”

  1. [20]
    Mr Bate says his tourism purpose is appropriate for the mining lease. The objectors say the mining lease is not the appropriate way to manage and control Mr Bate’s proposed tourist venture.
  1. [21]
    The circumstances of this case raise a number of questions:
  1. (a)
    Can a mining lease be granted for a tourism purpose?
  1. (b)
    Is the tourism purpose associated with, arising from or promoting the activity of mining?
  1. (c)
    What are the implications for regulation of the tourist activity if the mining lease is granted for that purpose?
  1. (d)
    Is the purpose appropriate?

Can a mining lease be granted for a tourism purpose?

  1. [22]
    If a tourist purpose is “associated with, arising from, or promoting the activity of mining,” it may be included as a purpose for a mining lease.[13]
  1. [23]
    The parties provided limited information about other mining leases that include tourism as a purpose. The public record of mining tenures and decisions by the former Land and Resources Tribunal, which used to exercise this jurisdiction, provided some further limited information.
  1. [24]
    Mr Bate identified four leases: ML3085, ML20215, ML20217, and ML40055. He did not provide full details of the leases. As far as I can ascertain from the public record, none of those leases have or had any special conditions that defined the scope of or regulated the tourism activity.
  1. [25]
    In Re Hicks,[14] Koppenol P, then President of the Land and Resources Tribunal, recommended the grant of ML20340, in the Mareeba mining district, with a tourism purpose. The area applied for included an historic goldmine known as Tyrconnell mine. The lease has no special conditions and is due to expire on 30 April 2028. The mine’s website states accommodation is available, limited to 12 people.[15]
  1. [26]
    In Re Aradon Pty Ltd,[16]  Smith DP, then a Deputy President of the Land and Resources Tribunal, recommended the grant of ML80090 in the Rockhampton mining district for a term of five years. The purpose of the lease was to mine thunder-egg, rhyolite, perlite and zeolite and, apparently, to authorise a related and existing tourist park. That lease was renewed in 2009. It no longer includes a tourism purpose. The Mt Hay Gemstone Tourist Park, which appears to be associated with the lease, continues to operate.[17]
  1. [27]
    Those leases demonstrate that, on a few occasions, the Minister has accepted that a tourism purpose was sufficiently connected with mining to be included as a purpose. However, in making the grant, the Minister has not imposed special conditions to regulate the tourist activity, an important matter for a venture of the scale Mr Bate proposes.

Is the tourism purpose associated with, arising from or promoting the activity of mining?

  1. [28]
    Mr Bate described a tourist venture involving short-stay camping, star-gazing and fossicking. The only purposes that might be associated with, arise from or promote the activity of mining are fossicking, and camping for that purpose.

associated with mining

  1. [29]
    The phrase “associated with” may mean either combined in terms of circumstances or combined in terms of classification.[18] 
  1. [30]
    Under Mr Bate’s proposal, the fossicking and mining are not combined in terms of circumstances. He proposes a strict segregation of the two. Mr Bate said there would be no mining or processing when tourists are on site. That demonstrates the tourism activity lacks the necessary connection to the mining activity, in terms of circumstances.
  1. [31]
    Another illustration of that is Mr Bate’s evidence about using Maitland Downs Station as a base for campers who wish to fossick in other areas. He said in evidence that he was “dealing with other miners at Palmer River and Maytown to make other leases available to detect on for a fee and still be legal and safe.” [19]
  1. [32]
    What Mr Bate is proposing is a tourism venture that happens to be on a mining lease. Some people who visit will be campers. Others will come on camping or star-gazing tours. Others will want to fossick on Maitland Downs or other stations.
  1. [33]
    I accept this is an attractive tourism option. The Council’s support for a new tourist operation is not surprising. The petition presented to the Court shows a genuine interest in and demand for this sort of operation. However, this venture is not associated with mining in terms of the circumstances of both the mine and the tourist venture.
  1. [34]
    Fossicking is not combined with mining, in terms of classification, either. To fossick is to search for fossicking material, including alluvial gold, on the ground’s surface or by digging with a hand tool.[20] Although the definition of mine in the MRA is broad enough to encompass fossicking,[21] the government has chosen to regulate the two activities through different Acts.
  1. [35]
    The Fossicking Act 1994 is “an Act about recreational and tourist fossicking for minerals, gemstones and ornamental stones and related purposes.[22] That description fits comfortably with Mr Bate’s tourist proposal.
  1. [36]
    The Fossicking Act establishes a system of designating fossicking areas and measures to control camping by fossickers in or near areas of high demand. Although a person may fossick and camp on land outside a designated fossicking area, they still need the consent of the person in charge of the land, whether the landowner or the holder of a mining tenure.[23]
  1. [37]
    The MRA recognises a fossicking licence as the primary authority for fossicking. A person who holds a fossicking licence does not need a prospecting permit or mining claim under the MRA.[24]
  1. [38]
    Those features evince a legislative intent to regulate recreational and tourist fossicking through the Fossicking Act, not the MRA.

arising from mining

  1. [39]
    The fossicking and camping, and certainly the star-gazing, could occur without the mining. However, on Mr Bate’s evidence, there is some doubt about how successful it might be without assistance from the mine.
  1. [40]
    When asked whether there was sufficient gold to satisfy the tourists he would attract, Mr Bate said that he may well “salt the place out and – and make it viable to come.” He agreed this meant he “would return some minerals to the creek bed…so that…(the visitors)…- could have some finds.”[25]
  1. [41]
    In that sense it might be said that the tourist activity arises from the mining. However, the fossicking does not “come into being, originate, spring from or proceed as a consequence; result” from the mining.[26] Legally, and as a matter of practicality, the tourist activity could occur without either a mine or a mining lease.

promoting mining

  1. [42]
    Given my view that mining and fossicking are distinct activities, I do not consider the tourism purpose promotes mining, except in the most tangential way by introducing tourists to the experience of panning for gold. It does not “further or encourage the progress or existence of”[27] mining.

What are the implications for regulation of the tourist activity if the mining lease is granted for that purpose?

  1. [43]
    If the mining lease is granted for the tourism purpose Mr Bate proposes, he will not require Mr Ahlers’ consent to the development, or approval under the Land Act 1994 to use the leased land for that purpose. Further, it will have implications for the regulation of the tourism venture under both the Fossicking Act and the Planning Act 2016.

Mr Ahlers’ consent and the Land Act

  1. [44]
    Without the mining lease, Mr Bate would need Mr Ahlers’ consent to the activity. On the evidence before the Court, Mr Ahlers may not be able to approve an operation of the sort proposed by Mr Bate without first applying for an amendment to his lease.
  1. [45]
    Mr Ahlers holds a rolling lease, which is a form of term lease under the Land Act. He gave evidence his lease prevented him from allowing more than 12 campers at any one time on his lease.[28] I could find no basis for that in the lease documents tendered by Mr Ahlers. However, they were incomplete and did not include the conditions of the original lease, which issued in 1977. If that was a condition of the lease then, it may still be in force.[29]
  1. [46]
    In any case, Mr Ahlers tendered Practice Guidelines issued by DNRME that suggest a lessee may be able to apply to add low key tourism as an additional purpose for the lease.[30] The criteria for low key tourism allows limited additional infrastructure and allows accommodation for up to 16 guests in 4 accommodation units. The criteria do not fit well with Mr Bate’s proposal.
  1. [47]
    Authorising the tourism activity under a mining lease circumvents DNRME’s policy about tourism activities on leases of this type.

The Fossicking Act

  1. [48]
    Both the Fossicking Act and the Fossicking Regulation 2019 impose conditions about fossicking and camping, including fossicking in a watercourse. Some provisions may not apply if the fossicking or camping is authorised by Mr Bate under the mining lease, rather than by licence or camping permit under the Fossicking Act. For example, if the holder of a mining lease consents to a person fossicking on their lease, that person will not need a fossicking licence.[31]Also, an authorised officer appears to lack the power to evict someone for their conduct on the land, if authorised by the holder of a mining lease, rather than under licence. [32]
  1. [49]
    Other provisions of the Fossicking Act would still apply. For example, restrictions apply to fossicking under licence held by fossicking clubs and commercial tour operators,[33] both of which Mr Bate has mentioned in his proposal. Unless Mr Bate individually authorises every person who visits with a club or tour, those provisions would apply.
  1. [50]
    Although it seems some aspects of the Fossicking Act would be excluded if the fossicking occurs with Mr Bate’s consent on his mining lease, other provisions will still apply. That may not matter for the occasional fossicker on a mining lease. The somewhat confused regulatory structure is not ideal, though, when a DNRME officer is expected to regulate an ongoing tourist venture.

The Planning Act

  1. [51]
    If the Minister grants Mr Bate a mining lease with a tourism purpose, he will not require a development approval under the Planning Act.[34] The Fossicking Act does not exclude the Planning Act. If fossicking is authorised under that Act, rather than under a mining lease, any tourism venture associated with the fossicking will require a development approval.
  1. [52]
    During the hearing, Mr Bate said he had assumed he would have to get approval from the Cook Shire Council before commencing the tourist activity. He said he had asked the Council to clarify that but did not have a response.[35] He deferred developing detailed plans for the camp-site, associated infrastructure, and for the tourist activity generally, until the mining lease application was determined.
  1. [53]
    The objectors raised legitimate concerns about how Mr Bate would control the tourist activity. They asked about the number of guests, how effluent from the ablution facilities would be disposed of, and how trespass, fire and pests would be controlled. These are all matters that would likely be addressed by conditions of a development approval, if one was required.
  1. [54]
    Mr Bate explained how he proposed to deal with each issue. He has experience in running a work camp and felt comfortable in his skills to manage his visitors.
  1. [55]
    After the hearing, I directed Mr Bate to file an affidavit providing details of the proposed tourism operation including the campsite area and the measures proposed to mitigate the impact of the operation on the environment and on the landholder’s use of the land. Mr Bate’s affidavit does provide some further helpful material.
  1. [56]
    The question is, though, how Mr Bate might enforce his requirements on any guests not willing to observe the rules. Further, what remedy is there if Mr Bate cannot do so, or if he transfers his mining lease to someone less able or willing to enforce the rules?
  1. [57]
    One option is for this Court to recommend the mining lease be granted subject to conditions giving effect to the limits, restrictions and measures Mr Bate has suggested in his affidavit.
  1. [58]
    I do not intend to take that course.
  1. [59]
    On the evidence, I consider special conditions would need to deal with at least the matters identified below. Some of them are provided for, in a limited way, in standard conditions for a mining lease. While those conditions are suitable for a mining operation, they are directed to the miner and their employees and occasional visitors. They are not apt for one-off visitors engaged in recreational activities, who have no connection with the mining operation.[36]
  1. Access: Mr Bate said he would maintain the access road for 2WD access at all times. Given the road crosses creeks at various points, that would be an ongoing maintenance requirement.
  1. Panning in waterholes: Mr Ahlers raised a genuine concern about panning in waterholes affecting access to and the quality of water for his stock. Conditions may need to quarantine certain areas within the lease.
  1. Boundaries for tourist activities and allowed access routes: in a large area, setting and enforcing restrictions on tourist access is challenging.
  1. Biosecurity: Mr Bate has requested, but not been provided with, the Maitland Downs Biosecurity Plan. Arrangements for vehicle inspection and washdown may be difficult for tourists arriving unsupervised.
  1. Location of campsites: Mr Ahlers is concerned the area delineated for camping would interfere with stock access and fodder in the dry season. He opposes mowing of the camping area as the vegetation grows to some 2 m and is a valuable feed during dry times. Conditions would need to identify the campsite areas and measures to limit the impact of camping on Mr Ahlers’ pastoral activity.
  1. Waste disposal and effluent from toilet and shower facilities: Mr Bate proposed appropriate measures that could be formulated as conditions.
  1. Fire: Mr Bate proposed sensible measures to regulate fire. These would need to be clearly articulated and enforced.
  1. Pets: Mr Bate proposed they be restrained or under the control of the owner.
  1. Safety: the standard conditions deal with safety in a mining, not a tourist, context.
  1. [60]
    Other conditions may be necessary or desirable.
  1. [61]
    This Court is not a planning authority and cannot be expected to consider what conditions might be imposed, otherwise, on a tourist activity under the planning scheme for the Cook Shire. I received no evidence about that. It is not appropriate for this Court to formulate mining lease conditions to regulate a tourism purpose without relevant information and the assistance of a development assessment by an appropriately qualified person.
  1. [62]
    I am also concerned that regulating this sort of tourist activity under a mining lease would be a significant imposition on the officers of DNRME. Although Mr Bate described it as small scale tourism, he suggested a cap of 200 people to visit, fossick, and camp on the lease at any one time. It is likely that, usually, the numbers would be much lower than that, except for special events, and that tourists would not visit at all during the wet season. However, fossicking club and commercial tours, even limited to 50 people, will present an additional regulatory load for officers of the DNRME.
  1. [63]
    Mr Bate says campers who do not observe the rules will be evicted. This will require on the ground enforcement. Mr Bate has experience in managing work camps of up to 120 people over the last 10 years. He considers he has sufficient experience with people management in a camp environment.
  1. [64]
    However, as Mr Ahlers observed, the occupants of a work camp are employees. Their employment is at risk if they do not observe the camp rules. The dynamic on a tourist operation would be different. The occupants will be paying customers. Mr Bate may well ask campers to leave. However, he may need to call on either the police or DNRME to enforce the rules. If Mr Bate does not act, Mr Ahlers has no other option but to call on public agencies to assist.
  1. [65]
    The nearest DNRME office is in Mareeba. It has only a few staff. They have a large area to oversee and many small mines to monitor. Because of other mining cases that originate in this district, I am aware DNRME has to manage numerous and sometimes persistent complaints about compliance by miners. One of the objectors in this case led evidence about his complaints on his own property. I make no findings about them, but the number and the nature of his complaints and the period over which he has raised them gives a picture of DNRME’s existing load in managing compliance on mining leases.
  1. [66]
    I have no reason to believe DNRME officers are sufficiently prepared and equipped, or the Mareeba office well enough resourced, to undertake a compliance and enforcement role usually played by the local council.

Is the purpose appropriate?

  1. [67]
    As Mr Bate has defined the tourist activity, I am not satisfied it is a purpose associated with, arising from, or promoting mining. It presents as a tourist operation that happens to be located on a mining lease.
  1. [68]
    Even if it has sufficient connection to be included as a purpose on the lease, I do not consider it an appropriate purpose to include because of the difficulty for this Court in formulating special conditions to adequately regulate the activity.
  1. [69]
    Further, the government has indicated its intention to regulate recreational and tourism fossicking through the Fossicking Act, not the MRA. Fossicking is an activity better regulated under that Act. The associated or additional tourist activities of camping and star-gazing are better regulated under the Planning Act.
  1. [70]
    For those reasons, I will not recommend the lease is granted with a tourism purpose.

Other factors

  1. [71]
    Mr Bate confirmed he wished to maintain the application, even without the tourism purpose. In deciding what recommendation to make on the application, I will consider the other statutory criteria,[37] and I take into account that Mr Ahlers does not oppose Mr Bate being granted a mining lease without the tourism purpose.[38] As I understand their objections, neither does any other objector.
  1. [72]
    There is no evidence that Mr Bate has failed to comply with any provisions of the Act.[39]
  1. [73]
    There is no specific evidence of mineralisation, but the history and the evidence of other mining activities shows the area is generally mineralised. The purposes other than tourism are appropriate for an alluvial gold mine.[40]
  1. [74]
    The objectors questioned the viability of the mining operation in the absence of the tourism operation. That is a relevant factor.[41]
  1. [75]
    Mr Bate led no specific evidence about viability. His evidence that he would “salt” the ground so the tourists could have some finds suggests he has doubts about the degree of mineralisation. That may, though, say more about how easy he thinks it will be to recover the mineral by hand.
  1. [76]
    Mr Bates does intend to develop and utilise the mineral resource, such as it is, even without the tourist venture. He bought the existing lease and has operated that without incident for at least 12 months. If not granted the tourism purpose, I am satisfied Mr Bate will continue his current practice on the new lease. That is, he will mine during the dry season, process in the wet, and continue to work as a contractor in the construction industry. This means the lease would be worked sporadically, but that is not unusual for a single operator alluvial mine.[42]
  1. [77]
    I asked Mr Bate to identify what area of land he would apply for if the tourism purpose was not allowed. He advised it would be the entire area of 21.6 ha.[43] Mr Ahlers gave evidence that the area applied for is within the most productive country on the property, containing semi-permanent waterholes and good grazing land.[44] No evidence was led to the contrary.
  1. [78]
    Mr Bate has identified approximately 6.42 ha of mineralised ground and 0.9 ha for future stockpiling/processing and camp/living quarters. That is a total of 7.32 ha. He said he requires the balance so as to construct roads to the mined areas and to cart the wash to the stockpile areas for processing. That seems a thin justification for an area of a little more than 14 ha. Mr Ahlers raised this additional 14 ha in his objection as being unrealistic and interfering with cattle operations carried out on the property. I recommend Mr Bate identify the location of the tracks he would construct to connect the mineralised ground with the process plant and camp and that the area of the lease be reconfigured accordingly.
  1. [79]
    There appears to be no disquiet about the route and width of access, as agreed between Mr Bate and Mr Ahlers.[45]
  1. [80]
    Given the area applied for and the way in which Mr Bate will mine it, the term of 15 years is reasonable.[46]
  1. [81]
    No issue was raised about Mr Bate’s financial or technical capability to operate the mine. He currently operates one successfully, supplemented by contracting work. Mr Bate’s experience in the construction industry means he is competent with earth moving equipment. The operation is a simple one, involving extraction and minimal processing without the use of any chemicals.[47]
  1. [82]
    There is no issue with Mr Bate’s past performance. DNRME reported no issues. Mr Ahlers confirmed in evidence that he had no complaint about Mr Bate’s conduct as a miner on the existing lease.[48]
  1. [83]
    The only other applicant for or holder of an exploration permit or mineral development licence is Turnkey Alliance (EPM19137) who has not objected to the application.[49]
  1. [84]
    If the mining lease is limited to mining and mine infrastructure, I am satisfied it will conform with sound land use management. Mr Ahlers had no complaints about the way in which Mr Bate had conducted himself on his existing lease. DNRME have taken no compliance action against Mr Bate. There is no evidence Mr Bate’s mine and Mr Ahlers’ pastoral operation cannot co-exist.[50]
  1. [85]
    There are environmental risks associated with alluvial mining. They will be regulated under Mr Bate’s environmental authority (EPSL00253813) issued by the Department of Environment and Science under the Environmental Protection Act 1994 for Mr Bate’s existing lease. If ML100190 is granted, DES has approved amendment to the environmental authority to include activities on the new lease as well. The objectors’ concerns about environmental impacts related to the tourist operation, not the mining activity. There is no evidence the environmental impacts of mining will not be appropriately managed by Mr Bate complying with his environmental authority.[51]
  1. [86]
    The public right and interest will not be prejudiced by granting a mining lease, without the tourism purpose.[52] No other good reason has been raised in opposition to the mining lease, if granted without the tourism purpose.[53]
  1. [87]
    Without the tourism purpose, I consider the proposed mining operation is an appropriate land use. There is a long history of small-scale alluvial gold mining in this area. It does not prevent other uses of the land, in particular Mr Ahlers’ pastoral operation.[54]

Recommendation

  1. [88]
    In deciding what recommendation to make, I have considered the application material, the objections and the statutory criteria. I have concluded that the mining lease cannot include the tourism purpose because the proposed activity is not “associated with, arise from, or promote mining”. If I am wrong about that, I am not satisfied that it is an appropriate purpose, as proposed, for a mining lease on this property. Other factors favour the grant of a mining lease, without a tourism purpose. I consider the access should be as agreed between Mr Bate and Mr Ahlers. For reasons given at [77] – [78], I consider the area of the lease, if granted, should be the area the Minister accepts is necessary and reasonable for the proposed mining operation, upon Mr Bate identifying the location of any tracks he will construct to connect the mineralised area to the processing and camp area.

Order

I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for administering the Mineral Resources Act 1989 that ML 100190 be granted, without the tourism purpose, and for the area the Minister accepts is necessary and reasonable for the proposed mining operation.

Footnotes

[1]  Department of Environment and Science, “Nature, culture and history”, Palmer Goldfield Resources Reserve (Web Page, 19 December 2018)

[2]  Lot 113 on SP161900.

[3]  ML20457.

[4]  MRA s 269(4)(m).

[5]  Affidavit of Gary John Bate, filed 30 July 2019, Attachment 3.

[6]  Ibid Attachment 4.

[7]  Department of Environment and Science, “About Palmer Goldfield”, Palmer Goldfield Resources Reserve (Web Page, 19 December 2018)

[8]  Land Court of Queensland, Practice Direction– Procedure for mining objection hearings (4 of 2018) [15]-[22].

[9]  Application for Mining Lease, lodged 15 June 2018, Golden Spear Application – Revised Work Program Proposal.

[10]  Ibid.

[11]  Affidavit of Gary John Bate, filed 4 December 2019, page 44.

[12]  MRA s 269(4)(b).

[13]  MRA s 234(1).

[14] Re Hicks [2002] QLRT 107.

[15]  Tyrconnell Outback Experience, Tyrconnell Outback Experience & Historic Gold Ming (Company Website, 2011) <http://www.tyrconnell.com.au/>

[16] Re Aradon Pty Ltd [2001] QLRT 35.

[17] Aradon Pty Ltd, Mt Hay Gemstone Tourist Park (Company Website) <https://www.aradon.com.au/mt-hay-gemstone-tourist-park/>

[18] Deal v Father Pius Kodakkathanath (2016) 258 CLR 281; [2016] HCA 31 [39].

[19]  Affidavit of Gary John Bate, filed 4 December 2019, page 43.

[20]  Fossicking Act 1994 ss 3 (definition of ‘fossick’), 5.

[21]   MRA s 6A.

[22] Fossicking Act 1994 long title.

[23]  Ibid ss 27, 69(2).

[24]  MRA s 395.

[25]  T 1-31 line 18 to line 30.

[26] Collins Australian Dictionary (7th ed, 2005) ‘arising’ (defs 1 and 2).

[27]  Ibid ‘promoting’ (def 1).

[28]  T 1-25 line 6 to line 33; T 1-74  line 4 to line 20.

[29] Land Act 1994 s 486.

[30]  Ex 22, page 6.

[31] Fossicking Act 1994 s 25.

[32]  Ibid ss 70, 78.

[33]  Ibid Part 3 Division 2.

[34]  MRA s 4A.

[35]  T 1-28 line 39 to T 1-29 line 36.

[36]  MRA s 276; Mineral Resources Regulation 2013 s 22, Sch 1; Mining and Quarrying Safety and Health Regulation 2017 s 88.

[37] New Acland Coal Pty Ltd v Smith & Ors [2018] QSC 88 [30].

[38]  Statement of John Harding Ahlers, filed 13 January 2020.

[39]  MRA s 269(4)(a).

[40]  Ibid s 269(4)(b).

[41] Armstrong & Anor v Brown & Anor [2004] QCA 80 [15].

[42]  MRA s 269(4)(c).

[43]  Affidavit of Gary John Bate, filed 4 December 2019, page 1 and Appendix 1.

[44]  Statement of John Harding Ahlers, filed 13 January 2020.

[45]  MRA s 269(4)(d).

[46]  Ibid s 269(4)(e).

[47]  Ibid s 269(4)(f).

[48]  Ibid s 269(4)(g).

[49]  Ibid s 269(4)(h).

[50]  Ibid s 269(4)(i).

[51]  Ibid s 269(4)(j).

[52]  Ibid s 269(4)(k).

[53]  Ibid s 269(4)(l).

[54]  Ibid s 269(4)(m).

Close

Editorial Notes

  • Published Case Name:

    Bate v Johnson & Ors

  • Shortened Case Name:

    Bate v Johnson

  • MNC:

    [2020] QLC 12

  • Court:

    QLC

  • Judge(s):

    Kingham

  • Date:

    18 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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