Go-Sam v Bowtell[2016] QLC 16

LAND COURT OF QUEENSLAND

Background

1. [1]
   On 9 December 2013, Bradley James Elliott Go-Sam, William Joseph Carruthers and Bruce James Mitchell (the applicants) lodged an application for Mining Lease 20736 (MLA 20736) with the Department of Natural Resources and Mines pursuant to the provisions of the Mineral Resources Act 1989 (the MRA).
2. [2]
   MLA 20736 is located approximately 15.8 km south-west of Herberton in Silver Valley, has an area of 25 ha, and a term of 10 years is sought.
3. [3]
   By their application, the applicants state that they seek to mine for slate, tin, silver, copper, gold, indium and antimony. However, it is clear from the evidence of Mr Go-Sam that the mining operation is targeting slate. Of particular note though is that the applicants’ own expert considers that the material on site is Rhyodacite marketed as “porphyry” and not slate.^[1]
4. [4]
   A Certificate of Application pursuant to the MRA for MLA 20736 was issued by the Mining Registrar, Mareeba on 24 January 2014 and was formally accepted by the applicants that same day.
5. [5]
   Following public advertising, objections to the grant of MLA 20736 were lodged by Rod Bowtell, Janeen Bowtell, Lynda Hall, Glenn Hall, Lance Chapman and Timothy Michael (the objectors).
6. [6]
   The applicants experienced difficulties with respect to their application for an Environmental Authority for MLA 20736 pursuant to the provisions of the Environmental Protection Act 1994 (the EPA).
7. [7]
   The applicants’ application for a standard environmental authority was received by the statutory party on 17 December 2013. The application was considered by the statutory party to be properly made on 13 January 2014. Public notification was undertaken by the applicants on 31 January 2014. The submission period ended on 3 March 2014 and three submissions were received within this period. The declaration of compliance for public notice requirements (resource activities) was submitted by the applicants on 10 March 2014. A decision for this application was due 9 April 2014.
8. [8]
   The statutory party decided that the applicants could not comply with the provisions of the Code of Environmental Compliance for Mining Lease Projects and advised the applicants a variation environmental authority was required. Written notice was received by the statutory party from the applicants requesting the withdrawal of the standard application on 3 April 2014, and the application for a variation environmental authority was received on 6 May 2014 by the statutory party.
9. [9]
   The application stage for the variation application ended on 21 May 2014. Public notification of the variation application was undertaken by the applicants in the Tablelands Advertiser on 11 July 2014.
10. [10]
    The applicants complied with the public notice requirements of the EPA and submitted a statutory declaration to that effect on 14 August 2014. The submission period for the variation application ended on 12 August 2014, and six submissions were received and accepted by the statutory party in relation to the variation application. The following people made submissions on the dates indicated:

• Rod Bowtell and Janeen Bowtell dated 5 August 2014;
• Lynda Hall and Glenn Hall dated 9 August 2014;
• Timothy Michael dated 11 August 2014;
• Lance Chapman dated 12 August 2014;

11. [11]
    The decision notice about the application for an environmental authority (mining activities relating to a mining lease) was provided to the applicant and submitters by the statutory party on 15 September 2014. The statutory party’s decision was to accept the applicants’ application and the draft environmental authority (draft EA) was approved by the statutory authority on 15 September 2014. The draft EA is numbered EPVL 02168114.
12. [12]
    Five of the six submitters chose, during the timeframe provided by the EPA, for their submissions to be treated as objections to the grant of the draft EA. The objectors pursuant to the EPA are Rod Bowtell, Janeen Bowtell, Lynda Hall, Glenn Hall and Lance Chapman.
13. [13]
    It should be noted in particular that, although Timothy Michael is an objector to the MLA pursuant to the MRA and was a submitter to the draft EA pursuant to the EPA, he is not an objector to the draft EA.

The hearing

14. [14]
    The primary part of the hearing occurred in April 2015. Following a request made to the Court, an inspection of the land proposed for MLA 20736, the access to MLA 20736, and the surrounding Silver Valley locality was undertaken by the Court in the presence of the parties, save for Mr Michael who chose not to participate in the hearing of his MRA objection and to rely solely on his objection material. It is pertinent to note that the statutory party participated in the hearing but only with respect to the objections made pursuant to the EPA and not with respect to objections made under the MRA as the statutory party has no right to be heard with respect to the MRA objections.
15. [15]
    The hearings of the MRA objections and the EPA objections were held together in Mareeba on 28 April 2015. All parties at the hearing were self-represented, save for Mr Barclay who is a legal officer for the statutory party. Mr Go-Sam represented the applicants, Mr R Bowtell represented himself and Mrs J Bowtell, Ms L Hall represented herself and Mr G Hall, and Mr L Chapman self-represented.
16. [16]
    The hearing resumed on 24 July 2015 in Brisbane and submissions were closed on 10 August 2015.
17. [17]
    In considering these matters, I have relied upon all the evidence before me, including all exhibits tendered. I have also relied on the material provided to the Court by the Mining Registrar, including the Mining Registrar’s Report, in relation to MLA 20736. These reasons refer to the salient points, but not all the relevant evidence, that I have taken into account.
18. [18]
    In considering this matter, I have also applied, where relevant, Sinclair v Mining Warden at Maryborough and Anor,^[2] and Beattie v McGrady.^[3] I have also considered all relevant provisions of the MRA and the EPA.

Legislative procedures for hearing and determining objections under the MRA and the EPA

19. [19]
    The processes for making an objection to the grant of a mining lease under the MRA are straight forward. Pursuant to s. 260 of the MRA, objections are to be in writing, lodged in the approved form, and shall state the grounds of objection and facts and circumstances relied on by the Objector in support of those grounds. A date is subsequently fixed for the hearing of the objection by the Land Court (s. 265) and the hearing proceeds pursuant to s. 268 of the MRA. 

20. [20]
    The requirements for the Court’s recommendation to the Honourable the Minister are set out in s. 269. Section 269(2) provides that the Land Court must make a recommendation to the Minister that the application be granted or rejected in whole or in part. Relevantly, s. 269(3) provides that “a recommendation may include a recommendation that the mining lease be granted subject to such conditions as the Court considers appropriate, including a condition that mining not be carried on above a specified depth below specified surface area of the land”. 
21. [21]
    The MRA then sets out, by s. 269(4), certain criteria that the Court shall take into account and consider when making a recommendation. In this matter I will adopt my usual practice when making a recommendation to the Honourable the Minister to include in the recommendation a detailed breakdown of each criterion under s. 269(4), taking account of any objection under each relevant criteria. For the purposes of s. 269(4) of the MRA, I confirm that I have taken into account and considered in detail each of the s 269(4) criterion for the purposes of making my recommendation. 
22. [22]
    As is evidence from the earlier paragraphs of this decision under the heading “Background”, the objection process is somewhat different under the EPA to the MRA.
23. [23]
    Under s 160 of the EPA, a person may make a submission about an application for an EA. Under s 161 of the EPA the submission may be in writing or electronic and, amongst other things, must state the grounds of the submission and the facts and circumstances relied on in support of the grounds.
24. [24]
    After the statutory party makes a decision on the application for the draft EA in accordance with Part 5, Division 2, Subdivision 2 of the EPA, the applicant and any submitters are notified of the decision (s 181). A submitter may then, pursuant to s 182 of the EPA, give a written notice to the statutory party that they request their submission to be taken to be an objection to the application. The statutory party then refers the application to the Land Court for the making of an objections decision (s 185).
25. [25]
    The parties to the Land Court proceedings (the term used in ss 186 and 189 of the EPA but note the Supreme Court decision of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors)^[4] include the statutory party, the applicant, and the objectors.
26. [26]
    Section 188 of the EPA allows the Land Court to order that the objections decision hearing under the EPA happen at the same time as any hearing for the relevant mining tenure and objections under the MRA. Accordingly, as the hearings before me concern objections under both the EPA and the MRA, I have ordered that the hearings be heard together.
27. [27]
    The nature of the objections decision to be made by the Land Court is set out in s 190 of the EPA as follows:

190 Nature of objections decision

3. (1)
   The objections decision for the application must be a recommendation to the administering authority that—

1. (a)
   if a draft environmental authority was given for the application—

1. (i)
   the application be approved on the basis of the draft environmental authority for the application; or

2. (ii)
   the application be approved, but on stated conditions that are different to the conditions in the draft environmental authority; or

3. (iii)
   the application be refused; or

2. (b)
   if a draft environmental authority was not given for the application—

1. (i)
   the application be approved subject to conditions; or

2. (ii)
   the application be refused.

3. (2)
   However, if a relevant mining lease is, or is included in, a coordinated project, any stated conditions under subsection (1)(a)(ii) or (b)(i)—

1. (a)
   must include the Coordinator-General’s conditions; and

2. (b)
   can not be inconsistent with a Coordinator-General’s condition.

28. [28]
    As the matter does not concern a coordinated project, s 190(2) is not relevant.
29. [29]
    The next important section to be considered is s 191 of the EPA. This section provides:

191 Matters to be considered for objections decision

In making the objections decision for the application, the Land Court must consider the following—

1. (a)
   the application;

2. (b)
   any response given for an information request;

3. (c)
   any standard conditions for the relevant activity or authority;

4. (d)
   any draft environmental authority for the application;

5. (e)
   any objection notice for the application;

6. (f)
   any relevant regulatory requirement;

7. (g)
   the standard criteria;

8. (h)
   the status of any application under the Mineral Resources Act for each relevant mining tenure.

30. [30]
    It is through the requirement to consider “the standard criteria” in s 191(g) of the EPA, that the “precautionary principle” needs to be considered.
31. [31]
    “Standard criteria” is defined in Schedule 4 of the EPA, in part, as follows:

“Standard criteria means –

7. (a)
   the following principles of environment policy as set out in the Intergovernmental Agreement on the Environment-

1. (i)
   the precautionary principle;

2. (ii)
   intergenerational eqity;

3. (iii)
   conservation of biological diversity and ecological integrity;

…”

32. [32]
    Further in Schedule 4 of the EPA the “Intergovernmental Agreement on the Environment” is described as:

“Intergovernmental Agreement on the Environment means the agreement made on 1 May 1992 between the Commonwealth, the States, the Australian Capital Territory, the Northern Territory and the Australian Local Government Association.

Note –

A copy of the Intergovernmental Agreement on the Environment is in the National Environment Protection Council (Queensland) Act 1994, schedule.”

33. [33]
    In the Schedule to the National Environment Protection Council (Queensland) Act 1994 which contains the Intergovernmental Agreement on the Environment made on 1 May 1992 the “precautionary principle” is defined at 3.5.1 as follows:

“3.5.1 Precautionary principle

Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

1. (i)
   careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
2. (ii)
   an assessment of the risk-weighted consequences of various options.”

34. [34]
    It is appropriate at this point to provide an overview of some other relevant provisions of the EPA. Section 3 states that the object of the Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).
35. [35]
    Section 4 provides for an integrated management program, which involves implementing environmental strategies and integrating them into efficient resource management. Accountability is an important element.
36. [36]
    Section 8 defines “environment”. Section 9 defines “environmental value”. Section 14 defines “environmental harm” and how it may be caused by an activity. Section 15 defines “environmental nuisance” as unreasonable interference or likely interference with an environmental value caused by:

1. (a)
   aerosols, fumes, light, noise, odour, particles or smoke; or

2. (b)
   an unhealthy, offensive or unsightly condition because of contamination; or

3. (c)
   another way proscribed by regulation.

37. [37]
    As I said in the Land Court decision of Donovan v Struber & Ors:^[5]

“[14] The objects of the EP Act are vastly different from the objects of the MRA. While the key object of the MRA is to facilitate the mining of the State’s resources, s.3 of the EP Act states that the object of that Act is to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development). … ”

The MRA Objections

38. [38]
    The MRA grounds of objection lodged by Rod Bowtell and Janeen Bowtell are identical. The grounds are as follows:

“WATER CONTAMINATION

  NOISE

  DUST

TOO CLOSE TO FREEHOLD PROPERTIES

PROPOSED MINING LEASE IS IN THE HERBERT RIVER CATCHMENT AREA

NO PREVIOUS MINING IN THE AREA, IT IS UNDISTURED GROUND

ANYTHING BEING MINED WILL DISTURB ARSENIC AND OTHER CONTAMINENTS IN THE GROUN

SILVER VALLEY ROAD IS NOT SUITABLE FOR LARGE TRUCKS AND BRIDGES ARE INADEQUATE

THERE IS NO ROAD TO THE AREA THAT IS THE SITE OF THE PROPOSED MINING AREA, NO DESIGNATED CROSSING ON DRY R

BULLDOZING A ROAD WILL CAUSE HUGH ENVIRONMENTAL ISSUES AND CONTAMINATION IN THE DRY RIVER WHERE HOMES ARE SITUATED

NO BUND WALL FOR CONTAMINENTS

NO PLANTS ON MAP FOR WASTE AND GARBAGE REMOVAL”

39. [39]
    The MRA grounds of objection lodged by Lynda Hall and Glenn Hall are also identical and are as follows:

1. “(I)
   INVALID APPLICATION.

1. (II)
   THE MINING PROGRAM (QUESTION 15.1) ONLY ADDRESSES THE MINING OF SLATE.

1. (III)
   THE MINING OF SILVER/GOLD/COPPER/INDIUM/ANTIMONY/TIN HAS NOT BEEN ADDRESSED AT ALL IN THIS APPLICATION”

40. [40]
    Lance Chapman worded his MRA objections this way:

“* SILVER COPPER ANTIMONY ARE SULPHIDES WHICH RELEASE ARSENIC AND LEAD.

  * ROAD ACCESS.

  * FINES-DUST”

41. [41]
    In his MRA objections, Timothy Michael had this to say:

“Water, air and noise pollution.

Proximity to local residents.

The building of a new road across the river and into currently undisturbed bushland.

Road and bridges on Silver Valley Road inadequate for heavy vehicle use.”

42. [42]
    The grounds of objection of each MRA objector were supported by statements of facts and circumstances, some of which are quite lengthy. Although they are not reproduced here, I have taken them fully into account.

The EPA Objections

43. [43]
    Rod Bowtell and Janeen Bowtell provided joint EPA objections as follows:

“AREA COMES UNDER CATEGORY A, B, + C

AIR POLLUTION

NOISE POLLUTION

WATER POLLUTION

EROSION PROBLEMS

DISTURBING THE INTEGRITY OF THE RIVER

ENDANGERED ANIMALS IN THE AREA”

44. [44]
    The Bowtells also formally incorporated into their grounds of objection their grounds of submission as follows:

“THERE SHOULD BE AN ENVIRONMENTAL IMPACT STUDY

THE PROPOSED MINING LEASE IS WITHIN THE HERBERT RIVER CATCHMENT AREA

EROSION PROBLEMS/NO BARRIER FOR EROSION

WATER CONTAMINATION

IMPACT ON GROUND WATER

THE PROPOSED LEASE IS IN A AREA THAT HAS NEVER BEEN MINED BEFORE IT IS UNDISTURBED GROUND

NO BUND WALL FOR CONTAMINENTS

MINING WILL CAUSE ARSENIC AND OTHER CONTAMANENTS TO LEACH OUT OF GROUND INTO SURROUNDING AREAS AND WATERWAYS

FREEHOLD PROPERTY ONLY A KILOMETRE DOWN RIVER NEED CLEAN WATER

AN ABUNDANCE OF NATIVE ANIMALS IN THE AREA NEED CLEAN WATER ALSO

THERE IS NO ROAD WHERE THE APPLICANTS WANT TO CROSS THE RIVER BULLDOZING A ROAD WILL CAUSE MAJOR EROSION AND ENVIRONMENTAL PROBLEMS

DRY RIVER THE ONLY CLEAN WATER WITH THE ONLY PERMANENT WATERHOLS WITH FISH AND TURTLES ONLY

DOWN RIVER, A KILOMETRE FROM WHERE APPLICANTS WANT TO PUT ROAD

ISSUE OF GARBAGE AND HUMAN WASTE DISPOSAL”

45. [45]
    Lynda Hall and Glenn Hall also made joint EPA objections, which are as follows:

“WHEN WE PUT IN OUR FIRST SUBMISSION BRADLY GO SAM RANG US AND THREATENED US WITH BARRISTER/SOLICITORS IF WE WENT TO LAND COURT. WE REPORTED THIS TO MINES DEPT AT TIME.

THE APPLICATION ITSELF IS INVALID. IT HAS THE APPLICANTS LISTED AS TENANTS IN COMMON. THE VARIATION APPLICATION HAS THEM LISTED AS JOINT TENANTS. THE MINES DEPT INSTRUCTIONS STATES THAT CARE SHOULD BE TAKEN BECAUSE IT IS A LEGAL DOCUMENT. THIS DOCUMENT IS ILLEGAL.

OUR FIRST SUBMISSION RAISED CONCERNS ABOUT THE DUST THIS MINE WOULD CREATE. IN MR GO SAMS VARIATION APPLICATION, HE STATES THAT HE WOULD WATER THE SLATE AND ACCESS ROAD. HOWEVER THERE IS NO WATER ON THIS LEASE FOR 6 MONTHS OF YEAR.

THIS MINING APPLICATION CLEARLY STATES THE APPLICANTS INTENSIONS TO MINE GOLD/SILVER/COPPER/INDIUM/ANTIMONY/ TIN AS WELL AS SLATE. HOWEVER MINING THESE MINERALS HS NOT BEEN ADDRESSED AT ALL. THERE IS NOT A SINGLE ENVIRONMENTAL CONDITION FOR DOING SO.  THE APPLICATION ALSO STATES THEIR INTENTION TO PROCESS ON SITE. THE ENVIROMENT DEPT HAS COMPLETELY IGNORED THIS.

IN QUESTION 5 (ADDITIONAL INFORMATION FOR LAND COURT) MR GO SAM SAYS THERE WILL BE LITTLE IMPACT ON THE SURFACE AREA OF THE LAND. HOWEVER IN HIS APPLICATION HE STATES THEY WILL BE USING BOBCAT, BULLDOZER, EXCAVATOR AND SHOT FIRER TO BLAST THE GROUND APART.

IN QUESTION 10 (ADDITIONAL APPLICANT INFORMATION AND STATUTORY DECLARATION FOR THE LAND COURT) MR GO SAM SAY HIS PAST EXPERIENCE IS BEING THE SON OF A MINER, AND THAT HE HAS MINED HIS WHOLE LIFE. IF THIS WERE TRUE THERE WOULD BE RECORDS IN THE MINE DEPT AND THE TAXATION DEPT.”

46. [46]
    EPA objections were also lodged by Lance Chapman. These objections state:

“The applicant has made a False declaration. No records of Bradly Gosam producing Tin in Silver Valley

False address of Will Cruthers at 40 Palomino Drive Tolga. No existing road or crossing on the dry river.”

Analysis

47. [47]
    Compared to a number of the huge coal mining applications and objections to those applications and their EAs that I have considered in my time as a Member of the Queensland Judiciary, the mining proposed by the applicants is a small program even though it occupies some 25 ha of land. However, just because this is a small mining operation planning only to employ a couple of people, that does not mean to say that the issues to be considered in this matter are not both complex and important. In my view, the issues in this matter can certainly be considered to be rather complex and important. Unfortunately, consideration of this matter was further complicated by the fact that all parties, save for the statutory party, were not legally represented. This has resulted in a doubling-up of evidence in some circumstances and repetitious submissions by both the applicants and the objectors. That said, however, I commend the unrepresented parties for the manner in which they presented themselves in person before the Court when giving evidence, during the inspection, and in the manner in which they have provided their written submissions. This is particularly important given the undertones of threats that have been referred to in evidence in this matter and which will be discussed in some detail later in this decision.
48. [48]
    As can be seen from even a cursory glance of the grounds of objection to both the MLA and the EA, a large number of topics have been identified. I again confirm that I have considered all of the evidence relating to all of these issues in drawing my conclusions in this matter. Were I to consider in written form every single ground and every single fact and circumstance and evidence given with respect thereto for every issue, this decision would be intolerably long. What I have set out in the sub-headings below are some essential topics that I consider warrant the specific attention of the Court.

Evidentiary concerns

49. [49]
    I have a number of concerns regarding the giving of certain evidence in this matter. To begin with, I have found the evidence of all witnesses to be generally truthful and given in a manner to assist and not deceive the Court. However, specifically as regards the evidence of Mr Go-Sam, there are some elements of his evidence that are a cause for concern.
50. [50]
    The first issue of concern relates to the tendering of exhibit 5, being expert evidence of Colin Robinson, a consulting geologist, to the Court further to Mr Robinson’s material contained in exhibit 2. Exhibit 5 was only tendered to the Court at the hearing of the matter and was not provided by the applicants as part of their material in the lead-up for the hearing as required by orders of the Court. I have some concern that this material was kept back from the objectors by the applicants until the last possible moment in order to both take the objectors by surprise and disadvantage them. It is also of particular note that Mr Robinson was not present at the hearing to give evidence in support of exhibits 2 or 5, nor of course was he available for cross-examination by the objectors or the statutory party.
51. [51]
    I only allowed exhibit 5 to be tendered into evidence after a delay in the hearing to allow the objectors and the statutory party an opportunity to read the contents of exhibit 5 and consider their respective positions in light of the contents of that material. The objectors strongly made the point that they would have liked to cross-examine Mr Robinson. I agree with the objectors.
52. [52]
    Although exhibit 5 was accepted as an exhibit before the Court, the use to which that evidence can be put is subject to considerations by this Court as to the appropriate weight that should be given to the evidence. Exhibit 5 was withheld from the objectors and the statutory party until the very last minute. Mr Robinson was not available for cross-examination with respect to Exhibits 2 or 5. In these circumstances, I attach very little weight to exhibits 2 or 5 as regards any statements in exhibits 2 or 5 which may be taken to be of assistance to the applicants. However, there are some statements in exhibit 2 which are not overly of assistance to the applicants and I do give more weight to those parts of exhibit 2 than the bulk of that exhibit.
53. [53]
    Mr Go-Sam only has himself to blame for the manner in which he presented exhibit 5 to the Court and for his failure to have Mr Robinson available for cross-examination.
54. [54]
    Another aspect of concern relating to Mr Go-Sam’s evidence relates to his evidence while being cross-examined by Mr Chapman. Mr Chapman put it to Mr Go-Sam that Mr Carruthers’ address was not as listed in the application material. Mr Go-Sam’s evidence was to the effect that he did not know Mr Carruthers’ address and that he does not visit him.^[6]
55. [55]
    In my opinion it is quite beyond belief that Mr Go-Sam has no knowledge of the whereabouts of a co-applicant, being Mr Carruthers. I do not know why Mr Go-Sam was evasive in giving his evidence with respect to Mr Carruthers’ whereabouts, but the material taken as a whole indicates to me that Mr Go-Sam was authorised by Mr Carruthers to speak on his behalf at the hearing of the matter, and that Mr Go-Sam certainly knows how to make contact with Mr Carruthers whenever the need should arise.
56. [56]
    Mr Go-Sam’s credit is certainly weakened by his answers to questions relating to Mr Carruthers’ address.
57. [57]
    The next issue of evidentiary concern that I have with respect to Mr Go-Sam relates to his estimate of time and distance. In particular, this relates to events which occurred at the inspection of MLA 20736. Mr Go-Sam had informed the Court and the other parties both in preparation of the inspection and at the inspection itself that the inspecting party would be required to travel a distance of some 800 m one way on foot, making a total distance of approximately 1.6 km. What transpired was a very lengthy excursion on foot for which the inspecting party was ill-equipped and under resourced. Personal tracking software that I had with me showed the distance covered on foot at the inspection to be well over 8.5 km, over some very rough and rather dangerous terrain. Of course, that is not to say that the inspecting party travelled a distance of 8.5 km “as the crow files”. The terrain was such that often much walking had to be undertaken in a zig zag fashion to advance even a few metres.
58. [58]
    I am aware of course that the occurrences on the inspection are not evidence as such in the hearing but rather that the inspection is merely to assist the Court in understanding the evidence. However, as the relatively recent Supreme Court decision of BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors has made abundantly clear, the Land Court is undertaking an administrative process when recommending the grant of the MLA and the EA for approval. The parties were required to provide the Court with their estimates relevant to the inspection. Mr Go-Sam’s estimates were way off the mark in this regard and are of such an important character that I believe I am compelled to take them into account. Further, Mr Go-Sam had the opportunity when he gave his oral evidence to correct himself or to apologise to the Court for matters that unfolded at the inspection. He failed to do either. The objectors, on the other hand, formally made reference to Mr Go-Sam’s error of judgment in estimating distance in their own evidence which they further relied upon in their submissions.

Threats

59. [59]
    Unfortunately, this is a matter where the material contains numerous allegations of threats made by the applicants towards the objectors. On the material before me, no criminal charges have been laid with respect to any of the threats or indeed to the allegation of five counts of arson levelled against Mr Go-Sam. Mr Go-Sam, for his part, denies that he was even in Silver Valley at the time that the arson attacks occurred.
60. [60]
    There is a weight of evidence from various objectors suggesting that Mr Go-Sam “threatened” the objectors with legal proceedings, including barristers and solicitors, should they continue with their objections to the MLA and the EA. I consider it more likely than not that statements of this nature were made by Mr Go-Sam. However, that does not mean that those statements were necessarily “threats”. They could, for instance, be seen as a strong assertion of Mr Go-Sam’s legal rights.
61. [61]
    I can but hope that there is nothing of substance in the statements attributed to Mr Go-Sam of threats to kill certain persons including objectors. There is scant evidence in this regard before the Court and, at any rate, such matters are properly the providence of the Queensland Police and/or criminal proceedings. Mr Go-Sam strongly denies that he made threats to kill anyone. Specifically insofar as it is necessary for me to take into account issues of Mr Go-Sam’s credit, I have removed from my considerations any issues relating to alleged threats to kill other persons as there is simply not sufficient evidence before the Court to take that matter further, and in any event that matter would primarily go to consideration as to whether Mr Go-Sam was a fit and proper person to hold a mining lease. Although this point is not without some doubt and concern, there is not sufficient specific evidence before the Court to enable me to find that Mr Go-Sam is not a fit and proper person to hold a mining lease.

Minerals applied for

62. [62]
    As indicated in the background to this decision, the applicants’ application states that they seek MLA 20736 in order to mine for slate, tin, silver, copper, gold, indium and antimony.
63. [63]
    Both in his oral and written evidence, Mr Go-Sam makes it clear that the applicants are only seeking to mine “slate” on MLA 20736. The other minerals have been included in the application, according to Mr Go-Sam^[7] in order to protect the applicants’ mining operations from other large scale miners.
64. [64]
    Questions of mineralisation raise two important issues in this matter. Firstly, there is the conflicting evidence relating to “slate”. As indicated, the evidence of Mr Robinson contained in exhibit 2 is that MLA 20736 contains rhyodacite, marketed as “porphyry”, and is not slate. I accept this aspect of Mr Robinson’s evidence. Mr Go-Sam also made it clear when giving his evidence that when he refers to slate he is in fact referring to “porphyry”.^[8]
65. [65]
    For the purposes of MLA 20736 and the draft EA thereto, references to “slate” are taken to be references to rhyodacite (marketed as “porphyry”). I recommend that a statement to this effect be included as a special condition to both MLA 20736 and the draft EA.
66. [66]
    The second area of concern relates to the minerals for which MLA 20736 is sought over which the applicants have no intention to actually mine. Whilst I understand Mr Go-Sam’s stated reason for including those minerals in the applicants’ application, I accept the evidence of the objectors that the draft EA in this matter specifically relates to a slate mining operation. I accept Mr Go-Sam’s evidence that a mining operation carried out purely for slate will have the potential to cause very little, if any, acid forming material within the mining lease operations. However, that position is certainly different should the mining operations uncover workable amounts of the other minerals sought in the MLA. Accordingly, I recommend that MLA 20736 be granted with respect to mining for slate (Rhyodacite marketed as “porphyry”) only and not with respect to tin, silver, copper, gold, indium and antimony.

Potential environmental harm

67. [67]
    All of the objectors have given evidence as to their concerns regarding the potential for environmental harm to occur should MLA 20736 be granted. The objectors’ concerns have been well set out in their objections and in their evidence. Those concerns relate to potential impacts on threatened species and noise and dust contamination and impacts on houses in the general vicinity of the mining operations as well as impacts to a nearby environmentally sensitive area.
68. [68]
    In short, provided a special condition limiting the mining under the current draft EA to slate in the terms that I have suggested is included, together with a restriction on mining activities as set out in paragraph [75], I am of the opinion that the concerns relating to environmental harm do not outweigh the positive objects of the MRA in support of the grant of the MLA and, by implication, the EA.
69. [69]
    My decision in this matter would be quite different if MLA 20736 was sought for the mining of minerals with the potential to cause acid runoff by their disturbance.

Mining away from watercourses/seasonal creeks

70. [70]
    At the close of the evidence in this matter, I asked the parties to consider whether or not the draft EA in this matter should be subject to a special condition that no mining activity be undertaken within 50 m of the watercourses located within the MLA area.
71. [71]
    The statutory party, in its submissions of 15 July 2015, has submitted that it is appropriate in this matter that an additional condition be added as follows:

“the holder of this environmental authority must ensure that mining activities are not conducted within 50 m of any watercourse”

72. [72]
    Mr Go-Sam in his written submissions of 3 August 2015 stated as follows:

“regarding the statutory party I am quite happy to abide by strict conditions that a 50 m buffer zone that no mining will occur within 50 m of a major watercourse namingly the north western peg and the north eastern peg is over 100 m from the watercourse, and the gully beside ML 20736 on the eastern side does not contain water”

73. [73]
    I am concerned that Mr Go-Sam is somewhat at cross purposes with the special condition proposed by the statutory party, and with the suggested special condition that I referred to at the hearing.
74. [74]
    Adopting an approach consistent with the precautionary principle, I agree with the statutory party that the draft EA should contain a special condition that mining activities are not undertaken within 50 m of any watercourse. By watercourse, I include seasonal creeks. I take the manner in which the statutory party has provided its written submissions to also include seasonal creeks.
75. [75]
    Accordingly, it is my view that it is appropriate to include a special condition in the draft EA in the following terms:

“the holder of this environmental authority must ensure that mining activities are not conducted within 50 m of any watercourse, including seasonal creek, located within the boundaries of MLA 20736 and as generally delineated on the map attached and marked “A”.

76. [76]
    Specifically as regards the proposal to attach a map “A”, I place the obligation on the statutory party to produce attachment “A” using as much detail as possible delineating those areas which fall within 50 m of any watercourse including seasonal creeks within MLA 20736.

Access to MLA 20736

77. [77]
    Much evidence was given by the objectors as to difficulties with the use of the access proposed by the applicants for MLA 20736. Mr Robinson on the final page of exhibit 2 stated that “the access will have to be addressed more fully”. This is another aspect of Mr Robinson’s evidence which I accept. Importantly, in answer to a question by Mr Chapman that “that’s quite concerning, the access, isn’t it?”.^[9] Mr Go-Sam replied “that’s the hard one. Yes”.^[10]
78. [78]
    I accept the evidence of the objectors that the access currently proposed by Mr Go-Sam on behalf of the applicants is not suitable. It would appear to be quite unnecessary to undertake a further crossing of the river when another alternative is available. Further, I share the objectors’ concern that, during a particularly heavy wet season, there would be a heightened risk of any crossing that Mr Go-Sam constructed, in essentially a temporary manner by way of pushing rock and insertion of drainage pipes, to be washed away downriver.
79. [79]
    Although actual particulars in an evidentiary sense are quite sketchy, the evidence such as it is indicates that there is an alternate access to MLA 20736 which is able to utilise a gazetted road to get the applicants close to MLA 20736, requiring only a relatively short amount of access from the gazetted road to MLA 20736. In my view, MLA 20736 should only be granted if the access to MLA 20736 is first formally amended to remove the current access route and instead to utilise the gazetted road to travel near to MLA 20736, with only the necessity for a short amount of access to travel from the gazetted road to an appropriate point on MLA 20736.

MRA s 269(4) considerations for MLA 20736

80. [80]
    As indicated earlier in this decision, it is necessary for the Court to consider the provisions of s 269 of the MRA when making its recommendation, and in particular to consider the provisions of s 269(4). I will consider each element of s 269(4) separately. Where aspects of those elements have already been specifically dealt with in my consideration of the various topics above, I will make only passing further reference to them.
81. [81]
    I must stress that, in considering each of the criterion relevant to s 269(4) I have taken into account and considered all of the relevant MRA objections made in this matter.

Section 269(4)(a) – have the provisions of the Act been complied with?

82. [82]
    On 24 January 2014 the Mining Registrar, Mareeba, issued a Certificate of Application for MLA 20736. The Mining Registrar can only issue the Certificate if satisfied that the applicants are eligible to apply for the mining lease and have complied with the requirements of the MRA with respect to the application.^[11]
83. [83]
    Objectors have raised issues relating to “illegality” of the MLA, such as the applicants being referred to in parts of the material as holders as tenants in common, and in other parts of the material as joint tenants. Any such issues are not of sufficient importance so as to bring into question the legality of the MLA or the issuing by the Mining Registrar of the Certificate.
84. [84]
    In my opinion, there is sufficient evidence of compliance with the provisions of the MRA in respect to this application.

Section 269(4)(b) – is the land applied for mineralised or the other purposes for which the lease is sought appropriate?

85. [85]
    I am in some doubt as to whether MLA 20736 contains economical quantities of rhyodacite. However, as the authorities show,^[12] it is not a matter for this Court to consider the issue of “economical mineralisation”. It is only a matter for the Court to be satisfied that the mineral applied for exists on the MLA. I am satisfied from the evidence of both Mr Robinson and Mr Go-Sam that the MLA area contains rhyodacite, known as “porphyry”. It is a matter for the commercial operations of the applicants as to whether or not commercial exploitation of this mineral can occur from MLA 20736.

Section 269(4)(c) – if the land applied for is mineralised, will there be an acceptable level of development and utilisation of the mineral resources within the area applied for?

86. [86]
    In considering this matter, I take into account the comments that I made with respect to the previous criterion.
87. [87]
    Having considered all of the evidence presented in this matter, although there remains real doubt, I am satisfied, on balance, that the applicants believe that they will be able to operate a profitable mining operation for “porphyry”. Provided the special conditions as I have already indicated in this decision are included respectively in the MLA and the EA, I am satisfied, on balance, that the applicants have shown a sufficient level of development and utilisation of the mineral resources of porphyry within the area applied for.

Section 269(4)(d) – is the land and the surface area of that land in respect of the mining lease is sought of an appropriate size and shape?

88. [88]
    Provided that the specific restriction as to an exclusion of mining activities from within 50 m of any watercourse including any seasonal creek is included, I consider that MLA 20736 is an appropriate size and shape in light of the proposed mining operation.

Section 269(4)(e) – is the term sought appropriate?

89. [89]
    The term sought for this mining lease is ten years. I have no evidence before me to suggest that the term of ten years is not appropriate.

Section 269(4)(f) – has the applicant the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?

90. [90]
    As indicated, the applicants propose small scale mining. They have provided sworn evidence that they already hold, or have access to, the small amount of mining machinery that they require to undertake the mining operation.
91. [91]
    On balance, I am satisfied that the requirements of this criterion are met.

Section 269(4)(g) – has the past performance of the applicant been satisfactory?

92. [92]
    Although the objectors raised some issue as to the suitability of the applicants with respect to this criterion, I accept Mr Go-Sam’s evidence that he has a long history of mining activities and experience.
93. [93]
    Unfortunately, Mr Go-Sam did not do himself any favours by his reluctance to answer questions as to the whereabouts of Mr Carruthers.
94. [94]
    On balance, I am satisfied that the past performance of the applicants has been satisfactory.

Section 269(4)(h) – will any disadvantage result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences?

95. [95]
    There is nothing in the material to show any disadvantage to any such holders or existing applicants.

Section 269(4)(i) – do the operations to be carried on under the authority of the mining lease confirm with sound land use management?

96. [96]
    As I have already discussed at length, there is a risk of environmental harm underpinning the grant of this MLA and draft EA. However, should the MLA and draft EA be specially conditioned as previously indicated, then, on balance, and provided that the applicants comply at all times with those special conditions as well as all other conditions of the MLA and draft EA, then, and only then, can MLA 20736 be considered as conforming with sound land use management.

Section 269(4)(j) – will there be any adverse environmental impacts, and if so, the extent thereof?

97. [97]
    As I have already indicated at length, there is the potential for adverse environmental impacts from MLA 20736, particularly if the applicants were to mine minerals other than porphyry and the resultant potential for acid forming material to occur and pollute the nearby waterways. However, provided that MLA 20736 is specially conditioned as recommended, and further that the draft EA receives further condition as recommended, then, on balance, and provided that all provisions of the MLA and EA are strictly complied with by the applicants, any adverse environmental impacts can be adequately kept under control. In this regard, I consider that the applicants should be closely monitored to ensure compliance at all times with their conditions.

Section 269(4)(k) – will the public right and interest be prejudiced?

98. [98]
    I refer to my response to the previous two criteria.
99. [99]
    On balance, the public right and interest will not be prejudiced provided that the additional conditions are made to MLA 20736 and the draft EA and that the applicants comply strictly with all conditions.

Section 269(4)(l) – has any good reason been shown for refusal to grant the mining lease?

100. [100]
     The objectors have certainly provided reasons why it would be appropriate to refuse the grant of MLA 20736. However, on balance, as indicated in the previous three criteria, I consider that MLA 20736, together with its draft EA, can be specially conditioned so as to tip the scales in favour, on balance, of the grant of MLA 20736.

Section 269(4)(m) – is the proposed mining operation an appropriate land use taking into consideration the current and prospective uses of the land?

101. [101]
     I have previously both in my discussion of specific issues, and in my response to specific criteria, addressed my concerns regarding whether or not the mining operation is an appropriate land use.
102. [102]
     The land is currently used for very low intensity grazing. I am satisfied that the land is of ecological value.
103. [103]
     On balance, and with the proposed conditions, and provided all conditions are strictly applied by the applicants and closely enforced, I am satisfied that the proposed mining operation is an appropriate land use of the application land.

Conclusion

104. [104]
     The foregoing reasons make the orders that I propose clear. MLA 20736 should be granted, but subject to conditions. Likewise, the draft EA should also be granted, subject to conditions.
105. [105]
     I consider it appropriate to recommend to the Honourable the Minister responsible for the Mineral Resources Act 1989 that MLA 20736 be granted for the purpose of mining for Rhyodacite (marketed as “Porphyry”) and referred to in the application as slate, and for no other minerals, subject to the applicants first formally removing the current access and instead assessing MLA 20736 by utilising the gazetted road to travel near to MLA 20736, with formal short access only from the gazetted road to an appropriate point on MLA 20736.
106. [106]
     I further consider it appropriate to recommend to the Administering Authority for the Environmental Protection Act 1994 that the draft EA be approved subject to the following condition:

“the holder of this environmental authority must ensure that mining activities are not conducted within 50 m of any watercourse, including seasonal creek, located within the boundaries of MLA 20736 and as generally delineated on the map attached and marked “A”.

107. [107]
     I order the statutory party to prepare the Attachment A mentioned in the preceding paragraph, using as much detail as possible to delineate those areas which fall within 50 m of any watercourse including seasonal creeks within MLA 20736.

Orders

1. Recommendation made to the Honourable the Minister responsible for the Mineral Resources Act 1989 that MLA 20736 be granted for the purpose of mining for Rhyodacite (marketed as “porphyry”) and referred to in the application as slate, and for no other minerals, subject to the applicants formally removing the current access and instead accessing MLA 20736 by utilising the gazetted road to travel near to MLA 20736, with formal short access only from the gazetted road to an appropriate point on MLA 20736.

2. Recommendation made to the Administering Authority for the Environmental Protection Act 1994 that the draft EA be approved subject to the following condition:

“the holder of this environmental authority must ensure that mining activities are not conducted within 50 m of any watercourse, including seasonal creek, located within the boundaries of MLA 20736 and as generally delineated on the map attached and marked “A”.

3. The statutory party ordered to prepare the Attachment A mentioned in Order 2, using as much detail as possible to delineate those areas which fall within 50 m of any watercourse including seasonal creeks within MLA 20736.

PA SMITH

MEMBER OF THE LAND COURT