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Symbolic Resources Pty Ltd v Burston[2019] QLC 39

Symbolic Resources Pty Ltd v Burston[2019] QLC 39

LAND COURT OF QUEENSLAND

CITATION:

Symbolic Resources Pty Ltd v Burston & Anor [2019] QLC 39

PARTIES:

Symbolic Resources Pty Ltd

ABN 55 604 407 427

(applicant)

v

Malcolm Robert Burston

(objector)

FILE NO:

MRA020-18

PARTIES:

Symbolic Resources Pty Ltd

ABN 55 604 407 427

(applicant)

v

David Gullo

(objector)

FILE NO:

MRA103-18

DIVISION:

General Division

PROCEEDING:

Hearing of application for mining lease and objections

DELIVERED ON:

27 September 2019

DELIVERED AT:

Brisbane

HEARD ON:

10, 13 & 14 June 2019

Submissions closed 19 July 2019

HEARD AT:

Bowen

PRESIDENT:

FY Kingham

ORDER:

I recommend to the Minister for Natural Resources, Mines, and Energy, as the Minister responsible for the Mineral Resources Act 1989, that MLA100123 is rejected.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – application for mining lease – objections to application – where one objection was not served within time - where there was found to be substantial compliance with the requirements for a properly made objection - where the applicant applied for a mining lease without first holding an exploration permit – where the applicant amended an existing environmental authority to cover the new mining lease – where the Court found, inter alia, that the extent of the resource to be mined was ill-defined and the environmental impacts of the mine had not been assessed by the Department of Environment and Science and were unclear on the material before the Court – where the Court recommended that the Minister reject the application

Mineral Resources Act 1989 s 269(4)

Environmental Protection Act 1994 s 224

Armstrong & Anor v Brown & Anor [2004] 2 Qd R 345; [2004] QCA 80, cited

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99; [2011] FCAFC 59, applied

Derry v Peek (1889) LR 14 App Cas 337, cited

Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473; [1975] HCA 17, applied

Tickner v Chapman (1995) 57 FCR 451; [1995] FCA 987, applied

APPEARANCES:

A Smith, a director of the applicant

MR Burston, objector (self-represented)

D Gullo, objector (self-represented)

  1. [1]
    Symbolic Resources Pty Ltd applied for MLA100123 in the Mining District of Charters Towers, referred to as the “Christmas Gift” project. The purpose of the application is to mine gold and associated minerals. The area is located 27km SSW of Bowen in the Whitsunday Regional Council on a rural property known as “Milwarpa”. The area applied for is 30.24ha, with a 5m wide access route 5km from Roma Peak Rd to the boundary of the MLA. Ms Smith is the authorized agent for and a director of Symbolic Resources and represented the company at the hearing.
  1. [2]
    Two people objected to the MLA and represented themselves during the hearing; Mr Burston, the owner of Milwarpa, and Mr Gullo, the owner of the neighbouring property, “Sea Pearl”.
  1. [3]
    Symbolic Resources questioned whether the Court could consider Mr Gullo’s objection, submitting it was not properly made. Mr Gullo signed and lodged an objection with the Department of Natural Resources Mines and Energy, within the objection period.[1] However, when DNRME referred the MLA to the Court, it identified only Mr Burston as an objector. Later, DNRME made a second referral, naming Mr Gullo as an objector. Mr Gullo did not serve his objection on Symbolic Resources within time.[2] However, there is no evidence that Symbolic Resources suffered any prejudice because of a three-day delay in service. There has been substantial compliance with the requirements for a properly made objection.[3] This recommendation takes into account both objections.
  1. [4]
    Symbolic Resources led evidence of various conversations with the objectors,[4] apparently with the purpose of demonstrating the objectors were improperly motivated or said things about the proposed mine that are not true. Some of the conversations are without prejudice communications that Symbolic Resources cannot disclose to the Court without the consent of both parties to the conversation. I have disregarded any evidence of that nature. To the extent I have had regard to the remainder of their communications, they demonstrate the objectors hold strong feelings about this application. That is not unusual. Emotions often run high in disputes about conflicting uses of land and the potential for adverse environmental impacts. Symbolic Resources did not apply to strike out either objection as frivolous or vexatious.[5]
  1. [5]
    Although the objections raise a number of issues, in essence the objectors say mining is not appropriate in the MLA because of the impact on the grazing operation on Milwarpa and upon the environment, particularly given its location in the Don River catchment area, which is a coastal catchment for the Great Barrier Reef World Heritage Area.[6]
  1. [6]
    The matters raised by the objectors are conveniently dealt with under the criteria specified by s 269(4) of the MRA, to which I now turn.

Have the provisions of this Act have been complied with? (s 269(4)(a))

  1. [7]
    Mr Burston questioned whether Symbolic Resources had complied with the requirements of the Mineral Resources Act 1989, because he did not give the company permission to enter his property. Symbolic Resources entered Milwarpa under a prospecting permit in order to peg the area that it wished to apply for. Mr Burston relied on the Land Access Code[7] and statements in the Prospecting Guide,[8] both issued by DNRME. The Land Access Code does not apply to prospecting permits.[9] In any case, the statement in the Prospecting Guide refers to entering land for the purpose of prospecting or hand mining. In this case, Symbolic Resources held a prospecting permit for pegging and gave notice of entry for that purpose.[10] It did not require the prior consent of the land holder to enter for that purpose.[11]
  1. [8]
    Otherwise, Symbolic Resources provided evidence of compliance with the requirements for an application for a mining lease, prescribed by s 245 of the MRA.[12] After requesting and receiving further information from Symbolic Resources, DNRME issued the mining lease notice[13] on 2 November 2017. A pre-condition to the notice being issued is satisfaction of compliance with the requirements of the MRA for the application.
  1. [9]
    The objections question the adequacy of the information provided with the MLA. Those complaints are relevant to other criteria I must consider, about mineralisation, financial capacity, and environmental impacts.
  1. [10]
    The objectors did raise one issue that might be characterised as one of non-compliance, but with the Environmental Protection Act 1994, not the MRA. They submit Symbolic Resources used the wrong process by applying to amend its existing environmental authority to include the MLA. As a result, they say there has not been a proper assessment of the environmental impacts of the proposed mine, and the conditions imposed by the environmental authority are inadequate. I will consider that issue when addressing the environmental impacts of the proposed operation. It does not concern compliance with the provisions of the MRA, which is the focus of s269(4)(a).

Is the area applied for mineralised, or are the other purposes for which the lease is sought appropriate? (s 269(4)(b))

  1. [11]
    The application is to mine copper, titanium, graphite, silver, gold and palladium and for the associated purposes of processing plant, tailings or settling dams, workshops, machinery and storage, road access or right of way, mine waste and spoil dumps, water pipeline, water management, waterway go diversion, treatment plan and mill site, and temporary accommodation.[14] The associated purposes are appropriate for the proposed mining operation.
  1. [12]
    The only evidence of mineralisation relates to gold, although I accept that the other minerals may be found in association with a gold deposit. The lease area is within an historical gold producing area. The MLA includes the area of an old mining lease known as “Birthday Gift”, which seems to have been last worked between 1931–35, when it returned 606 ounces from 351 ton of ore. Symbolic Resources relied on this historical evidence as well as some surface indications of mineralisation.
  1. [13]
    Symbolic Resources estimates a primary deposit, around the previously worked area on the ridge within the MLA, at approximately 500 tonnes at or near the surface. The estimate appears to be based on a visual inspection. The company also estimates the MLA includes 35,000 lcm (loose cubic metres) of elluvial terraces and 52,000 lcm of alluvial drainage. It inferred those areas are generally mineralised because of their location below the primary deposit and some surface indications shown in photographs.[15] The approximate area of the elluvials and alluvials is shown in a map provided to the Court.[16]
  1. [14]
    However, Symbolic Resources did not provide evidence to explain how it had arrived at any of its estimates of volume of the deposits, nor any particular definition of the resource or its likely yield.
  1. [15]
    Symbolic Resources relied on evidence from Mr Murphy who said he has been involved in exploration and mining “for a fair part of my working life,” had been aware of the mineralisation on this property “for a number of years”, and had prospected on the area.[17] 
  1. [16]
    He gave evidence of mineralisation across the property. He observed scattered mineralised rocks on the land and in the drainage systems and clear signs of previous mining activities in various locations across the property. He hand sluiced the tailings at the site of the old stamper copper-mercury mill site, near Ward’s spring (or soak). He provided Symbolic Resources with samples from his fossicking. However, those samples were from around the old stamper area some 2.5 km downstream from the MLA.[18]
  1. [17]
    I accept the area is generally mineralised with gold.

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

  1. [18]
    Although there is evidence of mineralisation generally on this property and on the MLA, the objectors argue Symbolic Resources has not demonstrated there is an economically viable deposit.
  1. [19]
    The profitability of a proposed mine is relevant, because mining is unlikely to occur if it is not profitable. There would be no proper purpose in recommending the grant of a mining lease if the area will not be mined.[19]
  1. [20]
    Ms Smith said Symbolic Resources was unable to better define the resource because they were not able to re-enter under the prospecting permit, having pegged the lease. That may be so, but it was open for the company to have applied for an exploration permit to enable it to do so, before applying for the MLA.
  1. [21]
    Ms Smith said it is not feasible for a small miner to define the resource under an exploration permit, because of the expense in doing so. She said many small miners “short cut” the process by pegging a lease area without first holding an exploration permit.[20] Another disincentive to defining the resource under an exploration permit is that an exploration permit does not prevent a competing application being made, while an application for a mining lease does.
  1. [22]
    Holding an exploration tenure is not a pre-condition to the company applying for a mining lease. However, Symbolic Resources only held a prospecting permit that allowed it to peg the lease. It had no right to enter to further define the resource. It took and realised the risk that it is unable to provide specific information about the extent of mineralisation in the area applied for or the viability of mining the resource. The information provided to the Court is vague and unsatisfactory in the context of other relevant factors for this MLA.

Is the land and the surface area of the land applied for of an appropriate size and shape? (s 269(4)(d))

  1. [23]
    The area applied for is some 30 hectares. Symbolic Resources have identified productive use for mining or associated purposes of the MLA, presuming its assessment of areas of mineralisation is accurate. I have already indicated my concern about the basis for that assessment.

Is the term sought appropriate? (s 269(4)(e))

  1. [24]
    Symbolic Resources has applied for a term of 25 years. DNRME has adopted an operational policy for deciding the term of a mining lease.[21] It does not limit discretion for individual decisions. It is designed to provide guidance and promote consistency in decision-making. It requires an applicant to provide information that substantiates the term requested.
  1. [25]
    In its justification statement,[22] Symbolic Resources proposes three phases of operation.
  1. [26]
    In the first, lasting one to two years, it will delineate the elluvial/alluvial resource and the primary deposit, undertake mine planning, and establish accommodation and plant/processing site facilities. In the second, lasting seven to ten years, it will process the elluvial/alluvial resource and rehabilitate areas mined for five years post-mining. In the third, lasting another seven to ten years, it will extract and process the primary deposit and rehabilitate it for three years post-mining. 
  1. [27]
    Because the environmental authority requires progressive rehabilitation,[23] the primary deposit may well be mined while the elluvial/alluvial is being rehabilitated. Further, the mine plan takes into account the restriction in the environmental authority of disturbing no more than 10 ha at any one time,[24] and assumes active operations for between 26 and 35 weeks, depending on weather and environmental conditions. Symbolic Resources submitted that the resource may not be fully exhausted in the term applied for, but there is no evidence that would allow me to test that submission.
  1. [28]
    The justification statement suffers from the same lack of detail as other statements made in support of the MLA. Until it better defines the resource, Symbolic Resources cannot provide more detail. This is a consequence of its choice to proceed straight to an application for a mining lease. The lack of detail is a relevant consideration given the size of the area applied for and the proposed term of the lease. If granted, a reasonably large parcel of land will be in the exclusive possession of Symbolic Resources giving it rights to utilise an ill-defined resource, for a period that equates, in compensation terms, to a total loss of that area of land.

Does the applicant have the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease? (s 269(4)(f))

  1. [29]
    Symbolic Resources relies on an accountant’s assessment of its financial capability.[25] As the statement is confidential, I will not reveal its contents. The accountant refers to Symbolic Resources “proposed activities and expenditure commitments” without identifying what they are. The assessment is a single sentence asserting capacity. It contains no detail, and it is not supported by any source material about the company’s assets, income and liabilities. Symbolic Resources provided a scant assessment of initial start-up costs and weekly expenses once the mine is in full production mode.[26] The four directors of Symbolic Resources will provide the labour and accounts and book-keeping. The company or its directors already own the necessary plant and equipment, except for a caravan for the caretaker once the mine is operational. 
  1. [30]
    There is stronger evidence of technical capability. Between them, the directors have relevant mining, earthmoving, construction, and business management experience[27] that demonstrates their capability to undertake the proposed mining activity. The company currently holds another mining lease and an exploration permit.

Has the past performance of the applicant been satisfactory? (s 269(4)(g))

  1. [31]
    There is no evidence the past performance of Symbolic Resources has not been adequate. Ms Smith, one of its directors, formerly worked for DNRME in a role that required her to investigate complaints about miners and compliance with mining conditions. The directors have declared their history of compliance,[28] and there is no evidence the past performance of the directors and the company has not been satisfactory. As positive evidence of her past performance, Ms Smith tendered a letter from the Department of Environment and Science relating to a compliance inspection in 2018 for an environmental authority over two mining leases.[29] In the letter, DES noted no matters of concern or non-compliance and acknowledged Ms Smith’s proactive management approach on-site.

Is there any disadvantage to existing holders of or applicants for exploration permits or mineral development licences? (s 269(4)(h))

  1. [32]
    There are no holders of or applicants for those tenures for land within the MLA.

Will the operations to be carried on under the authority of the proposed mining lease conform with sound land use management? (s 269(4)(i))

  1. [33]
    This criterion is of most direct relevance to Mr Burston’s objection, as it introduces a competing land use with implications for his grazing operations on Milwarpa. Mr Burston filed a signed statement,[30] but decided not to give oral evidence, so the statement was not tested under cross-examination. For that reason, I have not had regard to any facts asserted by Mr Burston, if those facts were in contest. The following information is from Mr Burston and did not appear to be in contest.
  1. [34]
    Mr Burston is a third generation farmer and grazier. His family conducts a business trading as Brookston Pastoral Company, which employs Mr & Mrs Burston and their three children. It has nine full-time and six part-time employees. It operates four cattle properties: Codrilla, Broadlea, Highview, and Milwarpa, the one affected by the MLA. Depending on seasonal conditions, they run between 9,000 and 11,000 head of cattle across the four properties. The business owns a 50% interest in a cattle IVF centre in Rockhampton.
  1. [35]
    The business is used to accommodating other land uses and liaising with other land users. A rail line severs Broadlea. Blue Energy and Arrow Energy, have gas developments on that property. Mr Burston liaises regularly with Stanmore Coal, Newhope Mining, Fitzroy Australia and Peabody Australia regarding mining on other properties. Pipelines for Sunwater, Mitsui and Eungella affect two of them. On one property, there is a high voltage power line supplying power to Moranbah and surrounding mines.
  1. [36]
    A particular concern on all of the properties is farm biosecurity. The company is certified J-BAS7. J-BAS is a risk-profiling tool for Johne’s disease in cattle.[31] J-BAS7 is the second highest level of assurance against the disease in a herd. It is important to their business because it facilitates movement of cattle interstate and access to certain markets. Not many properties in Queensland have that status.
  1. [37]
    As well as biosecurity risks, Mr Burston is concerned the mining will impede the cattle accessing water within the MLA, and that mining operations will affect water quality and quantity off-site, particularly at “Ward’s Spring”.
  1. [38]
    In answer to those concerns, Symbolic Resources led evidence from Mr Cross, who formerly owned and managed it, and had run cattle on it for about 10 years before he sold it to the Burstons.[32]  Mr Cross said the MLA is in the least usable section of the property, with a carrying capacity of one beast (adult equivalent) per 12ha at best, assuming a good year and using supplements. Otherwise, the MLA is not suitable for any other agricultural purpose.
  1. [39]
    Under cross-examination by Mr Burston, Mr Cross agreed his estimate of carrying capacity equated to 179 head of cattle over the MLA and 1,200 over the entire property, at best. When questioned about the number of cattle on the property when he sold it to the Burstons, including cattle belonging to others on agistment, he conceded there were at least 1,600 head.[33] His concession about stocking rates at the time of sale casts doubt on his conservative assessment of the grazing capacity of Milwarpa.
  1. [40]
    Further, another witness, Gideon Pott, gave evidence that conflicted with that given by Mr Cross.[34] Mr Pott is a third generation grazier who lived on Milwarpa for over 53 years. He said that Milwarpa relied entirely on surface water until the 1960’s, when bores were introduced. The number of cattle on the property was then increased to the order of 2,000 to 2,400, depending on seasonal conditions.
  1. [41]
    It seems there is no contest the proposed mining operation will restrict the area available for grazing. Even on the most conservative estimate, the grazing capacity will be reduced by some 179 head. On Mr Burston’s assertion of a grazing capacity of 1,600 (which is below the lower end of the range given by Mr Pott) the reduction in capacity would be closer to 240 head or 15%. That is a significant reduction in the number of cattle that could be run on the property. Although loss of grazing capacity may be compensated for, it is still a relevant factor for the Court in making its recommendation on the MLA.
  1. [42]
    Another issue of concern to Mr Burston is the potential for impacts on the water supply for stock, both in quantity and quality. Symbolic Resources’ response to that concern is that the main water points are outside the MLA and in a different drainage system to the one operating in the MLA.
  1. [43]
    The focus of the evidence was on the impact on an in-stream spring or soak known as Ward’s spring. There was a dispute about what drainage system feeds the spring, and whether it is permanent or intermittent.
  1. [44]
    Again, I have not acted on any factual assertions by Mr Burston, because he did not take the stand. Again, Symbolic Resources relied on evidence from Mr Cross.
  1. [45]
    Mr Cross stated there are only limited intermittent flows in the watercourses on the MLA during periods of heavy and cumulative rain. The closest water point to the mining lease is Wards Bore, approx. 2.7km from the nearest MLA boundary, and a “soak” (Ward’s spring) fed from intermittent seepage located upstream and on a separate draining system to the ML drainage area.[35] Further, he said “the seepage only shows in exceptional years or back to back better than average years although it does not present soak water for the whole year in most cases generally drying up anytime from autumn to late spring depending on the season”.[36]
  1. [46]
    In response to my questions, Mr Cross conceded he did not know the source of the spring and that it was “probably the wrong thing to say” that it was fed from a different drainage system.[37] Contrary to Mr Cross’s evidence about Ward’s Spring, Mr Pott said in his 53 years on Milwarpa he had never seen the spring go dry.[38]
  1. [47]
    Mr Cross was not an impressive witness about either grazing capacity or water. His written statement included assertions that he later agreed were wrong or had no foundation. Where there is a conflict in the evidence of Mr Cross and Mr Pott, I prefer that given by Mr Pott who lived on the property for 53 years.
  1. [48]
    The final question of some relevance to this criterion is biosecurity. The objectors asked many questions of the witnesses for Symbolic Resources about biosecurity procedures, and whether Symbolic Resources had complied with requirements in the past, and could and would comply with them in the future.
  1. [49]
    To the extent there was any contest about the facts, because Mr Burston did not go into evidence, the statements made by the witnesses for Symbolic Resources are uncontested. Mr Burston’s concern is a reasonable one, given the hard-earned J-BAS7 status for the herd and its importance to the business. Mr Paterson gave evidence that this is a very high level of biosecurity that is required to gain access to higher-end export markets.[39] However, in making my recommendation, I must assume that Symbolic Resources will comply with legal requirements that affect its operations, including biosecurity procedures.
  1. [50]
    Biosecurity aside, there is some foundation for Mr Burston’s concerns about the impact of the proposed mining activity on the grazing operation. I find Mr Cross underestimated the carrying capacity of Milwarpa, and could not provide any useful information about the potential impact on water for stock purposes if the mine proceeds.
  1. [51]
    Although Symbolic Resources does not propose to mine Ward’s Creek, and the environmental authority would appear to preclude that, it will build a weir if required for its operations. Further mining has the potential to mobilise sediments into the watercourses, which could have an impact on water quality.
  1. [52]
    Because of the lack of information from Symbolic Resources about its proposed project, it is not possible to assess the magnitude of the risk to either water quantity or quality and, accordingly, its impact on the grazing operation. I am satisfied, though, that the proposed mining operation has a potential to affect the grazing operations outside as well as inside the MLA. That is a relevant consideration when assessing whether the operations will conform with sound land use management.

Will the operations cause any adverse environmental impact and, if so, to what extent? (s 269(4)(j))

  1. [53]
    Early in the proceedings, Symbolic Resources argued environmental issues are not relevant as this is a hearing about the application for a mining lease and the objections to it. Because it had already secured an amendment to its environmental authority to include this MLA, if granted, the conditions of the environmental authority were not a matter the Court could consider. By the end of the hearing, Symbolic Resources appeared to have abandoned that submission. In my view, it was proper to do so.
  1. [54]
    If it is going to recommend the grant of a mining lease, the Court must consider the potential for and extent of any adverse environmental impacts caused by the proposed operations.[40] That requirement applies whether or not an objector raises environmental issues in their objection. It also applies whether or not an objection to a draft environmental authority has been referred to the Court.
  1. [55]
    Both Mr Burston and Mr Gullo raised concerns about adverse environmental impacts in their objections. Although this was a common concern, it was Mr Gullo who led on the issue. He has worked in the mining industry for 17 years, and is currently the Senior Environmental Scientist working for Glencore’s Collinsville Open Cut mining operation (Coal), located approximately 80 km west of Bowen.  The objectors called two expert witnesses, whose evidence was uncontested: Mr Lucas, an environmental engineer and geomorphologist; and Mr Paterson, an environmental scientist.
  1. [56]
    There are three aspects to the environmental issues raised by the objectors:
  • whether adverse environmental impacts were assessed on the application to amend the environmental authority;
  • the risks of sediment mobilisation as a result of mining activities; and
  • the impacts on fauna, flora, and the ecosystem.

Were the potential adverse environmental impacts assessed on the application to amend the environmental authority?

  1. [57]
    When it applied for the MLA, Symbolic Resources already held an environmental authority under the Environmental Protection Act 1994 (EPVL03917316) covering two other tenures, ML1075 and EPM26160. It applied to amend the EPVL03917316 to include MLA100123, if granted.[41]
  1. [58]
    One of the requirements for such an application is to include “an assessment of the likely impact of the proposed amendment on the environmental values”.[42] That must include the following:
  1. “(i)
    a description of the environmental values likely to be affected by the proposed amendment; and
  2. (ii)
    details of any emissions or releases likely to be generated by the proposed amendment; and
  3. (iii)
    a description of the risk and likely magnitude of impacts on the environmental values; and
  4. (iv)
    details of the management practices proposed to be implemented to prevent or minimise adverse impacts; and
  5. (v)
    details of how the land the subject of the application will be rehabilitated after each relevant activity ceases”.[43]
  1. [59]
    When it receives an application to amend, DES must make an assessment-level decision: whether the amendment is a major or minor amendment.[44] Further, DES must give notice of its assessment-level decision to the applicant.[45] If it decides the application is for a major amendment, DES has the discretion to state, when giving notice to the applicant, that the public notification process applies to the application.[46] Unless it makes that statement in the notice, the public notification process does not apply, even for a major amendment.[47]
  1. [60]
    There is no evidence from DES on the question. The notice from DES to Symbolic Resources about its assessment level decision is not before the Court. There is an email from an officer of DNRME to DES referring to the application to amend the EA which sought the following advice: “Please advise the outcome to allow public notification to proceed. Where a code compliant EA is granted, advice of the financial assurance required would be appreciated.” [48] The response, if any, is not before the Court.
  1. [61]
    Symbolic Resources identified the application as a major amendment.[49] In any event, it was common ground that the application to amend the EA was not publicly notified and the application was granted.[50] Mr Burston and Mr Gullo did not have the opportunity to make a submission on whether DES should grant the application and, if so, on what conditions. They say the application was misleading and there has not been a proper assessment of the potential impacts of the mine.
  1. [62]
    In its application to amend the EA, in answer to a question about whether it currently operates under an ERA standard,[51] Symbolic Resources checked the “yes” box and stated: “Tenures are managed and operated on the one resource project”. Resource project is defined as: “resource activities carried out, or proposed to be carried out, under 1 or more resource tenures, in any combination, as a single integrated operation.”
  1. [63]
    A single integrated operation is defined in the following way:

“[A single integrated operation] [o]ccurs when all the below criteria are met:

  1. (a)
    the activities are carried out under the day-to-day management of a single responsible individual, for example, a site or operations manager
  1. (b)
    the activities are operationally interrelated
  1. (c)
    the activities are, or will be, carried out in one or more places
  1. (d)
    the places where the activities are carried out are separated by distances short enough to make feasible the integrated day-to-day management of the activities.”[52]
  1. [64]
    I doubt the three tenures can qualify as a single integrated operation because of the requirement in (d) that the distances between the tenures is short enough to make feasible the integrated day to day management of the activities. ML1075 and EPM26160 are located about 120 km away from MLA100123 by road (and 80-85km in a straight line.[53]
  1. [65]
    Further, the answers to Q14 are relevant. Q14 calls for information relevant to assessing environmental impacts. The applicant must make an assessment in response to a series of questions, and provide sufficient information to support their assessment. In answer to each question, the box N/A was checked, and a brief reason given for the assessment, with no supporting documentation:[54]

MANDATORY INFORMATION

 

A description of the environmental values likely to be affected by the proposed amendment*

Provided ☐

N/A ☒

Reason for N/A:

No Change

 

Details of any emissions or releases likely to be generated by the proposed amendment*

Provided ☐

N/A ☒

Reason for N/A:

No Change no emission or releases

A description of the risk and likely magnitude of impacts on the environmental values*

Provided ☐

N/A ☒

Reason for N/A:

No Change

Details of the management practices proposed to be implemented to prevent or minimise adverse impacts*

Provided ☐

N/A ☒

Reason for N/A:

project operates under the code of environmental compliance for standard exploration and mining projects

Details of how the land the subject of the application will be rehabilitated after each relevant activity ceases*

Provided ☐

N/A ☒

Reason for N/A:

project operates under the code of environmental compliance for standard exploration and mining projects

  1. [66]
    Of particular note is the answer to the first question “a description of the environmental values likely to be affected by the proposed amendment”. Mr Gullo questioned Ms Smith about the reason given for the assessment N/A: that there was “no change”. He put to her that there was a significant difference in the environmental values of ML1075, which is near Collinsville and some 250 km by waterway from the Great Barrier Reef waters and MLA100123, which is near Bowen, 30km by waterway and in a different regional eco-system to the Collinsville site.
  1. [67]
    Ms Smith appeared to have misinterpreted the question as one relating to impacts rather than the environmental values likely to be affected. She said “the impacts are about what our activities are and how they will impact that area.”[55] That response is surprising, given Ms Smith’s former role with the predecessor to DNRME. The question is expressly focussed on any difference in environmental values that might be affected.
  1. [68]
    Mr Gullo, who is an environmental scientist, gave evidence about the environmental values of the two sites.[56] Ms Smith did not challenge him on that, except to say there was similar vegetation.[57] I accept Mr Gullo’s evidence that the environmental values of the two tenures are different. The answer given by Symbolic Resources on its application to amend the EA is misleading. On the evidence before the Court, it is inaccurate.[58]
  1. [69]
    As there is no evidence from DES about its assessment-level decision, it is not possible for the Court to decide whether the answers considered above did, in fact, mislead it. However, they were apt to do so. It raises doubts about whether DES could or did properly assess the potential adverse environmental impacts and condition the activity appropriately. Given the evidence from Mr Lucas and Mr Paterson, there is a real question about whether standard environmental conditions are appropriate for this activity on the area applied for. I now turn to that evidence.

The risks of sediment mobilisation as a result of mining activities

  1. [70]
    Mr Lucas, environmental engineer and geomorphologist, provided a report about the aquatic habitat values that might be affected by the mine and the risks of the activity.[59] He has over 20 years’ experience in doing stream restoration and impact management programs for government agencies and companies in Victoria, New South Wales, Queensland and South Australia. He has undertaken assessments of the impact of mining operations on waterways.[60] His opinion was uncontested by another expert in his field.
  1. [71]
    Given the lack of detail in the material supporting the MLA, Mr Lucas assumed, in writing his report, that the proposal was to mine in the watercourses. That was clarified when he gave oral evidence. Nevertheless, he maintained his opinion there was a significant risk of sediment mobilization in the MLA.
  1. [72]
    Mr Lucas said the watercourses in the area he inspected are morphologically diverse, and that diversity provides the aquatic habitat values. The watercourses maintain a reasonable balance between sediment supply, storage and transport. The hydrology of the system is relatively unaffected by the existing land use activities.
  1. [73]
    If mining caused sediment mobilisation, the environmental values at risk are the diversity of habitat in downstream watercourses and, for finer sediment, the marine environment of the Great Barrier Reef lagoon. Mr Lucas was unable to describe the likely magnitude of impacts on those values on the limited information provided by the applicant, in particular about the precise location of disturbance, and whether it is within the flood envelope.[61] He estimated the flood envelope would extend more than three metres from the low bank of the waterway.[62] Although he was shown some data about rainfall events, he said he the flood envelope for the MLA would need to be properly modelled.[63]
  1. [74]
    Mr Lucas said the alluvial terraces would be subject to stream flows in larger rainfall and runoff events. Substantial earthworks would be required to construct diversion channels to take the flows out of the valley, and to protect mining operations from flood flows that would otherwise mobilise sediment that would flow through to the Great Barrier Reef lagoon.[64]
  1. [75]
    Mining close to the creek was not the only issue with sedimentation. Mr Lucas said that disturbed areas well back from the creek, in moderate to high slopes, will generate sediment that will travel. Then it is a question of whether it is adequately captured by sediment control systems before it enters the watercourse.
  1. [76]
    If the sediments are non-dispersive, Mr Lucas said it might be difficult to find enough room for sediment containment given the terrain of the MLA.[65] If the fine sediments are dispersive, they are very difficult to contain in sediment containing structures because they do not drop out of suspension and, if the systems fill, the fine dispersive sediment will continue to travel through. If fine dispersive material was in a flood flow out of this catchment (the Don River system), it would most likely travel through to the marine environment, the Great Barrier Reef lagoon.[66]
  1. [77]
    The impact of sediment on the Great Barrier Reef is a matter of current concern. It is the subject of a Bill now before the Queensland Parliament which, if passed, would strengthen the regulation of this impact in the EPA.[67] There is no evidence that DES has considered the potential impact of sediment mobilisation on the marine environment or sought to impose conditions directed to avoiding or mitigating that risk.

The impacts on fauna, flora, and the ecosystem

  1. [78]
    Mr Paterson is an environmental scientist who is very familiar with Milwarpa, having traversed most of the property. Mr Cross had previously engaged him in 2013 to do a survey for Mr Cross’ application to freehold the property.[68] Mr Paterson said the area of the MLA is representative of the rest of the property, but is a little steeper.
  1. [79]
    Mr Lucas described the environmental values of the land applied for from an ecological perspective. He said it has good grass cover, with a good diversity of grazing species both native and non-native. As well as its grazing value, it provides a source of food and habitat for granivorous birds such as the squatter pigeon, various finches and pale-headed rosella and red-winged parrots. He had observed the last two species within the mining lease area. The vine scrub on the elluvial areas of the MLA and on the side of the hills are premium breeding habitat for the northern quoll.[69]
  1. [80]
    Although it is not mapped as such at the moment, Mr Paterson said, from what he had observed on the lease area and inferred might be present, he thought the riparian vegetation in the area could be placed in regional ecosystem 8.3.3.[70] That is based on two things. First, the presence of Melaleuca leucadendron and Melaleuca fluviatilis, which he observed. Second, he inferred the likely presence of a threatened flora species, the Black Ironbox, because it is present further down Ward’s Creek below the mining lease boundary. He would want to investigate that further. He agreed that, as mapped currently, there is nothing to alert the applicant to the possibility of a category B sensitive area. Further, he noted that the area is wrongly recorded as including Melaleuca viridiflora, a matter of national environmental significance. In fact, that species is not present on the lease.
  1. [81]
    Mr Paterson also referred to five threatened species on the lease area that he said would require assessment under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth), with the possibility of an environmental offset being required if habitat was to be destroyed. The five species he referred to are the squatter pigeon, the masked owl, the northern quoll, the greater glider and the koala.  He observed the squatter pigeon near the MLA, the masked owl, northern quoll and greater glider near the MLA and their habitat within the MLA, and he has seen koalas on Milwarpa and there are food trees for koalas within the MLA. Mr Paterson said the principal threats to fauna from mining are vegetation clearance, disturbance of or alienation from water supply and contamination of water supply.[71]
  1. [82]
    Mr Paterson was questioned extensively about the biodiversity status and the vegetation status of the MLA. Because very similar terms are used in different maps used for different purposes under different Acts, both State and Commonwealth, the picture was confusing. Ultimately, Mr Paterson said that biodiversity status was such that at least part of it should be mapped as a category B environmentally sensitive area.[72] 
  1. [83]
    Like Mr Lucas, Mr Paterson was unable to assess the magnitude of the risk from the impact of mining in the area applied for because of the lack of information. However, as a general statement, he said “because of the interruption of ground cover, the water flows and potential clearing and removal of a lot of that mature vegetation within the site, there would be… I believe, a significant impact on particularly habitat for flora and fauna and the vegetation.”[73]
  1. [84]
    There is no evidence that DES has considered the biodiversity status of the MLA or conditions that would avoid or mitigate risk to environmentally sensitive areas or threatened species.
  1. [85]
    Symbolic Resources submitted that “the applicant does not believe their activities will have any adverse environmental impact.”[74] It relied on a DES information sheet[75] about how to address environmentally sensitive areas and offset requirements in an application for an environmental authority for resource activities. It says that it will have to undertake ground-truthing surveys before any impacts occur. However, Symbolic Resources’ answer to Q8 about environmental offsets suggests that the information sheet is not relevant. Further, it did not identify any condition of the EA that would require it to undertake such a survey.

Summary

  1. [86]
    In summary, although it is not necessary for me to decide the question, I doubt it is possible for Symbolic Resources to operate the three tenures to be included on the EA in a way that meets the definition of a single integrated operation, so as to be covered by a single EA.
  1. [87]
    Further, in its application to amend the EA, whether it intended to or not, in its answer to Q14, Symbolic Resources gave DES misleading information about the environmental values of the MLA. In the absence of evidence to the contrary, it is reasonable to assume DES took the application at face value.
  1. [88]
    Because the application to amend the EA was not publicly notified, persons such as Mr Burston and Mr Gullo were not able to challenge Symbolic Resources’ self-assessment that there was no difference between the environmental values likely to be affected on the three tenures to be covered by the EA. Further, they were unable to make submissions that might have alerted DES to potential environmental issues so that it could require Symbolic Resources to provide further information or undertake site specific investigations.
  1. [89]
    As matters stand, the EA imposes standard environmental conditions on scant information in an application that declares there is no relevant change in the environmental values that might be affected by the activities across the three tenures. The evidence of Mr Lucas and Mr Paterson raises a real question about the adequacy of the standard conditions to deal with adverse environmental impacts of the proposed activity on the MLA and the surrounding environment. The MLA is an area with a steep terrain, in a catchment that flows to the Great Barrier Reef lagoon. Without flood modelling and better definition of the areas to be mined, there is a real risk of sediment mobilisation. Further, the evidence about the flora and fauna on the MLA indicates it should be investigated to see whether it qualifies as an environmentally sensitive area.
  1. [90]
    The Court must consider whether the operations will cause any adverse environmental impacts and, if so, to what extent. I am satisfied there is a material risk of adverse environmental impacts both on and off the MLA. On the limited information provided by Symbolic Resources in its applications (both the MLA and the application to amend the EA), neither expert was able to assess the extent of the potential environmental impacts. There is no evidence that DES was placed in a proper position to do so. The Court cannot rely on EPVL03917316 as assurance that adverse environmental impacts will be avoided or minimised.

Will the public right and interest be prejudiced? (s 269(4)(k))

  1. [91]
    There is no relevant public infrastructure on the MLA. The Whitsunday Regional Council did not object to the use of roads managed by the local authority. Symbolic Resources says the mine will contribute to the local economy through purchase of services and supplies, and to the State economy, through royalty revenue. I note the latter depends on the mine producing sufficient resource to exceed the royalty threshold. Further, Symbolic Resources says the mine will gainfully employ three to four people, whom I assume to be the four directors of the company.
  1. [92]
    There is also a relevant public right and interest in the environment, particularly in the Great Barrier Reef Marine Park. I have already considered that when addressing the potential for adverse environmental impacts.

Has any good reason been shown for refusing the application? (s 269(4)(l))

  1. [93]
    The objectors have proposed a number of reasons for refusing the application: the uncertainty about the viability of the mine and Symbolic Resources’ financial capability to operate it, the impact on the grazing operation on Milwarpa, and the potential environmental impacts of the mine. I have already canvassed each of those reasons when considering other criteria.

Taking into consideration the current and prospective uses of the land, is the proposed mining operation an appropriate land use? (s 269(4)(m))

  1. [94]
    I have already considered this criterion when considering whether the proposed operations will conform with sound land use management.

Conclusion and recommendation

  1. [95]
    In conclusion, I must weigh the various factors that the Court must consider in making its recommendation. That means I must bring my mind to bear[76] upon the salient facts that give shape and substance to the matter[77] and consider how all the relevant factors weigh in the balance.[78]
  1. [96]
    The area applied for is generally mineralised and the other purposes are appropriate. I am satisfied Symbolic Resources has the technical capability to undertake the proposed mining operation and that its past performance, and that of its directors, has been satisfactory. No other tenure holders or applicants would be disadvantaged if the MLA is approved. There is likely to be some local economic benefit from the mine’s operation.
  1. [97]
    I am uncertain, however, that there will be an acceptable level of development and utilisation of the resource. It is ill-defined and there is scant information about the viability of the proposed operations, or about Symbolic Resources’ financial capability to undertake them.
  1. [98]
    Further, because Symbolic Resources has not delineated the resource in any meaningful way, I am uncertain that the area applied for is of an appropriate size and shape. That uncertainty also affects my assessment of the appropriateness of the lengthy term applied for. Further delineation of the resource and definition of the mining program may well demonstrate that the proposed area and term are appropriate. However, I can act only on the information before the Court.
  1. [99]
    The grant of the lease would have a material impact on the existing grazing operation. While the loss of land, and therefore grazing capacity, may be adequately compensated, there is a risk of impacts for stock water off the MLA that are hard to assess because of the limited information before the Court. The existing grazing operation is successful and ongoing, while the viability of the proposed mine is in question. The evidence about potential sediment mobilisation, and it’s potential to affect an important stock watering point suggests mining will not conform with sound land use management and that it is not a preferable land use to the current and prospective uses of the land.
  1. [100]
    Finally, on the evidence before the Court, I cannot assume that DES has conditioned the MLA in a way that properly protects the environmental values at risk from the activity. The risks to the environment of the MLA and also the potential impact on the Great Barrier Reef are also relevant to the public right and interest, and whether any good reason has been shown to refuse to grant the lease.
  1. [101]
    Weighing all those factors in the balance, I consider they count against rather than in favour of grant.
  1. [102]
    Accordingly, I recommend to the Minister for Natural Resources, Mines, and Energy, as the Minister responsible for the Mineral Resources Act 1989, that MLA100123 is rejected.

Order

I recommend to the Minister for Natural Resources, Mines, and Energy, as the Minister responsible for the Mineral Resources Act 1989, that MLA100123 is rejected.

FY KINGHAM

PRESIDENT OF THE LAND COURT

Footnotes

[1]Mineral Resources Act 1989 s 260; ex 3 9-10.

[2]Ex 3, 8.

[3]MRA s 392.

[4]Ex 3; Ex 26.

[5]MRA s 267A.

[6]T 3-41.

[7]Department of Natural Resources, Mines and Energy, “Land Access Code” (September 2016) ; Mineral and Energy Resources (Common Provisions) Act 2014 s 37.

[8]Ex 27.

[9]Ibid 1–2.

[10]Ex 26.

[11]MRA s 18, s 19.

[12]Ex 1; Ex 2.

[13]MRA s 252.

[14]Ex 24.

[15]Ex 19; Ex 39.

[16]Ex 14, map 2.

[17]Ex 4, 12–13.

[18]T 2–159, lines 5 to 37.

[19]Armstrong & Anor v Brown & Anor [2004] 2 Qd R 345 [15].

[20]T 2-56 l9 – 2-57 l46.

[21]Department of Natural Resources, Mines and Energy, “Deciding the Term of a Mining Lease” (operational policy, July 2018) .

[22]Ex 14, attachment 1.

[23]EPVL03917316; Ex 1, Eligibility and standard criteria for mining lease activities—version 2, B13–B22.

[24]Ex 1, Eligibility and standard criteria for mining lease activities—version 2, 3.

[25]Ex 7.

[26]Ex 13; Ex 23.

[27]Ex 10; Ex 13; Ex 15–18.

[28]Ex 15–18.

[29]Ex 25.

[30]Ex 28.

[31]Johne’s disease is a contagious, chronic and often fatal infection: Meat & Livestock Australia, “Johne’s Disease” .

[32]Ex 4; T 2–126 to T 2–149.

[33]T 2–136, line 5 to T 2–140, line 11.

[34]Ex 29.

[35]Ex 4, 9–10

[36]Ex 4 p 10

[37]T 2-149, lines 8 to 27.

[38]Ex 29.

[39]T 3­–87, lines 28 to 29.

[40]MRA s 269(4)(j).

[41]EPA s 224.

[42]EPA s 226(1)(k).

[43]Ibid.

[44]EPA s 228.

[45]EPA s 229.

[46]EPA s 230. The public notification process is provided for in EPA ch 5 pt 7 div 4.

[47]E Act s 232(2).

[48]Ex 6.

[49]Ex 6, Application to amend an environmental authority, 8; EPA s223.

[50]Ex 1.

[51]Defined as the eligibility criteria and/or the standard conditions set by the administering authority: Ex 6.

[52]Ex 6, Application to amend an environmental authority, 6.

[53]T 2–31, lines 30 to 40.

[54]Ex 6, Application to amend an environmental authority, 19.

[55]T 2–35, line 18 to T 2–38, line 44.

[56]His evidence was given in the form of propositions put to Ms Smith during questions. At the beginning of the hearing I swore Mr Gullo in as a witness so that any assertions of fact he made when asking questions was by way of evidence, and he could be questioned about them when he took the stand.

[57]T 2–35, lines 20 to 22.

[58]Derry v Peek (1889) LR 14 App Cas 337, 344.

[59]Ex 38.

[60]T 3–41.

[61]T 3–78.

[62]T 3–81.

[63]Ex 40; Ex 41; T 3-52; T 3-68.

[64]T 3-42 to T 3–43, line 25.

[65]T 3–82.

[66]T 3–83.

[67]  Environmental Protection (Great Barrier Reef Protection Measures) and Other Legislation Amendment Bill 2019.

[68]T 3–86.

[69]T 3–90.

[70]T 3–94 to T 3–95.

[71]T 3–­95 to T 3­­­–96.

[72]T 3–93 to T 3–100.

[73]T 3–91, lines 8 to 11.

[74]Applicant’s written submissions filed 19 July 2019 [39].

[75]Ex 37.

[76]Tickner v Chapman (1995) 57 FCR 451, 495. 

[77]Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99 [44]–[45]. 

[78]Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473. 

Close

Editorial Notes

  • Published Case Name:

    Symbolic Resources Pty Ltd v Burston & Anor

  • Shortened Case Name:

    Symbolic Resources Pty Ltd v Burston

  • MNC:

    [2019] QLC 39

  • Court:

    QLC

  • Judge(s):

    FY Kingham

  • Date:

    27 Sep 2019

Appeal Status

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

Cases Cited

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Symbolic Resources Pty Ltd v Kingham(2020) 5 QR 155; [2020] QSC 19332 citations
1

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