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Skilton v Lonergan[2019] QLC 28

LAND COURT OF QUEENSLAND

CITATION:

Skilton v Lonergan & Ors [2019] QLC 28

PARTIES:

Gerald David George Skilton

(applicant)

 

v

 

Patrick Joseph Lonergan

(objector)

 

Prue Madeline Lonergan

(objector)

 

and

 

Department of Environment and Science

(statutory party)

FILE NOs:

MRA152-18 (MLA100108)

EPA157-18 (EPSL04437816)

DIVISION:

General Division

PROCEEDING:

Hearing of application for mining lease and objection;

Objection to application for environmental authority

DELIVERED ON:

14 June 2019

DELIVERED AT:

In chambers

HEARD ON:

3 & 4 April 2019

Submissions closed 20 May 2019

HEARD AT:

Clermont

MEMBER:

PG Stilgoe OAM

ORDER/S:

  1. Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable Minister for Natural Resources, Mines and Energy that Mining Lease 100108 be granted over the application area.
  2. Pursuant to s 190(1)(a)(i) of the Environmental Protection Act 1994, I recommend to the administering authority that the Environmental Authority be issued in terms of the draft Environmental Authority EPSL04437816 without amendment.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – TITLES: RIGHTS, PERMITS, LICENCES AND LEASES ETC – where the applicant sought a mining lease for a small-scale gold mine – where the landholder objected to the mining lease primarily on grounds of non-compliance with the relevant mining legislation, past performance, and adverse environmental impacts – where there was a history of similar mining activities in the area – whether the applicant’s previous non-compliance and past performance were sufficient enough to warrant refusal – whether the adverse environmental impacts were proportionate to the aims of the relevant environmental protection legislation

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – ENVIRONMENTAL PROTECTION LEGISLATION – where a draft environmental authority was issued with standard conditions for a small-scale gold mine – whether the administering authority’s standard conditions were sufficient to achieve the aims of the relevant environmental protection legislation

Environmental Protection Act 1994 s 3, s 190, s 191

Mineral Resources Act 1989 s 235, s 268, s 269

ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347; [2001] QCA 119, followed

Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257; [2019] NSWLEC 7, cited

Linc Energy Ltd (in Liq): Longley & Ors v Chief Executive Dept of Environment & Heritage Protection [2017] 2 Qd R 720; [2017] QSC 53, distinguished

Valantine v Henry [2018] QLC 21, followed

Wilson v Southedge Daintree Pastoral Company Pty Ltd and Weymouth Pastoral Company Pty Ltd [2008] QLC 234, cited

APPEARANCES:

G Skilton, the applicant (self-represented)

DT Marland (solicitor), Marland Law, for the objectors

S Barclay (in-house legal), for the statutory party

  1. [1]
    Gerald Skilton has been mining for gold on Rolfe Creek, 31 km northwest of Clermont, for many years under two mining leases negotiated with the previous owners. He applied for the grant of a new mining lease on the property. The current owners, Patrick and Prue Lonergan have objected to the grant. They have also objected to the conditions in the draft environmental authority (draft EA). My task is to decide whether to recommend a grant of the proposed lease, taking into consideration the matters outlined in section 269(4) of the Mineral Resources Act 1989 (MRA).
  1. [2]
    As Preston CJ of the New South Wales Land and Environment Court observed,[1]the exercise I undertake is a qualitative, not a quantitative process. It is not a question of assessing each of the headings in s 269(4) and, if the proposed mine falls short on one aspect, determining that the mine should be refused. Instead, I must balance competing interests, recognising the potential impacts to the Lonergans’ property and the potential benefits to Mr Skilton and the community generally.
  1. [3]
    Mr Skilton, not surprisingly, submits that he does meet the requirements of s 269(4) of the MRA and that the conditions in the draft EA are sufficient. The Statutory Party, the Department of Environment and Science (DES), also submits that conditions in the draft EA are adequate and that no more, or no less, stringent conditions are necessary.
  1. [4]
    The Lonergans’ objections to the grant of the mining lease,[2]and concerns with the draft EA,[3]are many. Their lengthy lists really resolve into the following issues:
  1. Mr Skilton did not comply with the provisions of the MRA;
  1. mineralisation of the site;
  1. Mr Skilton’s past performance in complying with standard conditions, the environmental authority and his financial obligations;
  1. environmental considerations, including the rehabilitation prospects; and
  1. whether the draft EA sufficiently conditions the proposed mining operations.

Non-compliance with the provisions of the MRA

  1. [5]
    Although the Lonergans raised this as an issue in their objection to the grant of the mining lease, Mr Marland did not direct me to any specific evidence on the point and the Lonergans’ submissions do not take the point.
  1. [6]
    Filiz Tansley, the Manager (Assessment) Minerals of DES, was satisfied that Mr Skilton had complied with his obligations under the MRA when he submitted his application.[4] In the circumstances, I do not propose to consider this objection further.

Mineralisation of the site

  1. [7]
    Both parties agree that the proposed lease area has been extensively mined for gold in the past. The Lonergans submit that what little minerals remain are negligible or unproven. They submit that, without independent or verified testing of the lease area, I cannot be satisfied that the area is mineralised.
  1. [8]
    Mr Skilton considers that, despite the earlier mining, the remaining material can be mined profitably if worked carefully.[5]At the trial, Mr Skilton provided samples of material taken from the proposed area under his permit to prospect.[6]Mr Skilton put those samples in context, explaining to the Court that these samples, together with the history of the site, show that the area is mineralised.[7]Mr Skilton also provided the Court with a map showing previous leases granted in the area.[8]
  1. [9]
    Based on Mr Skilton’s evidence, I am satisfied that the site is sufficiently mineralised for the low level mining he proposes. Obviously, if Mr Skilton proposed large-scale, intensive mining, I would require better proof of mineralisation.

Mr Skilton’s past performance

  1. [10]
    The Lonergans submitted a litany of complaints against Mr Skilton. In the Lonergans’ view, Mr Skilton has shown an inability and unwillingness to comply with the basic requirements of his mining lease conditions.
  1. [11]
    While Mr Lonergan was cross-examined on his assertions, Mr Skilton was not. The statements contained in Mr Skilton’s material[9]are, therefore, largely unchallenged.

Locating a camp outside the lease area

  1. [12]
    Mr Skilton agrees that he did have a camp outside his previous mining lease. He submits that he had verbal permission from the previous owner of Rolfe Creek to establish his camp outside the lease boundary. He submits that this was evident to the Lonergans when they purchased the property. He says he attempted to negotiate with the Lonergans after they complained to the Department of Natural Resources, Mines and Energy (DNRME); the Lonergans were prepared to allow the camp to stay if Mr Skilton paid them $4000 per year. He says that, eventually, he moved the camp and cleaned up the land where it had been located.[10]
  1. [13]
    The DNRME report to the Land Court filed 10 April 2018 contains the following notes:

12 October 2016 Holder given direction to move Camp back onto lease.

11 May 2017 Camp was removed, tidied and relocated onto ML 70052 when reinspected.

Excavation outside lease area

  1. [14]
    Mr Lonergan gave evidence that in 2014 Mr Skilton excavated outside his mining lease area.[11]Mr Skilton says that this was not his work. Mr Lonergan believes that the work was undertaken by a person associated with Mr Skilton, during Mr Skilton’s lease. He considers Mr Skilton is responsible for ensuring that his co-workers comply with the requirements of the lease.

Pegging the lease

  1. [15]
    The Lonergans submit that Mr Skilton failed to lodge his application for the mining lease within five days of pegging the lease.[12] Mr Skilton denies any problem in this regard, and relies upon advice from DNRME that, if he was in breach, it is not a matter of any significance.

Road outside the lease area

  1. [16]
    Mr Skilton admits he pushed a track to his lease over what he believed, was previously an approved track but was outside his lease area. He did so because, he says, the Lonergans approached him and told him that his mining lease had no official access.[13]

Bringing earthmoving equipment onto the property without notice

  1. [17]
    The Lonergans submit that Mr Skilton brought earthmoving equipment onto the property without notice, without inspection, without a wash down and without a weed hygiene declaration.[14]
  1. [18]
    Mr Skilton says he brought the earthmoving equipment onto the mining lease as a direct result of the Lonergans’ complaint about access. He says that Mr Lonergan asked him whether the earthmoving equipment had been washed, and Mr Skilton told him it had been washed. Mr Lonergan gave similar evidence.[15] Mr Lonergan produced photographs of the earthmoving equipment which indicate that the wash down conducted before Mr Skilton brought the equipment onto the property may have been inadequate.
  1. [19]
    Mr Skilton submits that Mr Lonergan was not so concerned about biosecurity because he allowed Mr Skilton to wash down the earthmoving equipment on the property. Mr Skilton did not believe he needed Mr Lonergan’s permission to bring equipment onto his mining lease.

Breaches of the biosecurity plan

  1. [20]
    The Lonergans submit that Mr Skilton continues to breach their biosecurity management plan, because he does not always provide a weed certificate. While Mr Skilton does not believe he needs to strictly comply with the Lonergans’ biosecurity plan, he is happy to play his part in preventing the spread of noxious weeds, and he has tried his best to comply with the Lonergans’ requirements. However, Mr Skilton believes that the Lonergans’ requirements are unduly onerous. He says that he has repeatedly asked for a mailbox to be placed at the property gate so he can put weed certificates there rather than deliver them directly to the Lonergans whether in paper form or email.

Failure to pay annual compensation

  1. [21]
    The Lonergans submit that Mr Skilton did not pay the annual amount required under the existing compensation agreements for leases Mr Skilton held on the property and that this is an indication of his lack of financial capacity. Mr Skilton says that, when the Lonergans bought Rolfe Creek, he had a compensation agreement for one mining lease at $100 per year, but he thought that the compensation for the other mining lease was one dollar per year. Eventually, after some unsuccessful conversations with Mr Lonergan, Mr Skilton received confirmation that the second compensation agreement provided for an annual payment of $100. He promptly paid the amount owing. He says that unsuccessful conversations arose because Mr Lonergan wanted to increase the amount of compensation, regardless of the compensation agreements.

Discussion

  1. [22]
    The Statutory Party’s submissions do not deal with the issue of Mr Skilton’s compliance or otherwise with the conditions of his lease. However, in a letter dated 16 September 2016,[16] the Principal Mining Registrar resolved not to pursue Mr Lonergan’s complaint that Mr Skilton had been mining off lease because there was insufficient evidence. In relation to outstanding compensation payments, the Principal Mining Registrar noted that the amount of payment required was in dispute and that, when the compensation amount had been determined, Mr Skilton paid all outstanding amounts.
  1. [23]
    The Principal Mining Registrar had no issue with the placement of pegs for Mr Skilton’s new lease application.
  1. [24]
    The Department was still investigating complaints about the camp being off lease and a new track outside the existing lease. However, the Statutory Party has determined that Mr Skilton is a registered suitable operator.[17]
  1. [25]
    There is no doubt that Mr Skilton has not been the ideal miner. He has been used to a more casual “live and let live” relationship with the landowner. The significant animosity between the parties seems to be a result of Mr Skilton’s relaxed attitude meeting the Lonergans’ fierce desire to ensure strict compliance with their preferred way of managing their property.
  1. [26]
    Mr Skilton’s argument that the Lonergans was trying to in permissibly restrict his operations has some foundation. Section 235 of the MRA sets out the general entitlements of the holder of a mining lease. Broadly stated, Mr Skilton and any person who acts as his agent or employee, or any person who delivers goods or substances or provide services to him for the purpose of the mining lease, may enter and be within the area of the mining lease for any purpose for which the mining leases are granted or for any purpose permitted or required under the lease or by the MRA. That right of entry is only restricted by the standard conditions of the mining lease or environmental authority.
  1. [27]
    Mr Skilton does not need Mr Lonergan’s permission to enter, nor is he obliged to notify Mr Lonergan if he invites another person onto his mining lease. Mr Lonergan does not have the right to restrict access by putting a locked gate on the access track. Expecting good manners and/or good practice should not be confused with imposing an impermissible requirement. It seems to me that the Lonergans had been trying to impose a more onerous regime on Mr Skilton’s mining activities without, necessarily, the right to do so.
  1. [28]
    Although Mr Skilton’s alleged breaches of his mining conditions are numerous, they occurred against a background of uncertainty and within a new regime unilaterally imposed by new landowners. He has responded appropriately to the Lonergans’ concerns. The breaches are not so material as to justify, in their own right, a refusal of the mining lease.

Environmental considerations

  1. [29]
    I had the benefit of a report from Peter Spies, an expert in rural technology and agronomy.[18] He also gave evidence at the hearing.

Environmentally sensitive areas

  1. [30]
    Mr Spies’ report contained a section on threatened species,[19] and he told the Court that the proposed mine was located in an area of essential habitat for koalas,[20]resulting in the requirement for “a formal expert trapping and running surveys”.[21]
  1. [31]
    The Lonergans’ objections did not include a reference to the loss of critical habitat. Section 268(3) of the MRA provides that this Court:

…shall not entertain an objection or any evidence in relation to any ground if the objection or ground is not contained in the objection duly lodged in respect of the application.

  1. [32]
    The Court has adopted a strict view of s 268(3).[22] Therefore, I will not consider any evidence relating to this issue.

Area of Disturbance

  1. [33]
    Mr Skilton must ensure that the area and duration of disturbance to land and vegetation is minimised.[23] He is not required to avoid disturbance to land but his mining activity cannot cause more than 10 ha to be significantly disturbed at any one time.[24]
  1. [34]
    Mr Spies assumed that the whole area of the proposed mining lease will be subject to disturbance during the life of the mining lease.
  1. [35]
    The Statutory Party pointed out that the standard conditions restrict Mr Skilton’s activities to no more than 10 ha of disturbance at any one time. The 10 ha maximum is further limited in that there can be no more than 5 ha in a riverine area or mine workings at any one time.
  1. [36]
    Under cross examination Mr Spies acknowledged that the area of disturbance was limited to 10 ha at any one time.[25]
  1. [37]
    Mr Marland submits that the result of the mining operations would be a “checker board type impact” on the proposed lease which would impact “the entire area”.
  1. [38]
    All parties agree that this area has been extensively mined in the past. Mr Spies conceded that there was “good recruitment of trees and groundcover in that area”.[26] Mr Spies believed that the disturbance was some time ago and the land system was establishing over a significant spatial time.[27] If a “checker board type impact” were the likely result of mining activity in the area, one would expect to see it in the areas that had been previously under a mining lease. I did not observe that effect. Mr Marland’s submissions are not supported by any evidence.
  1. [39]
    The Lonergans’ concerns about the area of disturbance are without foundation if Mr Skilton complies with the conditions of his lease.

Erosion and Sediment Control

  1. [40]
    Because Mr Skilton will be undertaking alluvial mining, he must construct and use in-stream settlement ponds when necessary,[28] ensure that disturbance to the normal flow channel and flood flow is minimised,[29] leave a buffer zone if his mining the watercourse in an area of established woody vegetation,[30] and not mine the banks on the outer bend of the flood flow channel of the watercourse.[31] When Mr Skilton is mining in a watercourse he must, where practical, leave rocks larger than 400 mm in diameter in the watercourse and, for all practical purposes, return excavated material to the watercourse.[32] After completing mining activities, Mr Skilton must reinstate the normal flow channel, in a similar location and with similar characteristics to the previously undisturbed section, and provide adequate erosion protection.[33]
  1. [41]
    Mr Spies analysed the potential for soil loss from bare surfaces.[34] He concluded that the subject soil is highly erodible, and is of very low fertility, which restricts the ability to grow groundcover and grass species.
  1. [42]
    None of that is really in dispute. However, Mr Marland submits that, because the subject site is highly erodible, compliance with the standard conditions and industry codes is impossible.
  1. [43]
    Mr Marland’s pessimism is not borne out by history. I have already noted Mr Spies concession. I also observed the presence of groundcover and grass species in previously mined areas.
  1. [44]
    Mr Spies also suggested that Rolfe Creek is in the Fitzroy catchment, a catchment for the Great Barrier Reef, which will subject to regulation under legislation currently before the Federal Parliament.[35]I am guided by the law as it is, not what the law that might be at some future time, particularly when the draft legislation was not put in evidence before me.
  1. [45]
    While it is true that gully erosion is a problem, it is a problem whether or not mining activities taking place. The fragile nature of Rolfe Creek was evident from my site visit. Even without mining, the soil is poor and the groundcover is sparse. Erosion occurs on the creek bank whether or not mining is taking place; there was clear evidence of the creek bed being undercut, even where it was protected by extensive groundcover. I observed sections of the gully on an adjacent mining lease that had not been mined, but showed clear evidence of scouring and undercutting even in places where significant groundcover existed. The importance of proper and careful erosion and sediment control cannot be understated. Those matters are addressed in the standard conditions.

Top Soils and Overburden Management

  1. [46]
    Mr Spies concludes[36] that the subject soil is highly alkaline, extremely sodic and highly dispersible. He concludes, therefore, that topsoil and overburden cannot be managed adequately within the standard conditions.
  1. [47]
    Mr Skilton had concerns about the validity of the soil tests because Mr Spies did not gather the soil sample or undertake the testing personally.[37] While I understand Mr Skilton’s concerns, I do not think that the testing process invalidated the results.
  1. [48]
    Mr Spies also referred to the soil test taken from an undisturbed site on Rolfe Creek. The result of that test was similar; that soil was also highly alkaline, extremely sodic, and highly dispersible.
  1. [49]
    There is very little topsoil on Rolfe Creek, either on the subject site or on the property generally. The conditions relating to topsoil and overburden management[38] require Mr Skilton to remove the topsoil and stockpile it before carrying out any mining activity. He is required to prevent or minimise the mixing and erosion of topsoil and overburden stockpiles. He is to store topsoil and overburden in separate stockpiles, install silt fences or bonding, establish and maintain a temporary cover crop, limit the height of topsoil stockpiles to two metres and, where practical, reuse stockpiled topsoil within 12 months of storage.
  1. [50]
    The only part of that condition that might be difficult, given the nature of the soil, is to establish and maintain a temporary cover crop. Presumably, there are other ways in which the stockpiles can be preserved.

Rehabilitation

  1. [51]
    Mr Skilton’s rehabilitation obligations are contained within a suite of standard conditions.[39] He must rehabilitate areas disturbed by mining activities to a stable landform, similar to that of the surrounding undisturbed areas.[40] He must spread seeds or plant species that will promote vegetation of a similar species and density of cover to that of the surrounding undisturbed areas, or vegetation that is appropriate for providing erosion control and stabilisation of the disturbed areas.[41] Mr Skilton is not liable for rehabilitation of disturbed areas that existed prior to the grant of the mining lease unless he undertakes activities within that area during the term of his mining lease.[42]
  1. [52]
    As Mr Spies has observed, Rolfe Creek is Class VII Land, which is not suitable for cultivation but on which pastoral use is possible only with careful management. He acknowledges that the soil characteristics greatly restrict the land use potential.[43]
  1. [53]
    I have listed Mr Skilton’s obligations under the standard conditions to demonstrate that his obligation to rehabilitate is not a strict one. He is not required, as Mr Spies assumed, to restore the land to its highest and best use. He is not required to ensure that there is no loss of productive land or environmental quality.
  1. [54]
    It is unrealistic to expect Mr Skilton, or indeed any miner on this property to rehabilitate the land to either Mr Spies’ or the Lonergans’ very high standards. The Statutory Party and Mr Skilton both believe that he can comply with the standard conditions, and I should not proceed on an assumption that Mr Skilton will not comply with the standard conditions.[44]
  1. [55]
    Mr Spies is also concerned at the lack of detail in Mr Skilton’s proposal. He is critical of the fact that Mr Skilton does not set out his proposed erosion control measures, clearing methodologies, vegetation management, land degradation prevention or rehabilitation measures.
  1. [56]
    Mr Spies’ suggestion that the proposed mine should only be approved after extensive surveys, and only with the benefit of detailed management plans, is at odds with DES’s approach to small-scale mining in general, and Mr Skilton’s proposal for a small gold mine in a small area of a large property which is, essentially, a one-man operation.
  1. [57]
    As the Statutory Party submitted, a measure of environmental harm is inevitable in Mr Skilton’s proposal. The only way to avoid environmental harm entirely would be to refuse the proposed lease. The object of the Environmental Protection Act 1994 is:

... to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development).[45]

  1. [58]
    On any view, the Environmental Protection Act 1994 is not intended to prevent development (or mining) if the land cannot be fully rehabilitated. As always, it is a question of balance.

Draft EA

  1. [59]
    In accordance with its common practice, the Statutory Party has accepted Mr Skilton’s statement that his proposed activities will meet the eligibility criteria, and that he will comply with the standard conditions.[46]
  1. [60]
    The Lonergans consider that the standard conditions are inadequate. They want specific mine plans, detailed explanations of Mr Skilton’s plans for erosion and sediment control, and details of his plans to rehabilitate the land.
  1. [61]
    The type of mining that Mr Skilton wants to undertake is dependent on many things: the weather, the quantity of gold recovered and the ease of that recovery will determine where, when, and the extent of Mr Skilton’s activities. The standard conditions provide full flexibility. The Lonergans’ proposed conditions limit that flexibility and, if I impose them, would inevitably result in closer supervision by the Lonergans and more conflict between the parties. I am not persuaded that more stringent conditions would result in a better environmental outcome.
  1. [62]
    I am not minded to impose more stringent conditions simply because the Lonergans perceive that Mr Skilton will not comply with the standard conditions. Mr Skilton, I am sure, has learned some valuable lessons from this experience in the Land Court, and I am confident that he will be more careful in his operations in the future.
  1. [63]
    In the event that Mr Skilton breaches a standard condition, DES has enforcement options available to it.[47] Unfortunately, the Lonergans have no confidence in any compliance and enforcement regime.[48] This adds additional complexity to what is already a difficult relationship between Mr Skilton and the Lonergans.[49]
  1. [64]
    I can understand why Mr Lonergan might not be satisfied by a constant refrain from Ms Tansley that DES relies on the miner to do the right thing[50] and that it assesses an application like this as a desktop exercise, without first undertaking a site inspection.[51] I can understand why Mr Lonergan might be dissatisfied with a system where departments fail to respond to his complaints, or to report back to him any action undertaken to address his complaints.[52]
  1. [65]
    Unfortunately, that is the regime that applies to small-scale mining. A perceived shortcoming in that regime is not a reason to recommend against the grant of Mr Skilton’s proposed mine.

Other issues

  1. [66]
    The Lonergans’ objections include matters that were not the subject of evidence or final submissions from Mr Marland. For completeness, I will refer briefly to some of those objections.
  1. [67]
    Mr Skilton is, as he frankly admits, a small-scale miner. The technical expertise required for small-scale mining is very different from that required for a large operation. Mr Skilton will be using a small excavator, a skid steer, a small tip truck and a small wash plant. He will be constructing a small dam and settlement pond and campsite. With no disrespect to Mr Skilton, I do not think that any of these activities require a particular skill beyond an ability to work with machinery and tools.
  1. [68]
    Mr Skilton’s choice to appear before this Court without legal representation does not mean that he is without the financial resources to carry out the mining operations. His refusal to pay compensation due when the amount was in dispute is, likewise, not necessarily an indication that Mr Skilton lacks the financial resources to carry out mining operations.
  1. [69]
    The Lonergans suggest that Mr Skilton’s proposed mine will adversely affect air quality around the operation, and that there will be a noise impact. No one lives close to the proposed mine except Mr Murray Friese, who sometimes occupies a camp on a neighbouring mining lease. Significantly, the Lonergans do not live on the property, and I cannot see how they will be affected by any noise or dust from the proposed mine.
  1. [70]
    The Lonergans suggest that dust and noise will affect cattle in the vicinity. They have provided no evidence to support that assertion, and I have observed that the cattle have access to better country on the Lonergans’ property, which would tend to suggest that it is unlikely cattle will frequent this area.
  1. [71]
    The Lonergans submit that the public right and interest will be prejudiced by the grant of Mr Skilton’s proposed mine. They say that, according to DNRME’s own figures, there are 15,000 abandoned and un-rehabilitated mine sites across Queensland that pose an ongoing risk to the environment, landholders, and regional communities. They submit that the Minister would be “derelict” in approving a further mining lease for limited economic benefit to the state that poses a serious risk of environmental harm and disturbance to existing landholders and commercially viable business operations. They submit that the surety provided for under the proposed mining lease will not cover the full costs of rehabilitation. They point to the recent decision of Linc Energy Ltd (in liq): Longley & ors v Chief Executive Department of Environment and Heritage Protection[53] as demonstrating the difficulty of enforcing an environmental compliance order.
  1. [72]
    There is no doubt that there are a large number of abandoned and un-rehabilitated mine sites in Queensland, and that this is an ongoing problem. The Lonergans have not demonstrated that their cattle operation on Rolfe Creek is “a commercially viable business operation”. Whether or not Mr Skilton’s proposed mine is of limited economic benefit to the State is a moot point but, through the Small Scale Mining Assessment Hub, the State of Queensland has demonstrated a commitment to operations like Mr Skilton’s. It is true that enforcing a requirement to rehabilitate has been a thorny issue. Linc Energy was a unique situation and can in no way be used as an analogy for Mr Skilton’s operation.
  1. [73]
    The Lonergans submit that they have a forestry consent agreement on the title, and that the granting Mr Skilton’s proposed mine would make complying with the conditions of this agreement more onerous for them. Mr Spies’ evidence of the fragility of this country and the presence tends to suggest that forestry on Rolfe Creek is contraindicated. If a small-scale mine, in a limited area, represents an unacceptable soil disturbance, then commercial forestry would have an even greater impact.
  1. [74]
    The Lonergans are concerned about the storage of hazardous contaminants. They provided photos[54] showing multiple batteries stored unsafely. Mr Skilton agrees that proper containment of hazardous contaminants is important and that he will ensure compliance with the standard conditions in the future.[55] In a similar vein, the Lonergans are worried about Mr Skilton’s ability to bury 50 tonnes of waste within the lease area.[56] Appendix 2 to the Standard Conditions provides detailed definitions of general waste, the effect of which is to severely restrict the amount and types of waste Mr Skilton can bury on site. Further, the conditions express a preference that even general waste is disposed of offsite.[57] Accordingly, waste disposal on site should be the exception, not the rule.
  1. [75]
    The Lonergans submit that Mr Skilton’s proposed dam and settlement pond will provide safety risks for both cattle and the Lonergan children. Any dam that Mr Skilton builds will not be the only unfenced watercourse on Rolfe Creek. There are many hazards for children on a rural property. Adding another does not, in my view, justify refusal of the proposed mine.

Conclusion

  1. [76]
    Mr Skilton does not have an unblemished history as a miner. However, I do not consider that his past performance is so poor that it warrants a refusal of this proposed mining lease.
  1. [77]
    Undoubtedly, there are environmental challenges and risks. That is the nature of mining. I am satisfied that the standard conditions adequately address the challenges and risks.
  1. [78]
    I understand the Lonergans’ concerns about Mr Skilton’s proposed mine, but their concerns must be put in context. This area of their property has a long history of gold mining by small-scale miners. Mr Skilton’s proposed mine will add to the degradation of this area in a small way, but I am not satisfied that the magnitude of that degradation warrants a refusal of the proposed mine.
  1. [79]
    I make the following recommendations, pursuant to s 269(1) of the Mineral Resources Act 1989 and s 190(1)(a)(i) of the Environmental Protection Act 1994:

Orders:

  1. Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable Minister for Natural Resources, Mines and Energy that Mining Lease 100108 be granted over the application area.
  1. Pursuant to s 190(1)(a)(i) of the Environmental Protection Act 1994, I recommend to the administering authority that the Environmental Authority be issued in terms of the draft Environmental Authority EPSL04437816 without amendment.

PG STILGOE OAM

MEMBER OF THE LAND COURT

Footnotes

[1]Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257, 401.

[2]Ex 6, attachment FT-04.

[3]Ibid.

[4]Ex 1, para 10.

[5]Ex 2, page 3.

[6]Ex 5.

[7]T 1-21 line 6 to T 1-22 line 39.

[8]Ex 4.

[9]Ex 2, Ex 4.

[10]Ex 2, page 6.

[11]T 1-29, lines 27 to 44; T 1-33, lines 28 to 35.

[12]Ex 6, attachment FT-04.

[13]Ex 2, page 7.

[14]Ex 6, attachment FT-04.

[15]T 1-37, line 19 to T 1-38, line 20.

[16]Ex 6, attachment FT-04.

[17]Ex 6, para 15.

[18]Ex 8, page 13.

[19]Ex 8, para 5.1.5.

[20]T 1-76, lines 4 to 26.

[21]T 1–60, line 30.

[22]ACI Operations Pty Ltd v Quandamooka Lands Council Aboriginal Corporation [2002] 1 Qd R 347; [2001] QCA 119 per Davies JA at [5]-[6] and per Mullins J at [57]-[62]; and as followed in Wilson v Southedge Daintree Pastoral Company Pty Ltd and Weymouth Pastoral Company Pty Ltd [2008] QLC 234 per MacDonald P at [20].

[23]Ex 6, attachment FT-02, Standard Condition A2.

[24]Ex 6, attachment FT-02, Eligibility Criteria Paragraph A.

[25]T 1–73, lines 19 to 23.

[26]T 1-67, lines 25 to 26.

[27]T 1-67, lines 26 to 28.

[28]Ex 6, attachment FT-02, Standard Condition C1.

[29]Ibid Standard Condition C2.

[30]Ibid Standard Condition C5.

[31]Ibid Standard Condition C6.

[32]Ibid Standard Condition C7.

[33]Ibid Standard Condition C8.

[34]Ex 8, para 5.1.3.

[35]T 1-65, lines 6 to 19.

[36]Ex 8, para 5.1.2.

[37]Applicant’s closing submissions, filed 18 April 2019.

[38]Ex 6, attachment FT-02, Standard Condition A7.

[39]Ibid Standard Conditions B 13 to B22, C1 to C9.

[40]Ibid Standard Condition B18.

[41]Ibid Standard Condition B19.

[42]Ibid Note 50.

[43]Ex 8, para 5.1.1(b).

[44]Valantine v Henry [2018] QLC 21 [69].

[45]Environmental Protection Act 1994 s 3.

[46]Statutory Party’s closing submissions, para 5.

[47]Ibid para 29.

[48]T 1-38 line 34 to T 1-39 line 5.

[49]T 1-37, lines 10 to 15; T1-37, lines 35 to 39; T 1-40, lines 8 to 30.

[50] T 1-9, lines 35 to 38; T 1-12, lines 37 to 45; T 1-16 lines 12 to 13.

[51]T 1-9, lines 28 to 30.

[52]T 1-39, lines 4 to 5.

[53][2017] 2 Qd R 720.

[54]Ex 6, attachment FT-04.

[55]Applicant’s closing submissions in reply, page 3.

[56]Ex 6, attachment FT-02, Standard Condition B6.

[57]Ibid Note 28.

Close

Editorial Notes

  • Published Case Name:

    Gerald David George Skilton v Patrick Joseph Lonergan, Prue Madeline Lonergan and Department of Environment and Science

  • Shortened Case Name:

    Skilton v Lonergan

  • MNC:

    [2019] QLC 28

  • Court:

    QLC

  • Judge(s):

    Member Stilgoe

  • Date:

    14 Jun 2019

Appeal Status

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