LAND COURT OF QUEENSLAND
CITATION: | Citigold Corporation Limited v Chief Executive, Department of Environment and Heritage Protection (No. 5) [2016] QLC 62[*] |
PARTIES: | Citigold Corporation Limited (appellant) |
| v |
| Chief Executive, Department of Environment and Heritage Protection (respondent) |
FILE NO/s: | EPA055-15 |
DIVISION: | General Division |
PROCEEDING: | Appeal against determination of financial assurance for an Environmental Authority |
DELIVERED ON: | 31 October 2016 |
DELIVERED AT: | Brisbane |
HEARD ON: | 7-16 December 2015; 3-6, 18, 19 February 2016; 10, 11 March 2016; 12-16 September 2016; 24 and 27 October 2016 |
HEARD AT: | Brisbane |
MEMBER: | PA Smith |
ORDER/S: |
|
CATCHWORDS: | APPEAL – GENERAL PRINCIPLES – appeal de novo of administrative decision COURTS – JURISDICTION AND POWERS – where Court standing in place of administrative decision-maker ENERGY AND RESOURCES – MINERALS – COURT EXERCISING JURISDICTION IN MINING MATTERS – calculation of Financial Assurance payable ENVIRONMENT – rehabilitation – determination of Financial Assurance payable by Mining Company in light of Plan of Operations EVIDENCE – GENERAL PRINCIPLES – expert evidence – where conflict in expert evidence – where evidence of the nature of expert evidence given by witness not called as an expert – where witness had expert credentials MONEY – Financial Assurance – determination of – factors to be considered MONEY – Financial Assurance – form of payment MONEY – Financial Assurance – whether contingency payable Acts Interpretation Act 1901, s 14A Environmental Protection Act 1994, s 287, s 288, s 289, s 292, s 295, s 521, s 524, s 527, s 528, s 530, s 548 Environmental Protection Regulation 2008, s 17B Financial Assurance under the Environmental Protection Act 1994 – Guideline Mineral Resources Act 1989 Alliance to Save Hinchinbrook Inc v Cook (2006) QSC 84 Citigold Corporation Limited v Chief Executive, Department of Environment and Heritage Protection (No. 3) [2016] QLC 21 Cuthbert v Moreton Bay Regional Council (2015) QPEC 36 Cuthbert v Moreton Bay Regional Council (2015) QPEC 63 Garbler v Redland Shire Council (2001) QPEC 028 Gladstone Ports Corporation v Queensland Heritage Council (2012) QPEC 9 Oakley v The Chief Executive Administering The Coastal Protection & Management Act 1995 (2014) QPEC 58 Origin Energy Electricity Ltd v Queensland Competition Authority (2014) 1 Qd R 216 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 Sanpine v Koompahtoo Local Aboriginal Land Council (2005) NSWSC 365 Trevisan v FCT (1991) 101 ALR 26 |
APPEARANCES: | Ms McIntyre of counsel for the appellant Mr Dillon of counsel for the respondent |
SOLICITORS: | Holding Redlich for the appellant Litigation Unit, Department of Environment and Heritage Protection for the respondent |
Contents
Opening5
Overview5
Summary of Citigold’s Position7
Summary of Respondent’s Position10
Chronology12
The Hearing15
Urgency16
The Relevant Legislation18
Onus of Proof33
Analysis of Witnesses38
Ms Reupena38
Mr Lynch39
Mr Towsey46
Ms Minnesma56
The Expert Evidence62
Mr Thompson62
Mr Anderson69
Areas of Agreement of the Experts72
JER 2 Report Agreement Areas73
Matters of Agreement during Concurrent Evidence74
Submissions Regarding the Expert Evidence76
Key Issue – Inclusion or Exclusion of Infrastructure78
Blackjack USL86
Precautionary Principle93
Citigold’s Submissions93
Respondent’s Submissions94
Assessment of applicability of Precautionary Principle94
Calculating the Financial Assurance Payable by Citigold96
TSF High Risk or Low Risk96
WRD High Risk or Low Risk96
Contingency97
Financial Assurance Calculations Using Exhibit 6899
Determination105
ORDERS: 106
Appendix A – Glossary 107
Opening
Overview
(a) owns and operates the Charters Towers Gold Project, an open cut and underground gold mining operation at Charters Towers, Queensland (the Project);
(b) is the holder of Environmental Authority (EA) (MIM800084602) and (MIN102516311) (together known as EPML00556713) [Exhibit 6 (Doc. CAT-05)] in respect of the Mining Leases[1]for the Project; and
(c) as a condition of its EA, is required to provide a financial assurance in the amount and form required by the administering authority prior to the commencement of activities under its EA.
(a) confirm the decision;
(b) set aside the decision and substitute another decision; or
(c) set aside the decision and return the matter to the administering authority who made the decision, with directions the Court considers appropriate.[9]
(a) assess the proposed amount of financial assurance contained in Citigold’s Plan of Operations;[10] and
(b) decide the amount and form of financial assurance in accordance with s 295 of the EP Act.
(a) must have regard to:
(i) any relevant regulatory requirements; and
(ii) any criteria stated in a guideline made by the chief executive and prescribed under a regulation.[11]
(b) can not require financial assurance of an amount more than the amount that, in it’s opinion, represents the total of likely costs and expenses that may be incurred taking action to rehabilitate or restore and protect the environment because of environmental harm that may be caused by the activity.[12]
![Citigold Corporation Limited v Chief Executive, Department of Environment and Heritage Protection (No. 5) [2016] QLC 62](/judgmentview/image?name=327099.001.png&id=327099)
Summary of Citigold’s Position
“11. For the reasons outlined in these submissions, Citigold submits that:
and, the FA should be assessed in accordance this.
MATTERS FOR THE COURT TO DECIDE
Summary of Respondent’s Position
“(1) The appeal is by way of rehearing, in the nature of a hearing de novo.
(2) The statutory intention is that the Appellant bears the legal or practical onus of persuading the Court that its financial assurance calculations should be imposed, in circumstances where:
(a) The EP Act places responsibility upon the applicant to provide a rehabilitation program and costings for that program, in the form of financial assurance calculations.
(b) It is the decision of the Respondent and not the Appellant which determines the amount and form of the financial assurance required for a plan of operations.
(c) Once made, the Respondent’s decision is operative and binds the Appellant unless and until it is substituted or set aside following an internal review or appeal. The orthodox legal convention that a party seeking to set aside a decision must prove its case applies.
(3) Alternatively, neither party bears the legal or practical onus.
(4) The legislative regime is as follows:
(a) Section 295 provides that the Court “must have regard to” the prescribed guideline and any regulatory requirements.
(b) The statutory intention is not that the guideline is strictly binding upon the Court. It is a matter which must be taken into consideration. However, in all the circumstances, it should be given significant weight.
(c) In circumstances where the hearing is a hearing de novo, version 3 of the guideline is the version to which the Court must have regard.
(d) Alternatively and in any event, section 295 does not prevent the Court from having regard to all relevant matters in making its decision, including version 2 and version 3 of the guideline.
(e) Other matters which the Court may have regard to as being relevant to the calculation of financial assurances include the regulatory requirements concerning environmental management decisions contained in the Environmental Protection Regulation 2008 (“the EP Regulation”), and the “precautionary principle”. However, the Court’s decision need not turn on consideration of either of those matters.
(5) In determining whether costs and expenses are “likely” to occur, the word “likely” should be interpreted as meaning a “real chance or possibility”, rather than “more probable or not”.
(6) The key issues in the appeal are:
(a) First, what infrastructure should be included or excluded from the calculations?
(b) Second, what rehabilitation requirements or assumptions should be relied upon to calculate the costs?
(7) In terms of the first issue:
(a) The waste rock dumps and tailing storage facility (“TSF”) are not infrastructure. They are not properly the subject of landowner agreements or statements. They should be included in the financial assurance calculations.
(b) The infrastructure on unallocated State land is not properly the subject of landowner agreements or statements. The infrastructure should be included in the financial assurance calculations.
(c) Neither the Respondent nor the Court are precluded from scrutinizing the landowner statements and agreements, and determining whether it is appropriate to give effect to them.
(d) In all of the circumstances, it is not appropriate that the infrastructure which is the subject of the landowner agreements and statements be excluded from the financial assurance calculations.
(e) Further, and alternatively, the landowner agreements and statements are inconsistent with the conditions of the Appellant’s environmental authority, including and in particular condition F1-1.
(8) In terms of the second issue:
(a) In light of Mr Towsey’s qualifications and expertise, his interests in Citigold and his duties to the company, and the opinions of Mr Thompson and Mr Anderson, the Court should give Mr Towsey’s evidence about his own rehabilitation designs and assumptions, and the resulting financial calculations, no or alternatively very little weight.
(b) The Appellant has not established that Mr Thompson has sufficient qualifications and expertise to give expert evidence concerning mining or metalliferous mining rehabilitation generally, or alternatively that he is qualified to give expert evidence about the risks and rehabilitation requirements concerning the waste rock dumps and TSF.
(c) If the Court determines that Mr Thompson is capable of giving expert evidence, it should be given little or no weight, and the evidence of Mr Anderson should be preferred.
(d) The Court should rely upon the rehabilitation requirements and assumptions adopted by Mr Anderson, and the financial assurance calculations he has prepared.
(e) The financial assurance should be calculated on the basis that rehabilitation of the TSF involves high risk material. Alternatively, the calculation should be made on the basis that the rehabilitation involves low risk material.
(f) The financial assurance should be calculated on the basis that rehabilitation of the waste rock dumps involves high risk material.
Alternatively, the calculation should be made on the basis that the rehabilitation involves low risk material.
(g) A contingency amount should be included in the financial assurance calculation.”
Chronology
CHRONOLOGY
Date | Event | Source |
December 1996 | The Tailings Storage Facility is constructed at the Blackjack site | Exhibit 29 |
July 2003 | Citigold prepares an Environment Management Overview Strategy for the Charters Towers Gold Project (Central) Blackjack Project and Warrior (Imperial) Project sites | Exhibit 40
|
02.12.03 | Citigold is granted an amended environmental authority for its mining activities at Charters Towers | Exhibit 51
|
24.10.05 | Citigold is granted an amended environmental authority for a non-code compliant level 1 mining project for its mining activities at Charters Towers | Exhibit 47 at [9]
|
06.08.10 | The Department issues Citigold with a notice to conduct or commission an environmental evaluation. | Exhibit 31 page 8.
|
2011 | Cheryl Low prepares an environmental report for Citigold in response to the Department’s notice to conduct or commission an environmental evaluation | Exhibit 23
|
11.11.11 | The Department issues Citigold with a notice to conduct or commission a further environmental evaluation | Exhibit 31
|
2012 | The Department commences an operational review which includes a review of the Department’s financial and following assurance guideline | Exhibit 10 at [11]
|
09.04.13 | Citigold lodges a replacement plan of operations (April 2013 – April 2015) with the Department | Affidavit of Samuel Hedge affirmed 13 March 2015 at [8(f)] |
01.05.13 | The Department decides that the amount of financial assurance required for Citigold’s mining activity is $8,591,703.68 | Affidavit of Samuel Hedge affirmed 13 March 2015 at [8(g)] |
10.05.13 | Citigold applies for an internal review of the Department’s decision |
|
23.05.13 | The Department considers Citigold’s application for internal review and decides to reduce the financial assurance required to $8,067,379.71 | Exhibit 47 at [16]; Affidavit of Samuel Hedge affirmed 13 March 2015 at [8(h)] |
31.05.13 | The Department’s guideline Financial assurance under the Environmental Protection Act 1994 (V1) is rescribed under the Environmental Protection Regulation 2008 (Qld) | Exhibit 10 at [19]
|
05.07.13 | Citigold appeals to the Land Court against the Department’s review decision, resulting in appeal EPA194-13
| Affidavit of Mark Lynch affirmed 9 March 2016 at [4]; Affidavit of Samuel Hedge affirmed 13 March 2015 at [8(i)]; affidavit of Anne-Maree Kate Ireland affirmed 13 Marc 2013 at [5] |
07.03.14 | The Department’s guideline Financial assurance under the Environmental Protection Act 1994 (V2) is prescribed under the Environmental Protection Regulation 2008 (Qld) | Exhibit 10 at [22]
|
April 2014 | The Queensland Audit Office report “Environmental Regulation of the resources and waste industries” is tabled in the Legislative Assembly | Exhibit 10 at exhibit JSWR01 |
18.08.14 | The personal representatives of the estate of James Joseph Lynch (Estate) apply to the Department of Natural Resources and Mines to purchase the unallocated state land on Lot 72 on Crown Plan SL48027 (USL) | Exhibit 5 at [9]
|
29.08.14 | Citigold prepares an environmental evaluation in response to the notice to conduct or commission such an evaluation issued by the Department on 11 November 2011
| Exhibit 31
|
31.10.14 | The personal representatives of the estate agree to retain the infrastructure used by Citigold for its mining activities on its land after the mining project ceases
| Exhibit 5 at [21]
|
31.10.14 | Citigold agrees to retain the infrastructure used for its mining activities on land its subsidiary controls after the mining project ceases | Exhibit 5 at [22]; Exhibit 55 at [9]
|
31.10.14
| Citigold lodges a replacement plan of operations (October 2014 – October 2016) [Exhibit 6] with the Department (received by the Department on 6 November 2014) | Exhibit 47 at [21]
|
31.10.14 | Citigold seeks the consent of the Department to discontinue Land Court Appeal EPA194-13.
| Affidavit of Anne-Maree Kate Ireland affirmed 13 March 2015 at [16] |
27.11.14 | The Department decides that the amount of financial assurance required for Citigold’s mining activity is $12,509,000 | Exhibit 2 at [22]
|
1.12.14 | Citigold files a Notice of Discontinuance signed by the Department in appeal EPA194-13 on a condition that costs are paid to the Department
| Affidavit of Anne-Maree Kate Ireland affirmed 13 March 2015 at 17 |
04.12.14 | The Department sends a letter stating that the replacement plan of operations has been assessed and meets the content requirements under s 288 of the Environmental Protection Act 1994 (Qld), and that EHP has not approved Citigold’s proposed rehabilitation strategy. | Exhibit 47 at [25]
Exhibit 9 at [20]. |
10.12.14 | Citigold applies for an internal review of the Department’s decision
| Exhibit 2 at [24]
|
22.01.15 | The Department considers Citigold’s application for internal review and decides to confirm the financial assurance required is $12,509,000
| Exhibit 2 at [27]
|
23.02.15 | Citigold appeals to the Land Court against the Department’s review decision
| Affidavit of Samuel Hedge affirmed 13 March 2015 at [8(p)]
|
05.03.15 | Citigold applies for a stay of the Department’s decision pending the outcome of the appeal
| Affidavit of Matthew Martin sworn 13 March 2015 at [2]
|
13.03.15 | The Land Court orders that the Department’s decision be stayed until 31 December 2015 on condition that Citigold pays additional financial assurance in the form of cash or bank guarantee in the sum of $507,696 27.03.15 The Department writes to Citigold requesting further information in relation to the environmental evaluation it submitted on 29 August 2014 | Exhibit 41
|
14.04.15 | The Estate receives a letter from DNRM enclosing an agreement to offer a deed of grant over the USL | Exhibit 5 at [10]
|
15.04.15 | The Department provides Citigold copies of its assessment report and financial assurance calculations | Exhibit 32 at [22]
|
22.04.15 | The Department provides Citigold with the reasons for its review decision | Exhibit 32 at [22]
|
11.05.15 | The persona representatives of the estate advise DNRM that the conditions of the agreement to offer are acceptable but an extension of time is required to complete negotiations with the relevant native title holders regarding an ILUA | Exhibit 5 at [13] |
12.05.15 | Citigold writes to the Department in relation to its request for further information about its environmental evaluation | Exhibit 43
|
13.05.15 | DNRM confirms the personal representatives of the estate have an extension of time to negotiate and registeran ILUA with the native title holders | Exhibit 5 at [15]
|
27.09.15 | Peter Anthony Lynch registers the business name “Queensland Gravel” | Exhibit 42
|
18.11.15 | The Charters Towers Regional Council advises the Estate that it supports, in principle, the proposal to expand the existing gravel business on the site | Exhibit 32 at [14] – [15]
|
18.11.15 | The Charters Towers Regional Council advises Citigold that it supports, in principle, the development of an underground mine tour experience as a post-mining land use
| Exhibit 32 at [16] – [17]
|
25.11.15 | DNRM grants the personal representatives of the estate an extension of time to negotiate and register an ILUA with the native title holders | Exhibit 32 at [8]
|
16.12.15 | The Land Court orders that the Department’s decision be stayed until 29 February 2016 |
|
28.01.16 | Citigold enters into an amended infrastructure agreement with the personal representatives of the estate about the retention of infrastructure after the mining project ceases | Exhibit 32 at [10]
|
18.02.16 | The Land Court orders that the Department’s decision be stayed until 11 March 2016 |
|
04.03.16 | The Department’s guideline Financial assurance under the Environmental Protection Act 1994 (V3) is prescribed under the Environmental Protection Regulation 2008 (Qld) | Affidavit of Thomas Ambrose affirmed 9 March 2016 at [6] |
06.03.16 | Citigold enters into infrastructure agreement with Charters Towers Gold Pty Ltd about the retention of infrastructure after the mining project ceases | Exhibit 55 at [13]
|
10.03.16 | The Land Court orders that the Department’s decision be stayed until the delivery of the decision on Citigold’s application dated 1 March 2016 |
|
The Hearing
Urgency
“The original plan ceases to apply if it is replaced.”
The Relevant Legislation
“And you would agree that the EA holder has a positive obligation to comply with its plan of operations?---Correct.
And a plan of operations is really a vehicle through which the mining company tells the department what it’s doing, when it’s going to do certain activities, how it proposes to comply with its EA – sorry, do you agree with that so far?---Yes, I do.
Yes. Okay – how it proposes to rehabilitate after the cessation of mining?---Correct.
And how much it thinks it will cost to rehabilitate the land in accordance with conditions of the EA?---Correct.”
288 Requirements for plan of operations
“10.0 FINACIAL ASSURANCE CALCULATION
The total financial assurance of the Project is $587,000 (refer to Appendix D).
The existing financial assurance lodged with the administering authority is $492,304.”
“Schedule A – General
Financial Assurance
(A1-1) Provide a financial assurance in the amount and form required by the administering authority prior to the commencement of activities proposed under this environmental authority.
NOTE: The calculation of financial assurance for condition (A1-1) must be in accordance with Guideline 17 and may include a performance discount. The amount is defined as the maximum total rehabilitation cost for complete rehabilitation of all disturbed areas, which may vary on an annual basis due to progressive rehabilitation. The amount required for the financial assurance must be the highest Total Rehabilitation Cost calculated for any year of the Plan of Operations and calculated using the formula: (Financial Assurance = Highest Total Annual Rehabilitation Cost x Percentage Required)
(A1·2) The financial assurance is to remain in force until the administering authority is satisfied that no claim on the assurance is likely.
NOTE: Where progressive rehabilitation is completed and acceptable to the administering authority, progressive reductions to the amount of financial assurance will be applicable where rehabilitation has been completed in accordance with the acceptance criteria defined within this environmental authority.”
292 Requirement to give financial assurance for environmental authority
295 Deciding amount and form of financial assurance
costs and expenses includes monitoring and maintenance costs and expenses.
530 Decision for appeals
Division 2A Amount and form of financial assurance for environmental authorities
17B Guideline prescribed—Act, ss 294 and 295
For sections 294(3)(b)(ii) and 295(3)(b) of the Act, the guideline called ‘Financial Assurance under the Environmental Protection Act 1994’ is prescribed.
Editor’s note—
The guideline may be accessed on the department’s website at .
“(iii) Calculating financial assurance
For small scale mining activities, the EP Regulation prescribes the amount of FA required.
Certain other mining activities (mining claims, exploration permits and mineral development licences) are authorised with standard conditions and eligibility criteria under the EP Act. The relevant publications are prescribed under the EP Regulation and outline how the FA is to be calculated. These are:
For all other activities requiring a decision on the amount and form of financial assurance (regardless of whether they have submitted via a plan of operations or gone via an application process), the approved calculation method is outlined in Appendix A. In summary this method involves:
“Appendix A – Approved calculation method
The following methodology applies to mining leases, other non-mining resource activities and prescribed environmentally relevant activities (e.g. landfills, quarries).
The department has developed a mining and a petroleum and gas FA calculator to help facilitate consistency in calculating FA. The calculators can be downloaded from the Queensland Government Business and Industry Portal at http://www.business.qld.gov.au/business/running/environment/licences-permits/financial-assurance-rehabilitation/financial-assurance-security-deposit.
EA holders who calculate their FA using the departmental FA calculator will find that the assessment of their FA application is significantly streamlined.
EA holders that do not calculate their FA using the departmental FA calculator can still achieve a streamlined assessment of their FA if they have previously had their calculator recognised by the department. Industry calculators can achieve recognition if they follow the recognition process outlined below in Part 2.
All other industry calculations will undergo a complete assessment which may include the department comparing the industry calculation of FA against the departmental calculator values.
Regardless of which type of calculator is used, all FA calculations must follow the steps outlined in Part 1 below.
Part 1: Criteria for Calculating Financial Assurance
Step 1: Calculate 100% rehabilitation liability
The total rehabilitation liability reflects the total potential costs to rehabilitate significantly disturbed land, in a way that will ensure compliance with environmental conditions of the EA. The total rehabilitation liability must:
The total rehabilitation liability does not:
The total rehabilitation liability must not:
Step 2: If applicable, apply the discount and then calculate proposed FA
In recognition of the low incidence of non-compliance, low risk of default, and good environmental performance/lower risk of environmental harm by some operators, the department has adopted a discount system so that operators may reduce the amount of FA payable, to an amount below 100% rehabilitation liability for significantly disturbed land. Access to the discount is subject to mandatory pre-requisites and the amount of discount attainable is based on a number of criteria (e.g. financial stability, measures undertaken to reduce rehabilitation liability/risk of environmental harm etc.). The maximum allowable discount is 30%. The criteria are listed in Appendix B.
Step 3: Calculate proposed FA
The final FA can be calculated by subtracting the discount amount from the 100% rehabilitation liability amount…”
“provides information on both progressive and final rehabilitation requirements for site specific resource projects operating in Queensland under the Environmental Protection Act 1994.”
“This guideline is to assist mining companies to propose acceptable rehabilitation outcomes and strategies during the planning stages of a mine or when changes to the proposed rehabilitation outcomes and strategies become necessary during the operational stages of a mine.
The guideline also explains how the administering authority will assess whether progressive or final rehabilitation for either new or established mining projects is satisfactory…”
“1.4 Other relevant guidelines
The following guidelines should also be consulted:
Triggers for environmental impact statements under the Environmental Protection Act 1994 for mining, petroleum and gas activities (EM1128)
Financial assurance under the Environmental Protection Act 1994 (EM1010).”
“2. Discount system for all other activities
A discount will apply to the gross FA liability for an EA, where the EA holder can demonstrate that it meets all mandatory pre-requisites (listed in Table 1 below) and the discount criteria (outlined in Tables 2-4 below) which are relevant to the discount they are applying for.
…
Mandatory Pre-requisites
The mandatory pre-requisites outlined in Table 1 are benchmarks that each EA must meet in order to apply for any subsequent discounts.
Discounts
There are 3 discount categories and an EA holder may choose any discount to apply for, however the maximum discount that can be awarded is 30%. The following explains the purpose of awarding discounts under each category:
“In assessing the acceptability of rehabilitation objectives, indicators and completion criteria that may be proposed for a mining project, the administering authority will have regard to a hierarchy for mine rehabilitation that is similar to the waste hierarchy. The strategies listed higher in the hierarchy should be adopted in preference to those listed lower, unless there are significant environmental, economic or social issues that override such a selection. The rehabilitation hierarchy, in order of decreasing capacity to prevent or minimise environmental harm, is:
“What the respondent must do is make a decision about the amount and form of the financial assurance and that’s set out at section 295 and, in particular, section 295 subsection (1)(b) – sorry, (2)(b).[63]
…
The relevant considerations are, in making the decision regard must be had to relevant regulatory requirements and for the guideline and regard only is the submission of the department.”[64]
“‘Must have regard to’ represents mandatory language, as compared with weaker expressions such as ‘may have regard to’ or even ‘having regard to’ (considered in Biggs v. City of Mount Gambier (1981) 49 LGRA 177). The expression indicates to my mind that some (but not necessarily decisive) weight must be given to the State planning policy which (perhaps significantly) is honoured as the only policy requiring to be considered, in contrast with other statutory provisions which may list numerous factors, often topping them off with reference to ‘any other relevant circumstance’ (as in s.9(2)(p)) in the Penalties and Sentences Act 1992).”
“When sub-s (7) directs the Permanent Head to “have regard to” the costs, it requires him to take those costs into account and to give weight to them as a fundamental element in making his determination. There are two reasons for saying that the costs are a fundamental element in the making of the determination. First, they are the only matter explicitly mentioned as a matter to be taken into account. Secondly, the scheme of the provisions is that, once the premises of the proprietor are approved as a nursing home, he is bound by the conditions of approval not to exceed the scale of fees fixed by the Permanent Head in relation to the nursing home. In many cases it is to be expected that the scale of fees will be fixed by ascertaining the costs necessarily incurred and adding to them a profit factor. In the very nature of things, the costs necessarily incurred by the proprietor in providing nursing home care in the nursing home are a fundamental matter for consideration.”
“Notwithstanding the number of occasions on which the “weight as a fundamental factor” language has been mentioned as applicable in subsequent cases, in my opinion, there is no general principle that a matter required to be taken into account must be given “weight as a fundamental factor”, if that proposition is intended to convey more than that the matter must be regarded. Beyond that, the question of what is required is a matter which depends on the particular provision in its context. Any other general approach trends judicial review into the merits of administrative action, in my view, and is better avoided. The question is what does the section, properly construed, require? Once that question is answered, there is no further “weight as a fundamental factor” principle to be applied.”
“In some cases it may be apparent that amongst the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question. This was true of the particular matter referred to by Mason J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 338. As his Honour’s reasons in R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”. But the converse is also true. The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152 at [57] (per Sackville J).”
Onus of Proof
Appellant’s Submissions
“Where a right of appeal is given to a Court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the Court will undertake a hearing de novo, although there is no absolute rule to that effect.”
“The CPMA does not state which party is to bear the onus. While it is the person who is dissatisfied with the decision to give the notice who brings the appeal, it does not necessarily follow that that person bears the onus. In conducting a de novo hearing, the Court will be concerned with whether a notice ought issue. That notice disturbs the pre-existing status quo, by requiring the recipient to comply with a notice. Failure to do so is punishable by a maximum penalty of 3000 penalty units.
Prior to the issue of the notice it was for the chief executive to determine whether such a notice should issue. Such a notice ought not have issued unless the chief executive was satisfied that it was appropriate in the circumstances. Similarly, the Court, on a de novo hearing, ought not dismiss the appeal unless it is so satisfied. In such circumstances the onus properly falls upon the respondent, as the authority contending that it is appropriate that the notice be given. The respondent properly accepts that it bears the onus in such appeals.”
Respondent’s Submissions
Assessment
Which Guideline applies?
Analysis of Witnesses
“…there’s been a – a family connection and a family interest, a desire to see this project succeed; and therefore we’ve taken a very close personal interest in it.”[110]
“(i) In the Statement of Reasons, the Respondent stated that:
“1. I am an Executive Director and the Chief Scientist of Citigold Corporation Limited (Citigold), a publicly listed mining and exploration company.
“Major Achievements
“JORC STATEMENT - The following statements apply in respect of the information in this report that relates to Exploration Results, Mineral Resources and Ore Reserves: The information is based on, and accurately reflects, information compiled by Mr Christopher Alan John Towsey, who is a Corporate Member and Fellow of the Australasian Institute of Mining and Metallurgy and a member of the Australian Institute of Geoscientists. Mr Towsey is a consultant geologist. He has the relevant experience in relation to the mineralisation being reported on to qualify as a Competent Person as defined in the Joint Ore Reserves Committee GORC) Australasian Code for Reporting of Identified Mineral Resources and Ore Reserves, having worked on the Project as a consultant and former full-time employee since 1999. Mr Towsey has consented in writing to the inclusion in this report of the matters based on the information in the form and context in which it appears.”
“Dumps and stockpiles - Run-of-Mine (ROM) stockpiles are established at the Imperial Mine and at the gold processing plant to ensure surge capacity from variable underground production is stored awaiting haulage to the processing plant or crushing at the plant. Waste material from the Imperial Mine is dumped on an above-ground stockpile at the mine. The material is non-acid-forming granite and granodiorite, which is crushed as required for gravel for mine roads and backfill.”
“Tailings disposal - tailings comprise mostly 80% minus 106 micron fine quartz sand, crushed granite, minor clay and some metal sulphides (pyrite, galena and sphalerite) averaging around 9000 ppm lead and zinc and 0.05 to 0.2 ppm gold at a slightly alkaline pH of 8.5 to 10. There is no acidic run-off as process water has lime added to it to maintain an alkaline pH, and the weathered granite generates calcium carbonate as the feldspars decompose, neutralising any acid that may form from the decomposition of the sulphides. Tailings are stored in a registered tailings storage facility ('TSF') at the processing plant, with process water being recycled. The very high evaporation rate in the semi-arid Charters Towers area ensures tailings are solidified. The TSF measures about 600 metres by 300 metres with a design storage capacity of some two million tonnes and area for expansion.”
“An allowance of $2 per tonne of ore mined has been budgeted to cover progressive rehabilitation and final mine shutdown. With the current planned production schedule, this amounts to some A$18 million over 15 years.”
“PAF doesn’t go into the waste rock. Potentially acid forming material is the ore that we put through the processing plant.”[148]
…
“You have to understand how the mining procedure goes. We drive tunnels through the background material. That is looked at as material goes through. We then drive along the ore bodies, and that material is actively sampled every face. We advance about 3m every time we blast. Each face is sampled with a number of samples taken across that area. So there’s a chemical analysis taken in potentially acid forming material every three metres…where we encounter it.”[149]
“Well, you could not say that without knowing what the alkaline load, so to speak, and the acid load in the TSF is?---
We do know. We know there’s two per cent sulphide in there. Alright? There’s two per cent sulphide. We’ve established that from all the chemical analysis we’ve done. Part of that is galena, lead sulphide, which is acid consuming, not acid producing. Part of it is sphalerite, zinc sulphide, which is also acid consuming. And there is a small amount of pyrite which is acid producing, but it is so outweighed in its own sulphide by the acid consuming sulphides - not all acid - not all sulphides produce acids. Some sulphides, galena and sphalerite, are acid consuming. And we have more acid consuming material, by a long way, than we have acid producing. So there’s no way that anything in that tailings dam can produce acid, even if it is subjected to 100 years of adding acidic rain to it or adding acidic humic acid of the soils.”[150]
“We don’t have waste rock. We have processed everything which looked like it might contain mineralization. We have overburden. We have non-mineralized materials. We don’t have a low-grade stock pile. We don’t have mineralized material sitting at the surface. We haven’t – what – what we characterize as waste is what has gone through the processing plant and is now called tailings. So we have overburden stock piles. We have tailings. We don’t have anything I would describe as a waste rock stock pile which has been subject to some sort of processing.”[152]
“It has a ring main around the outside. It feeds from the ring main to a series of spigots which then deposit the tailings in certain areas and we have to move the area to different areas in order to keep the pond area up where we need it to be and to drain the beached areas to ensure we have a dry TSF.”[162]
“The purpose of the trials is to monitor the rate at which vegetation regenerates over rehabilitated areas so we can harness that material and weigh how much grass is going to be developed on that area, because the final end result of capping the TSF is to feed two cows. It’s to be returned to lower intensity grazing which is one cow per 8 hectares. We have a 20 hectare TSF. It only has to support two cows. We have to measure to make sure there’s enough grass - is going to grow in top soil we put on the TSF to support two cows.”[163]
“And Citigold doesn’t carry out selective handling of the waste rock that’s produced?---We do at times where it’s possible.
It hasn’t carried out any systematic handling – sorry. I withdraw that. It hasn’t carried out any consistent selective handling process for the waste rock in the waste rock stockpiles, has it?---Yes. It has.
Well - - -?---That’s how it got on the waste rock stockpile. It was selected – it was identified as waste, selectively handled as waste, and put onto a waste stockpile.
And that’s the extent of it, isn’t it. No further tests?---We don’t have waste rock. We have processed everything which looked like it might contain mineralisation. We have overburden. We have non-mineralised material. We don’t have a low grade stockpile. We don’t have mineralised materials sitting at the surface. We haven’t – what – what we characterise as waste is what has gone through the processing plant and is now called tailings. So we have overburden stockpiles. We have tailings. We don’t have anything I would describe as a waste rock stockpile which has been subject to some sort of processing.
Well, the overburden is waste rock?---No. It’s not.”
“Well, are different loads put in different spots, you know, depending on the characterisation of the overburden?---We have an arrangement in our EA where, if material is identified as potentially hazardous, it may be inserted into a part of the stockpile and therefore isolated within the stockpile. To my knowledge, that’s never been done, because the material we are looking at is simply background material that we’re shifting.
And it’s background material that you don’t systematically test and characterise?---No. Because it is background material. The whole point of contamination is it has to be different from background.”
“Now, the TSF contains hazardous contaminants?---We are authorised to put hazardous contaminants into that TSF. Correct.
Yes. And it contains hazardous contaminants?---It contains contaminants which could be hazardous under certain circumstances.
Yes. And they’re capable of causing environmental harm?---Only if they escape from the TSF. We’re authorised to put them in there. That’s the container for them.
And the TSF is – the tailings are the waste product of the ore body and the liquor that’s applied to the ore body - - -?---Correct.
- - - through the processing?---Yes.
And the tailings, therefore, contain heavy metals?---Yes. They do. Sulphates?---Yes.
And sulphates contribute to salinity?---Under certain circumstances, yes.”
“So why is it that your rehabilitation strategy contained in the plan of operations is so vastly different to that of Mr Anderson and Mr Thompson?---The requirement for financial assurance it should be no more than the amount actually required to do the job. So we looked at what was required to do the job, to feed 10 cows, which basically is the restoration of 77 hectares to low intensity grazing at a rate of one cow per eight hectares. We devised a strategy which we felt resulted in meeting the outcomes of the EA, that the landforms would be stable, they would be safe, non-polluting and self-sustaining to meet those outcomes. We did that, obviously, at minimum cost.”
“In my current position and in my previous roles with the Department, I have been involved in the assessment of financial assurance under the Act, and with over 15 years of experience in regulation of the mining industry in Queensland, I have gained a thorough understanding of mine site operations, closure and rehabilitation.
Particularly in the last five years or so, the Department has recognised that it generally holds insufficient financial assurance for mining and petroleum and gas projects across Queensland. This has come about following the 2012 review on financial assurance conducted by the Department, a 2013 report produced by the Queensland Audit Office and the development of the financial assurance calculator in 2014.
…
As a consequence of changes to the financial assurance regime, the Department must now assess financial assurance amounts having regard to the Financial Assurance under the Environmental Protection Act 1994 guideline, version 2.
In my experience this has meant that the amount of financial assurance calculated under the guideline has generally increased as compared to historical financial assurance requirements, to more accurately reflect contemporary costs of rehabilitation.”
“103. Although a contingency fee is not expressly referred to in the guideline, the inclusion of a 10% contingency would help cover unknown or unexpected or under costed items, and ensure that all total potential costs to rehabilitate significantly disturbed land are covered.
Total Financial Assurance Required
Table 8: Department's Current Assessment
Domain | Rehabilitation Liability |
Domain 1: Infrastructure | $2,182,971.20 |
Domain 2: Adits and Shafts | $1,150,000 |
Domain 3: Tailings Storage Facilities (1) | $2,545,500 |
Domain 4: Overburden & Waste Dumps (1) | $2,983, 712.60 |
Domain 5: Water Management | $47,280 |
Domain 6: Pits | $480,700 |
Domain 7: Other Management Issues | $30,000 |
Subtotal | $9,420,163.80 |
Contingencies | Rehabilitation Liability |
Project Management (10%) | $942,016.38 |
Environmental Maintenance and Monitoring (5%) | $471,008.19 |
Contingency (10%) | $942,016.38 |
Subtotal | $2,355,041;79 |
Total Rehabilitation Liability for the Operation and recommended bond. | $11,775,204.75 |
Table 9: Total Financial Assurance Calculations (excluding GST)
Party | Amount |
Citigold (Plan of Operations 2014) | $534,016 |
Department (November 2014) | $11,372,465 |
Mr Thompson | $1,078,437.80 |
Mr Anderson | $11,775,204.75 |
Department (current - with contingency fee) | $11,775,204. 75 |
Department (current - without contingency fee) | $10,833, 188.37” |
“41. A key difference between Citigold and the Department concerns the effect of Citigold's landowner agreement and landowner statement, and whether it is appropriate for infrastructure which is the subject of the agreement and statement to be excluded from the financial assurance calculations.
i. Whether the landowner agreements or statements are sufficiently certain and enforceable.
ii. Whether there might be a change in ownership of the land having regard to the expected life of the project.
iii. Whether the landowner has obtained any necessary approvals to permit the use of the proposed infrastructure, and more generally, whether there is sufficient certainty that the proposed use will proceed.
iv. The risk that the proposed use of the infrastructure does not ultimately occur, or that it is used but subsequently abandoned, and the likely rehabilitation costs if that occurs.
“399. By reference to paragraph 44 of the Affidavit of Ms Minnesma, she confirmed in evidence that those matters contained in paragraph 44 are views held by her and her alone but it’s not something that has been identified in either the guideline or legislation.
“130. In circumstances where neither the EP Act (in particular s 295(3)), nor the guideline require the automatic exclusion of infrastructure subject to landowner agreements or statements, the Court should take the approach of Ms Minnesma and Mr Anderson and include all of the infrastructure in the financial assurance calculations.”
“123. Although Ms Minnesma gave evidence at a time when version 2 of the guideline was in force, her evidence remains generally relevant to both version 2 and version 3 of the guideline.”
“[395] The Respondent has not led any evidence from Ms Minnesma in respect of the way in which the calculation of financial assurance should be undertaken pursuant to the new guideline Exhibit 69 and indeed Ms Minnesma has not filed a further Affidavit to state whether or not her opinion would change and if so to what extent in respect of the new guideline gazetted 4 March 2016.
[396] Accordingly Ms Minnesma’s evidence in respect of the calculation of financial assurance must be confined to her views in respect of EM1010 [Exhibit 26]. At no point in her evidence nor in her Affidavit does Ms Minnesma state that her evidence is anything other than that confined in EM1010.”
The Expert Evidence
“… So I suggest, when one looks at your CV, there’s very limited experience listed in respect of mining rehabilitation?---I wouldn’t use the word very, but there’s limited experience in mining rehabilitation areas, yes.
All right. And I suggest that that really reflects the fact that it’s not your main area of work?---It – it certainly hasn’t been over the many years. Yes.
All right. And I suggest it’s still not your main area of work now?---It’s developing, the area of work. The – the type of disciplines, the type of projects that you get involved in, in a career as long as mine, does vary over time. Yes.
Well, you never know where it might go?---That’s correct, yes.
All right. But – but certainly up to – to this point in time it’s been a very small slice of your experience?---That’s correct, yes.
All right. But certainly you – you have your Bachelor of Soil – of Agricultural Science with a major in soil science and – and, you know, you’re well qualified in that area. And quite apart from experience itself, you don’t have any particular academic qualifications in land rehabilitation or mining land rehabilitation?---No. That’s correct, yes.”
“I’m passingly familiar with it.”
“All right. And you said you’re not particularly familiar with the managing acid and metalliferous drainage document?---No. I’ve seen reference to it, but I’m not familiar with it.
And are you particularly familiar with the MEND manual at all?--- I’m aware of its existence. I’m not familiar with it.
Are there any mining manuals or guidelines that you are familiar with?---I predominantly rely – not in the mining sector, as we’ve said earlier. There was reference made to the NEPM guidelines, which I’ve used in my report, but the answer to your question is no.
So you’re not – all right. So you’re not generally familiar with any mining guidelines or manuals?---That’s true.
And you have limited experience in mining rehabilitation?---I have experience. It’s a question [indistinct] limited or not, but that’s a matter I can - - -
Well, I suggest it’s limited experience?---Well, I disagree with you. I would disagree with a lack of experience in rehabilitation.
And you have no academic qualifications in the area?---That’s correct. All right?---Sorry. That’s correct. Yes.
So if you’re experienced in the area, why aren’t you familiar with the guidelines and manuals?---I’m experienced in rehabilitating – rehabilitation of degraded lands in catchments. I’ve got extensive experience in that.
Well, you seem – do I take it from that that you’re saying you’re not qualified to assess the risks?---That’s a very long bow to draw. As I’ve stated earlier, on numerous occasions now, on the data that’s available to me, there’s insufficient evidence there to indicate that these are high-risk structures, high-risk facilities.
… All right. And I suggest that part of your duty as an expert is to make reference to any appropriate literature?---That’s correct. Yes.
And you didn’t refer to any literature – relevant literature in your first report?---No, I did not. First report, as you will note, is the review of the biophysical aspects of the site and what the implications - - -
Well, you deal with the issue of the waste rock dumps and the TSFs and the risks associated with those?---That’s correct.
And the – as a consequence of your assessment of the risk, the required rehabilitation treatment?---That’s correct. Yes.
And you haven’t referenced any of the literature?---No. That’s correct. And you’re not familiar with it?---That’s correct.
And you didn’t reference NEPM in your first report?---No. I didn’t…”
“All right. So you didn’t consider any literature, and you didn’t consider NEPM in your first report?---No. And NEPM was raised, actually, by my counterpart during the JER process.”
“You have no knowledge of the relevant mining literature – mining rehabilitation literature?---I have limited knowledge of it, yes.
I thought you said earlier today that you had no knowledge of it?---That’s not – that’s not what I recall saying.
Well, you’re not familiar with any of the manuals or guidelines?---No, not familiar in detail. That’s for sure, yes.
So how can you express an expert opinion about the type of covering that should be applied?--- I’m basing it on my experience in the agricultural sector, where there’s a significant amount of land reforming, land reshaping undertaking in some cases to remediate degraded areas; in other cases to develop large-scale irrigation schemes.”
“All right. Now, paragraph 47, you – well, at 46 you draw on what I suggest is your primary area of expertise, and we delve into the concept of potential acid sulphate soils. I suggest that has just no relevance to this at all?---In terms of the criteria that are used to – you know, potential acid sulphate, which is exposed – if it’s exposed to oxygen, does oxidise, and you get the same type of acid effects you get that they’re talking about here.
Well - - -?---PAF and PASS are very, very similar type processes. So it’s not true to say the process itself is irrelevant. It’s a very – it’s an almost identical process. PASS commonly will release – when acidification happens, will release toxic levels of aluminium, for example.
They may both involve oxidisation, but – oxidation, but potential aid [sic] sulphate soils is completely different to potential acid-forming rock. They’re chalk and cheese?---It’s a different environment, that’s correct.
And at 47 you say that there are no testing – there aren’t similar testing criteria for PAF materials. I suggest that’s just wrong?---Well, for PASS materials, it’s – in the acid sulphate area or potential acid sulphate, there are set criteria’s for the total – for the amount of total sulphur, the amount of oxidisable sulphur, which are used to determine whether it’s a potential acid sulphate. All I’m saying there is that there’s – I can’t – I’m not aware of – there may well be, but I’m certainly not aware of a similar type of criteria to be applied to PAF. That’s not to say that I don’t – that I dispute that PAF is – I believe PAF is a real thing, but the same level of criteria doesn’t exist as existed in the potential acid sulphate.
Well, what about net acid generating tests?---They’re tests, but they’re not criteria. All right. I see. You’re saying criteria. I understand. Right?---Yes.
Well, I suggest that there are criteria relating to PAF, and that’s in the manuals and literature relevant to - - -?---I’m not in a position to disagree with that.
All right. But you just don’t know, do you, because you’re not familiar with the literature?---That’s correct.
And so it’s not appropriate at all, I suggest, to try to relate – and this is in paragraph 48
– acid drainage from soils to PAF?---Paragraph 48 is saying that in the absence of hard data, which is generally agreed to be the case for this project, then the actual presence of acid drainage and the observed effects is – should be an acceptable surrogate for whether the process is happening and producing effects.
Well - - -?---That’s what I’m saying in 48.
- - - it’s understandable you’d want to draw upon the area of your primary expertise, but you should be referring to the mining literature, shouldn’t you, and taking steps consistent with that, not adopting some other discipline?---I wouldn’t – yeah, I wouldn’t disagree with that.”
“MR DILLON: …Mr Thompson, do you have any experience, in terms of metalliferous mining rehabilitation at all?
MR THOMPSON: Excuse me – no. These issues were canvassed in the first, if I can remember rightly, but the answer’s no.
MR DILLON: All right. And have you – and I’m not talking about other land forms, I’m specifically asking for these – have you ever designed a TSF cover?
MR THOMPSON: No.
MR DILLON: Have you ever designed a waste rock dump cover?
MR THOMPSON: Yes, as part of the CSG projects that we worked at.
MR DILLON: Waste rock dump produced by the CSG; is that what you’re talking about?
MR THOMPSON: Yeah, waste materials, including waste rock. Yes.
MR DILLON: All right. How many covers have you designed - - -
MR THOMPSON: There’s an issue about – we’ve assessed three in recent times, in terms of their efficacy and whether they conform to the EA requirements.
MR DILLON: All right. Now, when you say you assessed them, did you design them or did someone else design them, and you assessed them?
MR THOMPSON: No, no. We reviewed the design and then we looked at the construction detail, and looked at their performance and made recommendations that had some ongoing implications for compensation under the arrangements under the landholder agreements.
MR DILLON: All right. So I thought you said earlier you had designed them. So you’ve never designed, then, a waste rock dump cover?
MR THOMPSON: We’ve reviewed the designs of others – yes. We haven’t - - -
MR DILLON: All right.
MR THOMPSON: - - - designed them ourselves. No.
MR DILLON: And – and that’s three waste drop [sic, rock] dumps?
MR THOMPSON: Yeah. In recent times. Yes.
MR DILLON: All right. And that exclusively in – well, sorry – ever over the entire career you’ve had?
MR THOMPSON: That’s correct. Yes.
MR DILLON: Right. So it’s three total.
MR THOMPSON: Mmm.
MR DILLON: All right. And that was a review process only?
MR THOMPSON: It’s a review and assessment and I regard a review is – you do a desk-based review, you see. What – what did they – what were they required to do? What did they do and the assessment process is irrespective of all of that, what does it look like in the field and what sort of data is there around to indicate compliance.”[240]
“• Master of Agricultural Science (Research), Mine Rehabilitation, University of Queensland, 1989;
• Bachelor of Agricultural Science (Hons), Land Resources Management, University of Queensland, 1984; and
• Company Directors Course Diploma, Australian Institute of Company Directors, 2004”
“Expertise: Strategic Environmental Planning, Management & Compliance - Mining, Industrial, Utilities and Land Development
Land and Water Resources Management
Environmental Assessment, Auditing and Management Systems
Professional Environment Institute of Australia
Affiliations: Australian Society of Soil Science
Australasian Institute of Mining and Metallurgy
Barron River Integrated Catchment Management Association Inc.
Past member (2000-2008), GBRMPA Local Marine Advisory Committee
Past member (2005-2007), Great Barrier Reef Consultative Committee (Ministerial appointment)
Register of Ce1tified Auditors, Lead Auditor (Environmental) - Certificate No l3704
Certified Professional in Erosion and Sediment Control - Ce1tificate No 2723 Certified Environn1ental Practitioner - Certificate No. 002.”
“Mr Anderson has a distinguished CV. He articulated his experience on numerous occasions throughout the course of these proceedings but it can be summarized as relating to planning studies, impact assessment, environmental audits, some experience with financial assurance, and implementation of rehabilitation programs, trials and assessment of performance against success criteria. His previous experience as a regulator has arguably influenced his working life and the principles that he continues to apply in practice today.” (footnotes omitted)
“Despite his extensive experience, Mr Anderson appeared reluctant to apply his experience in a sensible way to the task at hand, but rather preferred the position that until full scientific certainty is achieved, then the extent of what he could say was that you had to revert to the high risk options in the calculator.”
“…You were asked some questions about your experience?---Yes.
How many financial assurance matters have you been involved in over the course of your career?---It would be – it’s hard to assess, but between 50 and 100. A number of those was done as a regulator, but it would be in the order of 50 and 100 which I’ve had some type of involvement in financial assurance.”
“All right. And how many years have you been involved in the area of mining rehabilitation?---If I can – if I – I need to write things down for maths because I’m – that’s how my brain works. If I can - - -
Yes. In approximate terms?---If I can just go and use – so I graduated in 84 as an [indistinct] scientist. I spent four years as a research – well, two years full time as a research scientist and two years part time as a research scientist, studying Gregory – it’s the first study done on top soil management basically in Australia. So my mining career started as a research scientist. I then worked for a year as an agronomist. Whilst an agronomist, I primarily interpreting soils – soils data for farmers, but during that period I also interpreted data – I recall Mount Isa mines in terms of rehab.
And then I entered the Mines Department for two years, and that was – I was called an ecologist at that stage because the state was used to geologists. The field of environmental practitioners really didn’t – wasn’t really there so they called me an ecologist, and I was the first ecologist in North Queensland, and operated in that field during – then Goulburn, and saw the development of mine licence conditions and saw the development of technical guidelines which came out in draft form about ’91, issued in formal draft in ’93 and then formalised in ’95. And then I was around the people who prepared the cyanide guidelines in Queensland, which is a precursor to all the contemporary standards on – like you see in hazardous dam manuals. All the logic behind – well, not all the logic, but the underpinning logic for those guidelines came from the cyanide guidelines, which was drafted by Peter Curley and Phil Carson back in ’91. And then I moved on from the Department and went – and went into consulting, and it was about ’93. And then from ’93 to current I have been immersed in the mine rehab field in Australia, so I’ve worked throughout Queensland on every sector except for uranium, and I’ve worked in Western Australia and Tasmania and then I’ve done work in – in Kaling goldmine in Indonesia, Ok Tedi gold copper mine in – in Ok Tedi, and most of my projects industry – and I’m doing current projects. Most of – my CV shows that I tend to work in projects and remain in the project from – from commissioning through to – through the closure, so I get involved in all aspects of – of environmental management associated with the mining sector across a variety of mineral types. So I don’t know, it must be 27 years or – whatever the maths works out to, that’s – that’s what it is.”[248]
“Mr Anderson. It’s – I’ve been – I’ve been involved in assessment in designing covers for tailings dams and waste rock dumps in [indistinct] sector and just to assist the – the – the process of designing a cover is a multi-disciplinary cover, so it involves different expertise from different individuals.
My role when I was younger was doing looking at trials for red mud at Weipa at Hidalco and doing trials on working out what was growing in red mud which is – which is a by-product of alumina refinery and then moving forward, I’ve been involved in monitoring of rehabilitation dumps at– specifically at the Red Dome Goldmine…
And then in terms of moving forward, cover’s a very extensive topic. Cover is – there’s books as large as this, like the GARD guidelines, for example, which deal with the cover topic because it’s a worldwide issue in terms of coming up with rehabilitation covers. My role has been of more recent times, last 10 to 15 years, has been working with other disciplines to try to come up with a cover and rehab outcome which is demonstrably acceptable and that spans – so my input to cover has been at a conceptual level into design phase for engineer to go design on, what’s the net percolation rate we’re going to need, so how much water is going to go through the cover and turn up the toe of the [indistinct] dump the tailings dam, can you please model that and design that so we achieve – we achieve something which mimics natural rainfall if we can.
The other aspect of – of speaking to that topic is looking at success criteria for the vegetation component of the outcome so – so what vegetation area are we going to say is acceptable and not acceptable. I certainly provide input for what both in terms of, like, from a grazing aspect and as a nominating dry matter yield or whatever targets you need, moving to the ecological ones with the input from species ecologist, what species – what type of plants are were going to allow to grow there and are those plants going to be acceptable in the short and long term and then moving towards the receiving environment, by providing advice to – to people to say, “Okay. This landform – this modified landform is going to have one-off seepage because all these – all these – as a general rule, all these features leak.” What will be the impact – both the nature of the impact and it’s scale and when will it turn up in the receiving environment …
So in terms of answering the question how much input I had to, you know, design of covers, it spans that because it’s not just designing the cover. One does not just look at designing the cover. It’s the whole story. One is defining the problem and the nature and scale of that problem. What – what impact it’s going to have on the receiving environment and then you come back and say, Okay. Based on all this information, what should I do with this landform to satisfy – to – to deal with the issues which I’ve identified downstream and that sums it up. So I don’t design because I’m not an engineer but I have input to the process and that’s – what I’ve just gone through is describing how, you know – what I have done in the past and how I provide that input.”
“436. Whilst it is noted that both experts agree that the cover design proposed by Citigold is not something that either expert would do [434(h)], there is no evidence to suggest that it would not work. Indeed, Mr Anderson by his own admission says he has taken a ‘high risk’ approach but acknowledges that there is also a ‘low risk’ approach which he directs the courts attention to. In this respect, Mr Anderson acknowledges that he took the high risk approach to both the TSF and WRD.
“174. Mr Thompson:
(1) lacks any academic qualifications directly related to mining rehabilitation or metalliferous mining rehabilitation;
(2) has little or no experience relating to mining rehabilitation or metalliferous mining rehabilitation;
(3) had no knowledge of mining rehabilitation literature, manuals or guidelines in December 2015; and
(4) presently has very limited knowledge of mining rehabilitation literature, manuals or guidelines.
Key Issue – Inclusion or Exclusion of Infrastructure
“66. The Appellant’s position is that the infrastructure contained in the infrastructure agreements and landowner statements, should be excluded from the calculations. This includes infrastructure presently located on unallocated State land which is not subject to any agreement.
(1) The waste rock dumps and TSF are not infrastructure as that term is used in the environmental authority or the guideline. They should both be included in the financial assurance calculations regardless of whether effect is given to the landowner agreements and statements.
(2) Infrastructure on unallocated State land is not subject to any infrastructure agreement or statement at present. Infrastructure located on unallocated State land should be included in the financial assurance calculations.
(3) In any event, whether or not there is an agreement or statement or potential agreement or statement, all of the infrastructure (including waste rock dumps and the tailings storage facility if they constitute infrastructure), should be included in the calculations.
73 In all the circumstances, it remains appropriate to include all of the contested infrastructure items in the financial assurance calculations.” (footnotes omitted)
“Infrastructure
(F9-1) All infrastructure, constructed by or for the environmental authority holder during the mining activities including water storage structures, must be removed from the site prior to mining lease surrender, except where agreed in writing by the post mining land owner / holder.”
“Infrastructure" means water storage dams, roads and tracks, buildings and other structures built for the purpose of mining activities but does not include other facilities required for the long term management of mining impacts or the protection of potential resources. Such other facilities include dams containing hazardous waste, waste rock dumps, voids, or ore stockpiles and buildings as well as other structures whose ownership can be transferred and which have a residual beneficial use for the next owner of the operational land or the background land owner.”
“Note: Some costs may not need to be included for certain suitable infrastructure if the EA holder can provide a written agreement (between the EA holder and the land owner) or a statement (if the EA holder is the underlying landowner) that the infrastructure can remain onsite and can demonstrate that the retention of the infrastructure is consistent with achieving the general rehabilitation goals of a site that is safe to humans and wildlife, non-polluting, and stable. Examples of suitable infrastructure include bores, clean water dams and access roads. This does not negate the need to obtain any other authorisations as required under the EP Act or other legislation.”
“Includes built facilities and services associated with the operations of the authorised activities (e.g. processing plants, sewage treatment plants, power plants, camps, offices, power poles, sheds, workshops and other built structures).”
“E Both parties wish for the Infrastructure on the Land to be transferred by the Authority Holder to the Landowner upon the expiration of the Mining Leases as described in this deed and that the Infrastructure is to be retained by the Landowner after the Mining Leases expire.
F The principal intended purpose for which the Landowner will retain the Infrastructure is for use as a Gravel Business (Principal Intended Purpose) and the secondary purpose is Low Intensity Grazing (Secondary Purpose).”
“Infrastructure means the storage dams, roads and tracks, buildings and other structures constructed for or by the Authority Holder for the purpose of the Mining Activities, including (but not limited to) the items described in Schedule 4.”
“3. Infrastructure
Map zone or area | Details |
Black Jack | Entrance gate and associated bitumen road |
Haul road to rock stockpile area | |
Office complex, patios, verandahs, ablution blocks, crib room, air conditioners and all associated pumps, water, sewage and electrical services, potable water tanks Office car park Rock stockpile laydown area Grizzly and apron feeder | |
Jaw crusher and control room with all associated electrical and water services | |
Cone crusher | |
Screening ng plant and associated conveyors and electrical and plumbing services | |
Fine ore bin and associated conveyors and gantries | |
Lime feed hopper | |
Ball mill and associated gantries, walkways, pumps, motors, electrical and plumbing services and support frameworks | |
Cyclones and associated pumps and screens | |
Gravity bowl, associated gravity circuit and shaker table | |
Gold room, electrowinning cells and all associated electrical, gas and water services, including LPG tanks behind off ices | |
6 vertical liquids tanks 6m x llm and all associated walkways, gantries, concrete foundations, bunds, piping and pumps | |
Cyanide mixing and storage tanks and all associated concrete foundations, bunds, piping and pumps | |
Laboratory, associated air-conditioners and laboratory equipment, all associated electrical, gas and water service | |
Bulk fuel storage tanks | |
All site electrical, gas and water services | |
Warehouses and all associated shelving, benches, electrical, gas and water services | |
Workshops and all associated shelving, benches, electrical, gas and water services | |
Caretaker's quarters and all associated air-conditioners, electrical, gas and water services, storage sheds, green house, potable water tanks | |
All fire extinguishers, fire hoses, reels and associated services, alarms and deluge systems | |
Storm water pond for use as stock water storage | |
| Black Jack PC, Black Jack South and Newton-Butler water storage da m for use i n business and stock water storage |
| All existing roads, boundary, paddock, and security fences and gates, water drains, surplus soil stockpiles, sediment catchment and retention ponds, silt traps, and other miscellaneous infrastructure. |
Stockholm | Whole of site assets and infrastructure including but not limited to below: |
| Rock stockpile laydown a rea |
| Stockholm water storage pit for use in business and stock water storage |
| All existing roads, boundary, paddock and security fences and gates, and any miscellaneous infrastructure and assets |
Imperial | Imperial portal |
| Imperial vent shaft |
| Entrance gate and associated entry road |
| Haul road to rock stockpile a rea |
| Office complex, patios, verandahs, ablution blocks, crib room, air conditioners and all associated pumps, water, sewage and electrical services, potable water tanks |
| All fire extinguishers, fire hoses, reels and associated services, alarms and deluge systems |
| Office car park |
| Bulk fuel storage tanks and all associated electrical and water services |
| Workshops and all associated shelving, benches, electrical, gas and water services |
| Rock stockpile laydown area |
| Washington water storage pit |
| All existing roads, boundary, paddock and security fences and gates, water drains, surplus soil stockpiles, sediment catchment and retention ponds, silt traps, and other miscellaneous infrastructure and assets |
“E Both parties wish for the Infrastructure on the Land to be transferred by the Authority Holder to the Landowner upon the expiration of the Mining Leases as described in this deed and that the Infrastructure is to be retained by the Landowner after the Mining Leases expire.
F. The Principal Intended Purpose for which the Landowner will retain the Infrastructure is for use as a community mining tourism attraction.”
“Infrastructure means the storage dams, roads and tracks, buildings and other structures constructed for or by the Authority Holder for the purpose of the Mining Activities, including (but not limited to) the items described in Schedule 3.”
“Schedule 3 – Description of specific items of infrastructure
(Introduction)
Details |
Central decline and portal |
Entrance gate and associated fences and bunds |
All buildings and warehouses |
Patios |
Verandas |
Ablution blocks |
Crib room |
All air conditioners and all associated pumps |
All water, gas, sewage and electrical services |
Potable water tank |
Shelving and benches |
Southwest bund wall of portal compound” |
“352. It is clear from (F9-1) of the EA that Citigold is authorized to enter into the agreements MJL-46 and MJL-59.
(a) clearly identify the parties;
(b) are binding and enforceable; and
(c) identify with certainty the relevant infrastructure or services proposed to be retained by the underlying landholder.
(a) the return of the executed Agreement to Offer to DNRM;
(b) the payment of the purchase price of the land;
(c) the return of the executed Form 1 Transfer; and
(d) the provision of written advice to DNRM on how the Estate intends to address native title.
(a) whether or not the parties can enter into an agreement regarding the retention of the infrastructure, or
(b) whether or not the infrastructure the subject of the agreements MJL-49 and MJL-59 can be excluded from the calculation of FA.
“MR DILLON: Secondly, your Honour was taken to the Plan of Operations, to page 515 using the top-right pagination, which showed the different leases. Now, just to be clear about this, if your Honour looks at that page, your Honour can get quite a good gauge of what’s on State land because ML1407 is unallocated State land, ML1408 is unallocated State land – and your Honour can cross-reference this to exhibit 17 which shows it on a map – and ML1409 is on unallocated State land. So certainly, visually, your Honour can see that it looks like almost all of this infrastructure is on unallocated State land. Secondly - - -
HIS HONOUR: Except for that which isn’t.
MR DILLON: Well, except for a portion which looks like it’s on ML1431 – yes, your Honour. But that may assist your Honour in terms of working out an approach. Secondly, to the extent – some submissions were made about the – the alleged failures of Mr Anderson. Of course, the appellant hasn’t identified precisely either, so we’re both in the same boat. It’s an unfortunate situation but certainly, the same submission could be made the other way; that if the appellant’s failed to identify which parts and calculate which bits are on and off unallocated State land, your Honour really just has to do the best he can. I mean, you certainly – that’s unfortunate but your Honour ought not just simply exclude things wholesale on the off chance that it might not be on unallocated State land.
HIS HONOUR: And I’m sure Ms McIntyre could say “and you shouldn’t just include things on a possibility that they are”.
MR DILLON: Well, that’s so, and your Honour will need to do the best you can…”
Financial Standing of Citigold
“299. The Respondent suggested that the financial returns of the company were relevant for two reasons, the first of which is whether or not some of the infrastructure can transfer under the land owner agreements, and, the second is whether the gravel and tourist businesses are ever likely to materialise.
301 The financial standing of Citigold is not a matter to which the Court ought have regard because:
(a) under EM1010, it does not form part of the criteria; and
(b) under Exhibit 69, the Respondent has not lead any evidence in respect of same.
(a) the financial assurance hinges on the Rehabilitation Program as a point in time reference, not on the finances of the company;
(b) to the extent that the annual financial returns are able to be used, they are only useful in terms of the geological reporting and life of mine;
(c) securing development funding for the completion of the expansion of the Citigold Project is ongoing;
(d) Citigold has just come out of exploration phase and is looking to expand and develop their sites;
(e) the project is presently on care and maintenance;
(f) the value of the company is secured within the 11 million ounce gold reserves subject of the various mining tenements over which the environmental authority is held;
(g) Citigold is listed by the ASX as an exploration company that is not in production mode. As an explorer, Mr Lynch states that you would expect to generate no profit. The basis for this response is as follows:
And why is that? Because the nature of what you are doing - you’re trying to discover something - essentially like RND. It’s called exploration and development, it’s like RND. You’re waiting to find something, discover something. And then the later stages when you then - that then has to be commercialised. So it’s just a normal part of an exploration company. You raise money, spend money. Raise money, spend money. [TR 9-48]
(h) To the extent that the financial standing of Citigold is relevant in any event, Mr Lynch expanded upon the position of a mining explorer in the following terms:
You spend, each year as an explorer, depending on the amount of money they raise, will often spend more than what it’s raised during the year or it raises the real expense over time. You don’t have a recurring income. You have to keep raising capital. [TR 9-48 at 25].
…when we go into full production we start to earn a profit. We have own recurring income and then you generate a profit and then you continue to grow the business. So that is the big transition between an explorer and a producer, is that you put in projection and have a recurring income then your day to day is about keeping costs down and keeping revenue up. [TR9-48 at 35].
(i) The value of the company is associated with the mining leases, Mr Lynch’s evidence is that:
The mining leases give you the right to the minerals so they have inherently greater value because you’ve got a mining lease usually for a plan specific purpose now or in the future, but it gives you the right to recover the minerals and they’re yours, but you’ve got to pay the government a royalty. [9-51 at 20].
“198. Evidence as to the financial position of Citigold and past plans of operation is relevant, because it goes to the issue of whether the agreements are genuine or alternatively whether the proposed uses will realistically ever eventuate.
(1) Mr Lynch and Mr Towsey both accepted that the 2015 Financial Report (Ex 35) was accurate. It is a consolidated statement of the finances of Citigold and its subsidiaries.
(2) Citigold has considerable accumulated losses. For the financial year ending 30 June 2015 it suffered an extraordinary impairment of assets of $96,000,000 and had a net operating loss of $7,223,063.
(3) Mr Lynch gave evidence that the Appellant has generally operated at a loss since it was incorporated in 1993, and that the company went into receivership for a period of time in 1998. He said that “the mine’s never been fully and properly funded. It’s always been part funded” and that it needed a capital injection to get that “critical mass” and become a “self-sustaining, ongoing business.”
(4) Citigold needs major funding to go into full scale commercial gold production, in the order of at least 40 to 50 million, although it is trying to secure in the vicinity of 72 to 85 million.
(5) The only freehold land that Citigold and its subsidiaries own has a value of $151,048. This necessarily includes the land which is the subject of the most recent landowner statement (which is owned by a subsidiary of Citigold).
(6) The value of the physical plant and equipment held by Citigold (as distinct from the exploration, evaluation and development expenditure and costs) taking into account depreciation is $2,863,459.
(7) That figure presumably includes the Black Jack processing plant, which comprises the security to a secured loan of $7,174,445.
(8) The only provision presently made for rehabilitation amounts in the 2015 Annual Report is by way of a notation that Citigold has a contingent liability of up to $8.5 million.
(9) At the time the 2015 Annual Report was prepared, Citigold had current assets of $1,731,508 and current liabilities of $15,452,269, so that the ability of the consolidated entity to meet its expenditure commitments was dependent upon production and continued capital raising.
(10) The Auditors Report included with the 2015 Annual Report notes that the cash flow forecast for the company is dependent upon the generation of sufficient cash flows to be raised from short term funding, capital raising and/or other initiatives to fund its planned activities and be able to meet its liabilities and obligations as and when they fall due. This prompted the ASX to write to Citigold requesting information about whether Citigold had sufficient cash to continue funding its operations.
(11) Mr Lynch accepted that Citigold wasn’t conducting any active mining operations at present, that the company did not have big cash reserves, and that the only sources of liquidity for the company was through equity raising by share issues, loans and the completion of the major funding transaction.
(12) More recently, Citigold has failed to pay the annual fee of $137,060 for its environmental authority, with the consequence that the Respondent has advised that it may take action to suspend the environmental authority.
Precautionary Principle
“In the circumstances before me where there is no statutory definition of the precautionary principle and no express obligation to apply any such principle, I take the view that the adoption of the decision-maker of such a principle was likely to result in an additional consideration beyond those authorised by the Regulation and could thus amount to an irrelevant consideration. I find no basis for the suggestion that there was a procedural error because of any failure to apply the precautionary principle.”
“(1) Mining rehabilitation literature emphasizes the importance of the principle in circumstances where leading practice in the area is evolving.
(2) Application of the principle is consistent with the objects of the EP Act embodied in sections 3 & 4.
(3) In any event, the scope of the considerations in the present proceeding involves a consideration of the risk of damage to the environment and the level of scientific certainty concerning the characterization of the risks, and the measures which should be taken to prevent harm.
(4) Accordingly, whether or not the precautionary principle applies, from a practical perspective the relevant considerations are substantially the same.”
“And I suggest that the approach that you’ve really taken is you’ve just guestimated some figures, some areas and then applied the calculator rates for items D72 and D92 to D101?---We’ve allowed reasonable estimates. For example, in D76, we actually have no evidence of hydrocarbon contamination in the soil. So under the precautionary principle, I’ve allowed an amount in there in case we later found some or some had occurred between the time of the plan of operations and when the site was up for remediation.”
Objections
Calculating the Financial Assurance Payable by Citigold
“40. The FA amounts in this JER do not include any allowance for a contingency amount as we believe that this is a decision for the Court.”
“Section 15 aa requires a court to prefer one construction to another. Such a requirement can only have meaning where two constructions are otherwise open. The section is not a warrant for redrafting legislation nearer to an assumed desire of the legislature. It is not for the courts to legislate; a meaning, though illuminated by the statutory injunction to promote the purpose or object underlying the EP Act, must be found in the words of Parliament. As Bowen CJ said in Re News Corporation Ltd (1987) 70 ALR 419 at 428:
A[n]… important rule in this context is that embodied in s 15aa of the EP Acts Interpretation Act 1901 requiring the Court to lean towards the construction that will promote the purpose of the EP Act. In the end the task of the Court is to ascertain and to enforce the EP Actual commands of the legislature: Scott v Cawsey (1907) 5 CLR 132 at 155. This will best be achieved by studying the words used and the context and the purpose or object underlying the EP Act.
To similar effect, Fitzgerald J said in FCT v Trustees of Lisa Marie Walsh Trust (1983) 48 ALR 253 at 278: “… even if the extrinsic material does reveal the legislative purpose, there will continue to be boundaries beyond which the words used will not stretch even where it is known that they were intended to do so.” See also Repatriation Commission v Kohn (1989) 87 ALR 511 at 523-4, citing Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 304 ; 35 ALR 151. I do not think I can support the tribunal's approach in this matter. It did not “stretch” the language, to use the metaphor of Fitzgerald J; it found the language inelastic, and threw it away upon the footing that a decision contrary to it would be in keeping with what the tribunal thought to be the legislative purpose.”
REF | DESCRIPTION | DETERMINATION |
C1 | Disconnect and terminate all services (water, electricity, gas etc at point of attachment to site) | $0 As per WPT1 |
C2 | Disconnect and terminate services at remote areas (pump stations, remote workshops, sewage treatment plant etc) | $10,000 Some rehabilitation on USL. Unable to be more specific. |
C3 | Removal of low/medium voltage powerlines, including disconnection, rolling up the wires and removing the poles. | $3,750 Same reasoning as C2 |
C4 | Demolish and removal small buildings (camps, administration buildings, accommodation, bath house etc) | $20,000 Removal of Buildings on USL |
C5 | Demolish and remove industrial buildings (workshops, tyre change and servicing area etc – not CHPP) | $0 Expert agreed amount |
C6 | Remove concrete pads and footings (<0.3m thickness) and dumping in voicd | $4,000 Same basis as C4 |
C7 | Remove fence (cyclone / wire fence) | $0 Expert agreed amount |
C8 | Removal and off-site treatment of hydrocarbon contaminated water from worskshops, bunded areas and sumps. | $700 Expert agreed amount |
C9 | Undertake Phase 1 contamination assessment – assumes potential contamination is localized. If there are multiple work areas on site, additional studies should be included. | $15,000 Expert agreed amount |
C10 | Onsite remediation of hydrocarbon contaminated soils manual land farming | $0 Expert agreed amount |
C11 | Remove material (carbonaceous / metalliferous spillage or otherwise) from footprint of the process facility (leach pads) / stockpile area (ROM product) / roads and dump in a void on-site (haul distance <1km) | $0 Expert agreed amount |
C12 | Bulk earthworks / structural works | $0 Expert agreed amount |
C13 | Trim, rock rake & deep rip (includes levelling / landscaping and rip in 1 direction) | $2,400 Same as C2 |
C14 | Source, cart and spread topsoil (@0.2m) (<1km) | $9,000 Same as C2 |
C15 | Direct seeding / fertilizer (pasture grass species) | $3,000 Same as C2 |
C16 | Seal portals / adits (width >2m) – backfill the adit for at least 50m against a concrete bulk head with drainage slots. If concrete bulk head not required, reduce rate by 25%. | $0 Infrastructure agreement |
C17 | Seal and rehabilitation ventilation fan shafts | $300,000 Expert agreed amount |
C18 | Maintenance and monitoring of sealed adits / portals and shafts (5 years) | $50,000 Infrastructure agreement
|
C19 | Bore holes – cap and seal open bore holes ~ 0.05 – 0.2m, backfill with cuttings | $0 Expert agreed amount |
C20 | Demolition and removal of vent fans, electrical substation and winch. | $50,000 Expert agreed amount |
TOTAL FOR CENTRAL | $467,850 | |
REF | DESCRIPTION | DETERMINATION |
B1 | Disconnect and terminate all services (Water, electricity, gas etc at point of attachment to site) | $0 As per WPT1 |
B2 | Removal of low / medium voltage powerlines including disconnection, rolling up the wires and removing the poles – does not include the removal of substations. | $6,000 As per WPT1 |
B3 | Demolish and remove small buildings (camps, administration buildings, accommodation, bath house etc.) | $0 Infrastructure agreement. No direct evidence on USL. |
B4 | Demolish and remove industrial buildings (workshops, tyre change and servicing area etc – not CHPP) | $211,200 On Blackjack USL. |
B5 | Demolish and remove processing equipment (i.e., washery, crushers, mills, furnaces, agglomeration, electrowinning, floatation, sizing stations, rotary breakers etc) – include the area of each floor of the structure. | $530,000 On assumption of 80% on Blackjack USL. |
B6 | Remove small underground pipe - ~ 300mm pipes | $0 Infrastructure agreement. No direct evidence on USL. |
B7 | Remove concrete pads & footings (<0.3 m thickness and dumping in void) | $0 Infrastructure agreement. No direct evidence on USL. |
B8 | Remove concrete pads & footings (>0.3 m thickness) and dumping in void | $130,000 Same as B5 |
B9 | Remove fence (cyclone / wire fence) | $0 Expert agreed amount |
B10 | Remove and off-site treatment of hydrocarbon contaminated water from workshops, bunded areas and sumps. | $700 Expert agreed amount. |
B11 | Undertake Phase 1 contamination assessment – assumes potential contamination is localized. If there are multiple work areas on site, additional studies should be included. | $15,000 Expert agreed amount. |
B12 | Onsite remediation of hydrocarbon contaminated soils – manual land farming | $2,750 Expert Agreed Amount |
B13 | Remove material (carbonaceous / metalliferous spillage or otherwise) from footprint of the process facility (leach pads) / stockpile area (ROM product) / roads and dump in a void on-site (haul distance | $78,000 As per TRA |
B14 | Major bulk pushing to achieve grades, nominated in the approval / permit <50m push length. | $26,800 Same as B5 |
B15 | Fill dams, voids etc – source local material, cart and spread to cap or backfill, cap thickness determined by approval / permit (haul distance <1km) | $80,000 Most parts of runoff control to remain for beneficial use. Balance was $100,000 as part of TSF with 20% discount for medium risk. |
B16 | Trim, rock rake & deep rip (includes levelling / landscaping and rip in 1 direction) | $0 Infrastructure agreement
|
B17 | Deep rip hard stand / lay down areas (including ripping in 2 directions) | $2,880 As per TRA |
B18 | Source, cart and spread topsoil (@0.2m)(<1km) | $13,600 As per WPT1 |
B19 | Direct seeding / fertilizer (pasture grass species) | $2,480 As per WPT1 |
B20 | Construct standard stock fence around rehabilitated areas | $0 Expert agreed amount. |
B21 | Reshaping, capping / sealing of high risk material presenting environmental difficulties (ARD / AMD / PAF, carbonaceous, saline material etc) | $1,904,000 As per TRA for TSF with 20% reduction for medium risk |
B22 | Materials for reshaping, capping / sealing of high risk material presenting environmental difficulties (ARD / AMD / PAF, carbonaceous, saline material etc) | $0 As per TRA. |
B23 | Trim, rock rake & deep rip (includes levelling / landscaping and rip in 1 direction) | $13,440 As per TRA for TSF with 20% reduction for medium risk |
B24 | Source, cart and spread topsoil (@0.2m) haul distance <1km | $95,200 As per TRA for TSF with 20% reduction for medium risk |
B25 | Direct seeding / fertilizer (pasture grass species) | $42,700 As per WPT1 |
B26 | Construct standard stock fence around rehabilitated areas | $22,000 As per WPT1 |
B27 | Maintenance of established rehabilitated areas. | $0 As per TRA. |
B28 | Reshaping, capping / sealing of high risk material presenting environmental difficulties (ARD / AMD . PAF, carbonaceous, saline material etc) | $0 Low risk stable material |
B29 | Materials for reshaping, capping / sealing of low risk material presenting environmental difficulties (ARD / AMD / PAF, carbonaceous, saline material etc) | $0 Low risk stable material requiring topsoil. Not infrastructure |
B30 | Source, cart and spread topsoil (@0.2m) haul distance <1km | $62,500 Low risk stable material requiring topsoil. Not infrastructure |
B31 | Trim, rock rake & deep (includes levelling / landscaping and rip in 1 direction) | $4,416 Oldest dumps already seeded and planted – allow 50% of TRA and WPT2 |
B32 | Direct seeding / fertilizer (pasture grass species) | $5,704 Oldest dumps already seeded and planted – allow 50% of TRA and WPT2 |
B33 | Construct standard stock fence around rehabilitated areas. | $0 Expert agreed amount. |
B34 | Clean water dams / sediment control structures to be retained after closure – make safe and minor earthworks. | $0 Expert agreed amount. |
B35 | Removal and disposal of plastic liner (i.e. dam, leach pad etc) | $2,500 Expert agreed amount |
B36 | Remove 2 x concrete tanks and 1 x plastic tank. | $0 Expert agreed amount |
B37 | Undertake Phase 1 contamination assessment – assumes potential contamination is localized. If there are multiple work areas on site, additional studies should be included. | $15,000 As per TRA |
B38 | Remove sediments from the floor of the dam to enable it to be converted into clean water structure (haul distance >1km but <2km). | $19,500 Expert agreed amount |
B39 | General reshaping and pushing / trimming to achieve final landform design | $7,800 Expert agreed amount |
B40 | Source, cart and spread topsoil (@0.2m) haul distance <1km | $0 Expert agreed amount |
B41 | Direct seeding / fertiliser (pasture grass species) | $2,480 Expert agreed amount |
B42 | Highwall treatment – trench and safety berm construction | $200,000 Safety berm except for ramps. Considered approach to ensure made safe. |
B43
| Purchase and erect warning signs | $6,250 Expert agreed amount |
B44 | Security fence around steep section of high wall. | $28,160 As per WPT1 |
TOTAL FOR BLACKJACK | $3,531,060 | |
REF | DESCRIPTION | DETERMINATION |
I1 | Disconnect and terminate all services (Water, electricity, gas etc at point of attachment to site) | $0 As per WPT1 |
I2 | Removal of low / medium voltage powerlines including disconnection, rolling up the wires and removing the polies – does not include the removal of substations | $0 As per WPT1 |
I3 | Demolish and remove small buildings (camps, administration buildings, accommodation, bath house etc) | $0 Infrastructure agreement. |
I4 | Demolish and remove industrial buildings (workshops, tyre change and servicing area etc – not CHPP) | $0 Infrastructure agreement |
I5 | Remove small underground pipe – 300mm pipes | $0 Infrastructure agreement. |
I6 | Remove concrete pads and footings (<0.3 m thickness) and dumping in void. | $0 Infrastructure agreement. |
I8 | Remove fence (cyclone / wire fence) | $0 Agreed amount |
I9 | Unsealed roads / vehicle park-up areas – Minor earthworks, final trim and deep rip (pasture grass) | $0 Infrastructure agreement |
I10 | Undertake Phase 1 contamination assessment – assumes potential contamination is localized. If there are multiple work areas on site, additional studies should be included. | $15,000 Expert agreed amount |
111 | Removal and off site treatment of hydrocarbon contaminated water from workshops, bunded areas and sumps | $700 Expert agreed amount. |
I12 | Remove material (carbonaceous / metalliferous spillage or otherwise from footprint of the process facility (leach pads) / stockpile area (ROM product) / roads and dump in a void on-site (haul distance (<1km) | $3,900 Expert agreed amount |
I13 | Onsite remediation of hydrocarbon contaminated soils (<50m3) – manual land farming. | $2,750 Expert agreed amount |
I14 | Fill dams, voids, etc – source local material, cart and spread to cap or backfill, cap thickness determined by approval / permit (haul distance <1km) | $0 As per WPT1 |
I15 | Trim, rock rake & deep rip (includes levelling / landscaping and rip in 1 direction) | $0 As per WPT1 |
I16 | Source, cart and spread topsoil (@0.2m) (<1km) | $0 Expert agreed amount |
I17 | Direct seeding / fertilizer (pasture grass species) | $0 As per WPT1 |
I18 | Seal portals / adits (width >2m) – backfill the adit for at least 50m against a concrete bulk head with drainage slots. If concrete bulk head not required, reduce rate by 25%. | $250,000 Expert agreed amount |
I20 | Seal and rehabilitate ventilation fan shafts | $150,000 Expert agreed amount |
I21 | Maintenance and monitoring of sealed adits / portals and shafts (5 years) | $50,000 Expert agreed amount |
I22 | Bore holes – cap and seal open bore holes ~ 0.05 – 0.2m, backfill with cuttings | $0 Expert agreed amount |
I23 | Demolition and removal of vent fans, electrical substation and winch. | $25,000 Expert agreed amount |
124 | Reshaping, capping / sealing of high risk material presenting environmental difficulties (ARD / AMD / PAF, carbonaceous, saline material etc) | $0 Low risk stable material |
I25 | Materials for reshaping, capping / sealing of low risk material presenting environmental difficulties (ARD / AMD / PAF, carbonaceous, saline material etc) | $0 Expert agreed amount. |
I26 | Source, cart and spread topsoil (@0.2m) haul distance <1km | $32,773 Low risk stable material requiring topsoil |
I27 | Trim, rock rake & deep (includes levelling / landscaping and rip in 1 direction) | $11,232 Required for rehabilitation as per TRA. Not infrastructure. |
I28 | Direct seeding / fertilizer (pasture grass species) | $14,508 Seeding and planting required. Not infrastructure. |
I29 | Construct standard stock fence around rehabilitated areas. | $0 Expert agreed amount. |
I30 | Clean water dams / sediment control structures to be retained after closure – make safe and minor earthworks. | $0 Expert agreed amount. |
I31 | Highwall treatment – trench and safety berm construction | $63,000 Expert agreed amount |
I32 | Purchase and erect warning signs | $1,750 Expert agreed amount |
I33 | Security fence around steep section of high wall | $38,500 Expert agreed amount. |
I34 | Bore holes – cap and seal open bore holes ~ 0.05 – 0.2 m, backfill with cuttings. | $10,500 Citigold amount |
TOTAL FOR IMPERIAL | $669,613 | |
TOTALS |
| |
CENTRAL | $467,850 | |
BLACKJACK | $3,531,060 | |
IMPERIAL | $669,613 | |
TOTAL SITES | $4,668,523 | |
Project Management 10% | $466,852 | |
Maintenance and Monitoring | $233,426 | |
Contingency | $0 | |
Total Financial Assurance | $5,368,801 | |
Determination
ORDERS:
PA SMITH
MEMBER OF THE LAND COURT
Appendix A – Glossary
Term | Definition | Exhibit |
Acid | A measure of hydrogen ion (H+) concentration; generally expressed as pH. Acid is not equivalent to acidity (see definition below). | 24 |
Acid base account/acid base accounting (ABA) | An Acid Base Account (ABA) evaluates the balance between acid generation processes (oxidation of sulphide minerals) and acid neutralising processes. It can involve determination of the maximum potential acidity (APP) and the inherent acid neutralising capacity (ANC), both defined below. A series of chemical analyses and calculated values (Chapter 14) used to estimate the magnitude of the acid generation potential (AP, Chapter 12) and acid neutralization potential (NP, Chapter 13) of a sample and its present and potential future net drainage pH. ABA includes the most common static tests used in the prediction of acid rock drainage. Uses of ABA data include: 1) an initial coarse estimation of the present and potential future net drainage pH; 2) part of the information used in a more refined, site specific prediction of the present and potential future net drainage pH; and 3) operational characterization of the present and potential future net drainage pH of excavated material and exposed surfaces, based on refined, site | 24
21 |
| specific prediction in 2 above. Kinetic tests, mineral identification and detailed elemental analysis are required for more refined, site-specific prediction. Accurate prediction of the potential future net drainage pH from the ABA data requires an understanding of the analytical procedures, the future physical and geochemical conditions, external inputs and the identity, location and reactivity of the contributing minerals. The analytical procedures, the number of tests and the interpretation of the analytical data should all be clearly identified since there is considerable variation in sample preparation. See also acid generation, neutralization potential and static NP procedures. |
|
Term | Definition | Exhibit |
Acid drainage | Drainage characterised by low pH, and typically elevated toxic element concentrations, high sulfate concentrations and high salinity. | 24 |
Acid(ic) | In geology, a chemical classification of igneous rocks. Containing more than 66% silica. In chemistry, having a pH <7. | 54 |
Acidity | A measure of hydrogen ion (H+) concentration and mineral (latent) acidity; generally expressed as mg/L CaCO3 equivalent. Measured by titration in a laboratory or estimated from pH and water quality data. | 24 |
Acidity load | The product of acidity and flow rate, generally expressed as mass CaCO3 equivalent per unit time. | 24 |
Acidity load balance | The acidity load balance for a mine site takes into account water volumes and flow rates as well as acidity (see definition above), and incorporates all mine facilities that are potential sources of AMD, for example, waste rock piles, ore stockpiles, tailings storage facilities, pits, underground workings, heap leach piles and mine construction materials. | 24 |
Aeromagnetics | Airborne geophysical survey measuring variations in the Earth’s magnetic field | 54 |
Ag | Silver | 54 |
Alkalinity | A measure of the capacity of a solution to neutralise an acid. | 24 |
AMD | Can mean either Acid and Metalliferous Drainage or Acid Mine Drainage (also known as Acid Rock Drainage) | 21 & 24 |
Acid Rock Drainage (ARD) | Acidic pH drainage derived from materials with an insufficient capacity to neutralize the acidic products of sulphide and elemental sulphur oxidation and the dissolution products of acidic minerals and morphous materials. ARD is produced when the NP is no longer capable of maintaining neutral pH conditions in a measurable volume of drainage. In the context of mining, may be referred to as acid mine drainage (AMD). | 21 |
Assay | Chemical analysis. Strictly refers to analysis of precious metals by the fire assay method with gravimetric finish. Commonly used to mean any chemical analysis | 54 |
Term | Definition | Exhibit |
Au | Gold | 54 |
base metal | Generally a metal inferior in value to the precious metals, mainly copper, lead, zinc, nickel, tin and aluminium. | 54 |
batholith | A large mass of consolidated intrusive igneous material (usually of granitic composition) (see also pluton). | 54 |
Bed-rock | Solid rock underlying soil, alluvium etc. | 54 |
Blending | In the context of sulphidic drainage chemistry, mitigation blending refers to the code position of potentially net acid (PAG) and net neutral mine wastes (Non-PAG). The objective in blending is generally to create a composite material in which the acid produced by the PAG waste material is neutralized by Non-PAG materials, with a consequent precipitation of the majority of the released metals as secondary minerals. | 21 |
Block model | A three-dimensional model of the distribution of ore and waste materials with different geochemical properties (metalliferous mines). Also see ‘grid/layer model’. | 24 |
breakeven | In ore reserve estimation, the gold grade at which the mining cost equals the value of the extractable gold. At breakeven grades, the operation makes neither a profit nor a loss. | 54 |
| Breakeven can be calculated at various cost levels, such as an operating breakeven (the grade required to continue operations) or total cost breakeven (which takes into account overheads such as depreciation, mineralized_, cost of capital, off-site overheads, interest, tax etc). |
|
decline | Usually refers to a downward sloping underground roadway. | 54 |
density | Mass divided by volume. Measured here in tonnes per cubic metre. | 54 |
diamond drilling | Method of obtaining a cylindrical core of rock by drilling with a diamond impregnated bit. | 54 |
drainage chemistry | The concentrations of dissolved components in drainage, including element concentrations, chemical species and other aqueous chemical parameters. | 21 |
fault | A fracture in rocks along which rocks on one side have been moved relative to the rocks on the other. | 54 |
Term | Definition | Exhibit |
Fracture | A break in the rock. | 54 |
g/t | grams per tonne (grams/tonne) | 54 |
Galena | lead sulphide mineral, an ore of lead | 54 |
Gangue | Waste minerals associated with ore. | 54 |
Geophysical | The exploration of an area in which physical properties (e.g resistivity, conductivity, magnetic properties) unique to the rocks in the area are quantitatively measured by one or more methods. | 54 |
Geostatistics | Mineral resource estimation method. A computer based method wherein particular relationships between sample points are established and employed to project the influence of the sample points. Based on the application of statistics to the variation in grade of ore bodies. | 54 |
granite, granitic | Coarse grained igneous rock composed of quartz and feldspar with varying amounts of ferromagnesium minerals such as biotite or hornblende, with or without muscovite. Adjective is ‘granitic’. | 54 |
Granitoid | Field term for body of rock of granitic composition. | 54 |
Heap Leach | An extraction process in which stockpiled ore is leached to remove target metals. Leaching solutions, generally weak acids or alkaline cyanide, are percolated through heaps of ore. Leachate is collected and metals contained in the leachate are extracted chemically or electrochemically. Typically, the particle size of the ore to be leached is reduced to increase surface exposure of metal containing minerals. Despite the reduced particle size, after leaching ceases, the heap typically has many properties in common with a waste rock dump. | 21 |
in situ | Term used to describe rocks and minerals found in their original position of formation. | 54 |
joint | Fracture in rock along which no appreciable movement has occurred. | 54 |
Term | Definition | Exhibit |
JORC Code | The “Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves, The JORC Code 2004 Edition”, a report of the joint committee of the Australasian Institute of Mining and Metallurgy, Australia Institute of Geoscientists and Australia Mining Industry Council. It is a comprehensive integrated exposition on geological resources and ore reserves, and adherence to the Code is a requirement under the Australia Stock Exchange Listing Rules | 54 |
km | Kilometre | 54 |
Kinetic Test | A procedure used to measure the magnitude and/or effects of dynamic processes, including rates of reaction, material alteration and drainage chemistry and loadings that result from weathering. Unlike static tests, kinetic tests measure the performance of a sample over a prolonged period of time. | 24 |
| Procedure used to measure the magnitude and/or effects of dynamic processes, including reaction rates (such as sulfide oxidation and acid generation), material alteration and drainage chemistry and loadings that result from weathering. Unlike static tests, kinetic tests measure the minerali of a sample over time www.inap.com.au | 21 |
MEND | Mine Environment Neutral Drainage http://mend-nedem.org/default/ | 24 |
Metalliferous drainage | A form of Acid and Metalliferous Drainage (AMD), mineralized_n by near-neutral pH, elevated heavy metal concentrations, high sulfate salinity. | 24 |
metre-gram(s) or metre-grams per tonne | Is the assay grade mineralize out to a minimum width of one metre width by multiplying the true width by the grade to produce metal accumulations over a metre of rock (ie. Metre-grams per tonne Au or metre grams of gold per tonne of rock) and is used where the drill intersections true width is less than one metre. The material included in the one metre interval outside the assayed section is assumed to be zero grade thereby diluting the original assay. | 54 |
mineralisation | The introduction of valuable minerals into a rock body | 54 |
Term | Definition | Exhibit |
mm | millimetre | 54 |
Neutral Mine Drainage | Mine drainage mineralized_n by near-neutral pH, elevated concentrations of ionic species and potentially toxic element concentrations. Neutral mine drainage may be the product of _ineralized acid drainage (ie mineralized AMD/ARD), or dissolution of readily soluble minerals in mine wastes. See metalliferous drainage. |
|
Open cut | Synonymous with open pit | 54 |
open pit | Mine excavation or quarry, open to the surface | 54 |
ore | Rock, sediments, or non-lithified materials that contain economically recoverable levels of coal, metals or minerals. See cut-off grade, low grade ore stockpile, tailings and waste rock. | 21 |
| Rock or mineral(s) that can be extracted at a profit. Often applied (incorrectly) to mineralized_ng in general. | 54 |
Ore Reserve | An ‘Ore Reserve’ is the economically mineable part of a Measured or Indicated Mineral Resource. It includes diluting materials and allowances for losses that may occur when the material Is mined. Appropriate assessments, which may include feasibility studies, have been carried out, and include consideration of and modification by realistically assumed mining, metallurgical, economic, marketing, legal, environment, social and governmental factors. These assessments demonstrate at the time of reporting that extracting could reasonable be justified. Ore Reserves are sub-divided in order of increasing confidence into Probable Ore Reserves and Proved Ore Reserves | 54 |
outcrop | a body of rock exposed at the ground surface | 54 |
oxidised | near surface or after-mining decomposition of rocks, minerals or metals by exposure to the atmosphere and groundwater. | 54 |
| See also oxidation and weathering. |
|
Term | Definition | Exhibit |
Oxidation |
|
|
Petrography | The branch of geology dealing with the description and systematic classification of rocks, especially by means of microscopic examination of thin sections. More limited in scope than petrology. | 21 |
Petrology | The branch of geology dealing with the origin, occurrence, history and structure of rocks as determined from petrography and geochemistry. See also lithology. | 21 |
pH | Literally, “power of Hydrogen”. A measure of the concentration of hydrogen ions in solution that determines acidity or alkalinity. The pH ranges from 0 to 14, with 7 being neutral. Acids have pH less than 7 and alkalis greater than 7. | 54 |
portal | Surface entrance to a tunnel or drive. | 54 |
ppm | Part per million (equals to grams per tonne) | 54 |
Probable Ore Reserve | A ‘Probable Ore Reserve’ is the economically mineable part of an Indicated, and in some circumstances Measured, Mineral Resource. It includes diluting materials and allowances for losses that may occur when the material is mined. Appropriate assessments, which may include feasibility studies, have been carried out, and include consideration of and modification by realistically assumed mining, metallurgical, economic, marketing, legal, environmental, social and governmental factors. These assessments demonstrate at the time if reporting that extraction could reasonably be justified. A Probable Ore Reserve has a lower level of confidence than a Proved Ore Reserve. | 54 |
Prospect | An area that warrants detailed exploration | 54 |
Term | Definition | Exhibit |
Proved Ore Reserve | A ‘Proved Ore Reserve’ is the economically minable part of a Measured Mineral Resource. It includes diluting materials and allowances for losses that may occur when the material is mined. Appropriate assessments, which may include feasibility studies, have been carried out, and include consideration of and modification by realistically assumed mining, metallurgical, economic, marketing, legal, environmental, social and governmental factors. These assessments demonstrate at the time of reporting that extraction could reasonably be justified. | 54 |
pyrite | An iron sulphide mineral, often associated with economic mineralized_ng. Occasionally used as an ore of mineral. | 54 |
quartz | Very common minerals composed of silica Si01. Amethyst is a variety of the well known amethystine colour. Aventurine is a quartz spangled with scales of mica, haematite, or other minerals. False topaz or citrine is a yellow quartz Rock crystal is a clear variety, Rose quartz is a pink variety, and cairngorm is a brownish variety. Tiger-eye is crocidolite (an asbestos-like mineral) replaced by silica and iron oxide. Quartz is the name of the mineral prefixed to the names of many rocks that contain it, such as quartz porphyry, quartz diorite. | 54 |
Recovered grades | Means the eventual recovery after mining dilution and processing losses measured against plant feed tonnes. | 54 |
recovery (drilling) | Proportion of core or cuttings actually recovered from a drill hole, compared to the maximum theoretical quantity. | 54 |
reef | In mining, a gold-bearing quartz vein. | 54 |
reserves (ore) | See proved or Probable Ore Reserves. It is recommended that the reader study the “Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves, the JORC Code 2004 Edition”, a report of the joint committee of the Australasian Institute of Mining and Metallurgy, Australia Institute of Geoscientists and Australia Mining Industry Council for a comprehensive integrated exposition on geological resources and ore reserves. The various resources categories are classified according to the level of the geological information, and thus the confidence, underlying the estimate. | 54 |
Term | Definition | Exhibit |
| The Inferred Resources cannot become a Reserve. The Proved and Probable Reserves are derived respectively from the Measured and Indicated Resource after the application of sufficient technical, financial, marketing, economic, legislative, legal and environmental factors to be confident that their mining and processing would be economically viable. However, it should be appreciated that the Code does not define a level of profitability. |
|
Resource | See Measured, Indicated or Inferred Mineral Resource. Mineralisation to which conceptual tonnage and grade figures are assigned, but for which exploration data are inadequate to estimate ore reserves | 54 |
Saline drainage | A product of Acid and Metalliferous Drainage (AMD), mineralized in by high sulfate salinity but near-neutral pH and low concentrations of heavy metals. | 24 |
Sedimentary rocks | Rocks formed of particles deposited from suspension in water, wind or ice. | 54 |
shaft | A vertical or inclined passage from the surface by which a mine is entered and through which ore or ventilation air is transported | 54 |
shear | Zone in which rocks have been deformed by lateral movement along innumerable parallel planes. | 54 |
Soil Cover | One or more layers of soil-like materials intended to limit the percolation of rainfall or the ingress of oxygen, or both, into AMD-generating materials. | 24 |
Sphalerite | Zinc sulphide mineral | 54 |
Static Test | A procedure for characterizing the physical, chemical or biological status of a sample at one point in time. Includes measurements of the mineral and chemical composition and the analyses required in Acid Base Accounting. | 24 |
| Procedure for _ineralized_ng the physical or chemical status of a geological sample at one point in time. Static tests include measurements of mineral and chemical composition and the analyses required for Acid Base Accounts. | 21 |
Term | Definition | Exhibit |
stope | Mine excavation from which ore is being or has been extracted. | 54 |
strike | The azimuth of a surface, bed or layer of rocks in the horizontal plane | 54 |
sulphides | A mineral, compound or ion containing the S22- or S2- functional group in which mineral is in the -1 or -2 oxidation state. Sulphide minerals also contain metals (e.g., pyrite, FeS2, galena, PbS or or chalcopyrite, CuFeS2) or metalloids (e.g. arsenopyrite, FeAsS). Minerals comprising a chemical combination of mineral and metals. | 21
54 |
Sulphidic geologic materials | Geologic materials containing sulphide minerals and/or the mineral products of weathering, processing or hydrothermal alteration. Drainage chemistry depends on the reactivity of the geologic materials as a whole, not just the mineral-containing minerals. | 21 |
t/m3 | tonnes per cubic metre | 54 |
Tailings | The ground rock waste product from a mill or process plant, the materials remaining after the economically valuable elements are removed from the ore. To remove the valuable elements, blasted rock typically goes through several steps of crushing and extraction or washing. The tailings usually leave the mill as a slurry of sand sized and/or silt sized particles in water. Tailings are commonly stored in a surface impoundment but can also be placed sub-aqueously in natural water bodies or backfilled into underground workings. | 21 |
| Finely ground materials from which the desired mineral values have been largely extracted. Approximately 98 per cent of the material mined for processing is discharged as tailings. At coal mines, tailings represent the coarse and fine rejects form the coal washery (MMSD, 2002) | 24 |
| Material rejected from a treatment plant after the recoverable valuable minerals have been extracted. | 54 |
Term | Definition | Exhibit |
Tailings dam | Facility designed for the storage of saturated tailings material and supernatant water provided during ore processing. Tailings dams, unlike tailings storage facilities, are designed as competent water-holding structures. | 24 |
Tailings storage facility (TSF) | Facility designed for the storage of unsaturated tailings material produced during ore processing. These facilities, unlike tailings dams, are not suitable for storage of supernatant water. | 24 |
Toxicity Characteristic Leaching Procedure (TCLP) | A laboratory Toxicity Characteristic Leaching Procedure (TCLP) described in the US EPA SW–846 Test Method 1311. The TCLP is designed to determine the mobility of both organic and inorganic analytes present in liquid, solid, and multiphasic wastes. | 56a(6) |
tonalite | Igneous rock similar to granite but containing mainly calcium feldspar rather than alkali (sodium and potassium) feldspar. | 54 |
TSF | See Tailings storage facility. | 54 |
vein | A narrow dyke-like intrusion of mineral traversing a rock mass of a different material. | 54 |
volcanic | Class of igneous rocks that have flowed out or have been ejected at or near the earth’s surface, as from a volcano | 54 |
wall rock | Rock mass adjacent to a fault, fault zone or lode | 54 |
Waste rock | Rock with insufficient amounts of economically valuable elements to warrant its extraction, but which has to be removed to allow physical access to the ore. Waste rock is typically blasted into smaller particles to allow its removal by truck and shovel. Disposal occurs in sub-aerial or subaqueous surface dumps or backfill to open pits or underground workings. In heap leaching, spent ore is sometimes referred to as waste rock. | 21 |
Material such as souls, barren or uneconomic mineralized rock, that surrounds a mineral or coal orebody and must be removed in order to mine the ore. This is generally referred to as waste rock in metalliferous mines or overburden, interburden, interseam or spoil in coal mines (MMSD, 2002). | 24 |
Term | Definition | Exhibit |
Waste rock dump (WRD) | A mined rock pile containing waste rock. | 21 |
Weathering | The processes by which particles, rocks and minerals are altered on exposure to surface temperature and pressure and atmospheric agents such as air, water and biological activity. | 21 |
WRD | See waste rock dump | 21 |
[*]Pursuant to r 21 of the Land Court Rules 2000, this is a corrected decision issued on 4 November 2016, and replaces the original decision issued on 31 October 2016.
[1]The ML’s covered by the EA as described in the Plan of Operations are: Central ML’s 1347, 1385, 1398, 1472, 1488, 1491, 1499, 1545, 10005, 10093, 10193, 10196, 10208, 10281 and 10283; Black Jack ML’s 1387, 1407, 1408, 1409, 1424, 1428, 1429, 1430, 1431, 1432, 1433, 1548, 1585, 1735, 10032, 10042, 10282, 10284, and 10285; Imperial ML’s 1348, 1490, 1521 and 10222. [Exhibit 6 (Doc. CAT-05)].
[2]At [31]; Exhibit 9, at [18].
[3]At [2] and Exhibit CAT-5, p 229ff; Exhibit 9, at [26]-[27].
[4]Exhibit 9, at [29].
[5]Exhibit 1, p 1.
[6]Exhibit 2.
[7]See below for further submissions regarding this point.
[8]Section 528 of the EP Act.
[9]Section 530 of the EP Act.
[10]Exhibit 6.
[11]Section 295(3) of the EP Act.
[12]Section 295(4) of the EP Act.
[13]Citigold’s submissions, paras [11]-[14].
[14]Respondent’s submissions, para [3].
[15]Exhibit 69, also known as ESR/2015/1758.
[16] Citigold Corporation Limited v Chief Executive, Department of Environment and Heritage Protection (No. 3) [2016] QLC 21.
[17]Unfortunately, the transcript for the resumed hearing reverted back to day 1 etc. To save confusion, transcript from the resumed hearing will be referred to as TR (meaning transcript resumed) followed by day and page reference.
[18]Exhibit 6.
[19]See definition of Nugatory, New Shorter Oxford English Dictionary, Volume 2, Clarendon Press, Oxford, 1993.
[20]Section 289(1) of the EP Act.
[21]T 9-79 lines 28-38.
[22]Exhibit 6, p 94.
[23]Citigold’s submissions, para [544].
[24]Citigold’s submissions, para [545].
[25]Exhibit 47 CAT-02, p 2.
[26]Sections 520 (1)(d), 521(1) and Schedule 2 of the EP Act.
[27]Section 521(2) of the EP Act.
[28]Sections 521(7) of the EP Act.
[29]Sections 521(9) of the EP Act.
[30]Exhibit 26, also known as EM 1010.
[31]Exhibit 10, para [22].
[32]Exhibit 69.
[33]Ibid, pp 8-9.
[34]The disturbance period provides for a regular review in recognition of the variable nature of disturbance (e.g. due to activities expanding or being progressive rehabilitated) and the subsequent rehabilitation liability. If this period is less than 1 year, FA should be calculated based on the maximum rehabilitation liability within the nominated disturbance period.
[35]Guideline footnote 6. Note: Some costs may not need to be included for certain suitable infrastructure if the EA holder can provide a written agreement (between the EA holder and the land owner) or a statement (if the EA holder is the underlying landowner) that the infrastructure can remain onsite and can demonstrate that the retention of the infrastructure is consistent with achieving the general rehabilitation goals of a site that is safe to humans and wildlife, non-polluting, and stable. Examples of suitable infrastructure include bores, clean water dams and access roads. This does not negate the need to obtain any other authorisations as required under the EP Act or other legislation.
[36]Guideline footnote 7. This reflects the costs to government to project manage, schedule or oversee the required works.
[37]Guideline footnote 8. The EA holder may nominate an alternative amount for these components (or variable amounts across each itemised activity). If the non-recommend value is used, quotes must then be attached with the application/information supplied to the department.
[38]Guideline footnote 9. This reflects the cost to government to do ongoing monitoring and maintenance required of rehabilitation works.
[39]Progressive certification is a process outlined under s 318Z of the Environmental Protection Act 1994 and allows the holder of an environmental authority to demonstrate that they have met all rehabilitation obligations. A certified rehabilitated area does not require financial assurance.
[40]Exhibit 20, also known as EM 1122.
[41]Respondent’s submissions, para [63].
[42]Respondent’s submissions, para [61].
[43]Section 548(1)(a) of the EP Act.
[44]Section 549(1)(d) of the EP Act.
[45]Sections 548(4) and 549(3) of the EP Act.
[46]Section 548 (2) of the EP Act.
[47]Exhibit 20, p 1.
[48]Ibid p 3.
[49]Ibid p 4.
[50]Exhibit 26, at p 9 and Exhibit 69, at p 10.
[51]Exhibit 26, at p 26 and Exhibit 69, at p 27.
[52]Exhibit 69, p 28.
[53]Chapter 5A, Part 6 of the EP Act.
[54]Chapter 5, Part 10 of the EP Act.
[55]Submissions at [111]-[122].
[56]T 9-88 line 2.
[57]Exhibit 20, at pp 8-10.
[58]Exhibit 20, at p 13.
[59]Exhibit 20 at p 22.
[60]T 3-34 line 25.
[61]Respondent’s submissions, paras [51]-[53].
[62][2014] 1 Qd R 216, paras [79]-[100].
[63]T 1-14 line 25.
[64]T 1-14 line 45.
[65][2001] QPEC 028 at [32].
[66] Tickner v Chapman (1995) 57 FCR 451 at 462; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-183.
[67] East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 [52].
[68] Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392.
[69](1979) 180 CLR 322.
[70][2014] 1 Qd R 216.
[71](2010) 190 FCR 248.
[72] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 34.
[73] R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497 at 504.
[74]See Barrier Reef Broadcasting Pty Ltd v Australian Broadcasting Tribunal (1992) 27 ALD 730 at 737; Riverina Broadcasters (Holdings) Pty Ltd v Australian Broadcasting Tribunal (1992) 28 ALD 813 at 818 where the tribunal ignored evidence tendered of depreciation charges claimed by a disappointed applicant for a commercial licence when this evidence was relevant to the issue of commercial viability.
[75] Oakley v The Chief Executive Administering The Coastal Protection & Management Act 1995 (2014) QPEC 58 and Cuthbert v Moreton Bay Regional Council (2015) QPEC 36 and (2015) QPEC 63.
[76]Section 163(2) CPMA.
[77]Oakley v The Chief Executive Administering The Coastal Protection & Management Act 1995 (2014) QPEC 58 at (page 3 line 5).
[78]Ibid at page 5 line 20.
[79]Ibid at page 5 lines 25-35.
[80]Cuthbert v Moreton Bay Regional Council (2015) QPEC 36 at (31.1).
[81]Cuthbert v Moreton Bay Regional Council (2015) QPEC 63 at (17).
[82]Applicant’s submissions at (69).
[83]Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 and McDonald v Director-General of Social Security (1984) 1 FCR 354.
[84]Applicant’s submissions at (78).
[85]Respondent’s submissions at (37-38).
[86]Gladstone Ports Corporation v Queensland Heritage Council (2012) QPEC 9, Traut v Faustmann Bros Pty Ltd (1983) 48 ALR 313 and Attorney General v Lawrence (2010) 1 Qd R 505.
[87]Evidence in Queensland – JRS Forbes at A.102 and Attorney General v Lawrence [2010] Qd R 505 at [30].
[88]Gladstone Ports Corporation v Queensland Heritage Council [2012] QPEC 9 at [15].
[89][2005] NSWSC 365.
[90]Evidence in Queensland – JRS Forbes, at pp 62-63.
[91]See Financial Assurance under the Environmental Protection Act Guideline v 3, at p 27.
[92]Section 4(1) of the LCA.
[93]Section 4(2) of the LCA.
[94]Section 7A of the LCA.
[95]Section 8 of the LCA.
[96]Section 9 of the LCA.
[97]Section 35(1) of the LCA.
[98]Section 35(3) of the LCA.
[99]Section 11 of the LCA.
[100]Section 24 of the LCA.
[101]See the list of matters in s 97 LCA.
[102]McDonald v Director-General of Social Security (1984) 1 FCR 354 at pp 356-357.
[103]See applicant’s Submission at (165) and respondent’s Submission at (8) and for judicial authority see Gallo v Chief Executive, Department of Environment and Resource Management [2013] QLAC 6 at [78].
[104]T 7-25 lines 41-44.
[105]Exhibit 32, MJL-44 at p 1.
[106]T 7-28 lines 9-20.
[107]T 7-27 lines 22-30.
[108]T 7-26 line 40 – T 7-27 line 10.
[109]T 7-27 lines 30-40.
[110]T 7-28 lines 3-5.
[111]Exhibit 35, Citigold Annual Report 2015 at p 34 – payments to Directors and Key Management Personnel, and p 35 – Service Agreements – Executive Chairman.
[112]Exhibit 35, p 31; T 8-8 lines 0-5.
[113]Exhibit 5.
[114]Exhibit 12.
[115]Exhibit 32.
[116]Exhibit 55.
[117]T 1-26 line 43.
[118]T 7-27 line 35.
[119]T 8-2; 7-28 line 29.
[120]T 7-29 line 1.
[121]T 7-29 lines 15-30.
[122]Exhibit 6.
[123]T 7-32 line 34.
[124]T 7-37 line 40.
[125]T 7-39.
[126]T 8-41 line 45.
[127]T 7-40 line 42.
[128]T 9-44 line 30.
[129]Respondent’s submissions, para [93].
[130]T 9-20 lines 28-45; T 9-20 lines 5-45; T 9-70 lines 15-23; T 9-71 lines 17–29.
[131]T 8-76 line 29 – T 8-77 line 19.
[132]T 8-66 lines 11-14 – T 8-66 lines 43-46 and Exhibit 32, pp 37 and 40.
[133]Exhibit 11, p 19 and Exhibit 34, p 7.
[134]T 9-2 lines 19-26 and Exhibit 5, p 166.
[135]T 8-78 lines 1-47.
[136]T 9-2 lines 19-26.
[137]Exhibit 5, pp 208-229.
[138]T 8-78 lines 28-29 and T 8-78 lines 14-15.
[139]Exhibit 47.
[140]Exhibit 47 CAT-01.
[141]Exhibit 47 CAT-01, pp 4-5.
[142]Exhibit 54, p 6.
[143]Exhibit 54, p 132.
[144]Exhibit 54, p 133.
[145]Exhibit 54, p 140.
[146]T11-81 lines 18-46.
[147]Citigold’s submissions, para [417].
[148]T 10-54 lines 14-16.
[149]T 10-55 lines 3-11.
[150]T 10-56.
[151]T 10-43 line 10.
[152]T 10-44.
[153]T 10-45 line 5
[154]T 10-43 line 30.
[155]T 10-44.
[156]T 10-48.
[157]T 10-49 line 15 and T 11-16 regarding process of sampling.
[158]T 10-51.
[159]T 10-51 and T 10-52.
[160]T 11-5.
[161]T 11-6 line 20.
[162]T 11-6 line 35.
[163]T 11-7 line 10.
[164]Exhibit 47.
[165]Respondent’s submissions, para [106].
[166]T 10-43 lines 32-48.
[167]T 10-44 lines 35-37.
[168]T 10-44 lines 20-26; T 10-46 lines 30-36.
[169]Waste Rock Report, March 2014 (Exhibit 28).
[170]Agreed glossary definition “Waste Rock”. See also EP Act s 13 for the definition of “Waste”.
[171]Respondent’s submissions, para [106].
[172]T 1-45 lines 3-5.
[173]T 1-54 line 20.
[174]T 10-45 lines 28-37.
[175]T 10-57 lines 30-39.
[176]T 11-26 lines 5-23.
[177]T 11-28 lines 27-31.
[178]T 10-49 lines 6-10.
[179]T 10-49 lines 12-25 and following.
[180]T 10-51 lines 5-8; T 10-51 line 44 – T 10-52 line 2.
[181]T 11-70 line 39.
[182]T 11-5 lines 35-36.
[183]T 11-7 line 23.
[184]T 11-74 lines 18-24.
[185]T 11-8 lines 19-26.
[186]Citigold’s submissions, para [410].
[187]Respondent’s submissions, para [98].
[188]Respondent’s submissions, para [99].
[189]T 10-61 lines 24-26.
[190]T 10-64 lines 8-18.
[191]Exhibit 9.
[192]Exhibit 9, para [5].
[193]Exhibit 9, paras [8]-[9] and [11]-[12].
[194]Exhibit 9, para [28].
[195]Exhibit 9 para [30].
[196]Exhibit 9, paras [41]-[46].
[197]Exhibit 7 and Ex 8.
[198]Exhibit 14.
[199]Exhibit 13.
[200]Exhibit 56.
[201]Exhibit 7 at CV.
[202]Exhibit 7 at CV.
[203]T 2-8 line 15.
[204]Exhibit 7 at CV.
[205]T 2-8 line 5.
[206]T 2-9 line 35.
[207]T 2-9.
[208]Citigold’s submissions, para [423].
[209]T 2-10 lines 35-40.
[210]T 2-10 line 40 – T 2-11 line 6.
[211]T 2-8 lines 31-35.
[212]T 2-8 lines 43-45.
[213]T 2-8 lines 17-18.
[214]T 2-8 lines 20-21.
[215]T 2-9 lines 4-6.
[216]T 2-9 lines 7-13.
[217]T 2-9 lines 15-25.
[218]T 2-9 lines 28-38.
[219]T 2-9 lines 40 – T 2-10 lines 4.
[220]T 2-10 lines 19-39.
[221]Exhibit 21.
[222]Exhibit 24.
[223]T 3-4 lines 20-27.
[224]T 3-40 lines 44-47.
[225]T 3-37 line 36 – T 3-38 line 4.
[226]T 2-22 line 15.
[227]T 3-41 line 0 – T 3-42 line 5.
[228]T 3-42 lines 24-29.
[229]T 3-65 line 12.
[230]T 3-72 lines 4-16.
[231]Respondent’s submissions, para [156].
[232]Exhibit 14, Thompson report 21.11.2015 at paras [46]-[47].
[233]TR 2-56 lines 3-7.
[234]TR 2-56 lines 9-13.
[235]TR 2-56 lines 15-25.
[236]TR 2-57 lines 33-40.
[237]TR 2-57 lines 42-45.
[238]TR 2-58 lines 5-13. In my view, Mr Thompson was referring to himself when he used the words “we’ve” and “we’re”.
[239]TR 2-61 line 12 – T 2-62 line 25.
[240]TR 2-61 line 12 – T 2-62 line 25.
[241]Exhibit 11.
[242]Exhibit 57.
[243]Exhibit 11 CV.
[244]Citigold’s submissions, first part para [424].
[245]Citigold’s submissions, second part para [424].
[246]Citigold’s submissions, second part para [424].
[247]T 6-22 lines 3-11.
[248]T 6-23 lines 0-35.
[249]T 6-22 lines 23-45.
[250]T 4-27 lines 15-47; T 4-32 line 36 – T 4-33 line 5.
[251]See, for example, Mr Anderson’s first individual report (Ex 11) footnote 1 p 3, footnotes 6-7 p 7, footnote 10 p 13, footnote 13 p 15, T 6-26 lines 10-20; and Mr Anderson’s second individual report (Ex 57).
[252]TR 2-53 lines 20-34.
[253]TR 2-50 line 37 – T 2-51 lines 17.
[254]TR 2-53 lines 38-39.
[255]TR 2-63 lines 10-2 – T 2-64 line 8.
[256]JER2 Exhibit 56, para [17].
[257]JER2 Exhibit 56, para [18].
[258]JER2 Exhibit 56, paras [21], [33] and [51].
[259]JER2 Exhibit 56, para [31].
[260]JER2 Exhibit 56, para [32(a)].
[261]JER2 Exhibit 56, para [32(b)].
[262]JER2 Exhibit 56, para [32(c)].
[263]JER2 Exhibit 56, para [44].
[264]JER2 Exhibit 56, para [26].
[265]JER2 Exhibit 56, para [27].
[266]JER2 Exhibit 56, para [28].
[267]JER2 Exhibit 56, paras [37]-[38].
[268]JER2 Exhibit 56, paras [55 c.]-[56 b.].
[269]JER2 Exhibit 56, para [55 i.].
[270]JER2 Exhibit 56, para [45].
[271]TR 3-27.
[272]TR 3-37.
[273]TR 3-41.
[274]TR 3-44/45.
[275]TR 3 -45.
[276]TR 3-72.
[277]TR 5-7.
[278]TR 3-74, TR 5-12.
[279]TR 3-59.
[280]TR 5-86.
[281]TR 5-42.
[282]TR 3-43.
[283]TR 3-43.
[284]TR 3-65.
[285]TR 4-70.
[286]TR 4-70.
[287]TR 4-71.
[288]TR 3-31.
[289]TR 3-65.
[290]TR 3-73.
[291]TR 3-27.
[292]TR 3-48.
[293]TR 3-30.
[294]TR 3-29.
[295]TR 3-73.
[296]TR 5-62.
[297]TR 5-71.
[298]TR 3-46.
[299]TR 3-47.
[300]TR 3-48 and TR 3-50.
[301]TR 4-3, but some qualification about the photographs taken.
[302]TR 4-4.
[303]TR 4- 5.
[304]TR 4-5.
[305]TR 4-5.
[306]TR 4-6.
[307]TR 4-7.
[308]TR 4-9.
[309]TR 4-27.
[310]TR 4-45.
[311]TR 4-66.
[312]TR 4-84.
[313]TR 5-18.
[314]TR 5-70.
[315]TR 5-70.
[316]TR 5-70.
[317]Guideline 3 of Appendix A, p 24; “The total rehabilitation liability reflects the total potential costs to rehabilitate significantly disturbed land, in a way that will ensure compliance with environmental conditions in the EA”.
[318]Respondent’s submissions, paras [174]-[177].
[319]Exhibit 47 CAT-02, p 15.
[320]Exhibit 69, p 24 footnote 6.
[321]Exhibit 69, p 20.
[322]Exhibit 32 MJL-46.
[323]Exhibit 55 MJL-59.
[324]Citigold’s submissions, paras [310]-[316].
[325]Exhibit 32 MJC-46, p 1.
[326]Exhibit 55 MJL-9, p 1.
[327]Citigold’s submissions, extracts from paras [352]-[380].
[328]Also known as MJL-17.
[329]Items in Exhibit 68 will be referred to by reference to the numbers used by Mr Dillon.
[330]TR 7-18 lines 9-28.
[331]Citigold’s submissions, paras [299] – [305]: AR.
[332]Respondent’s submissions, paras [198]-[200] AS.
[333]Citigold referred to ss 143, 191, 240-241, 318ZH-318ZI, 337-338 and 359. Other sections referencing the standard criteria for consideration in decision making include 58,175-176, 194 and 715D.
[334]Citigold’s submissions at (225).
[335][2006] QSC 84 at [35].
[336]Respondent’s submissions at (64).
[337]Ibid at (381).
[338]See sections listed in footnote 1.
[339]T 11-15 lines 13-19.
[340]Exhibit 70.
[341]Respondent’s submissions, paras [371]-[374].
[342]Exhibit 11, First individual Anderson Report at [104]-[105]; Exhibit 13 JER at [38]-[39]; Thompson at T 2-46 lines 23-43 and T3-55 lines 10-45.
[343]T 9-99 lines 37-44.
[344]T 9-100 lines 15-20.
[345]Citigold’s submissions, paras [208], [505]-[520] and Citigold Reply Submissions, paras [45]-[46].
[346]Section 295(4) of the EP Act.
[347](1991) 101 ALR 26 at 31.
