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Hoffman v Hatfield[2019] QLC 48

LAND COURT OF QUEENSLAND

CITATION:

Hoffman v Hatfield [2019] QLC 48

PARTIES:

Stanley William Hoffman

(applicant)

 

v

 

Amber Hatfield & Travis Hatfield

(non-active objectors)

FILE NO:

MRA070-19 (MLA 20624)

DIVISION:

General Division

PROCEEDING:

Hearing of application for mining lease and objection

DELIVERED ON:

19 December 2019

DELIVERED AT:

Brisbane

HEARD ON:

11 December 2019

HEARD AT:

Brisbane

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, thatML 20624be granted for the purposes applied for, except for living quarters/camp.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the applicant applied for a mining lease over a grazing property to mine alluvial gold and tin – where the mining lease applied for formed part of a greater mining project comprising other mining leases – where the objectors to the mining lease did not elect to be active parties in the hearing – whether a change in the background land tenure affected the validity of the application – where there had been significant delays in progressing the mining lease application – whether the applicant would develop and utilise the resource – whether the proposed mine is an appropriate land use in the context of the current and prospective uses of the land by the landowners

Mineral Resources Act 1989 s 252, s 252A, s 252B, s 269(4), s 392

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

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

Tickner v Chapman (1995) 57 FCR 451; [1995] FCAFC 1726, cited

APPEARANCES:

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

No appearances for the objectors

  1. [1]
    Mr Hoffman has applied for a mining lease (MLA 20624) to mine alluvial gold and tin ore on Spring Hill Station, approximately 60 km north-west of Mount Carbine, North Queensland. The owners of the property, Mr and Mrs Hatfield, lodged an objection to the grant of the mining lease, but did not elect to be active parties in the hearing. That means they played no active part in the Court process.[1] Nevertheless, I must consider their objection when deciding what recommendation to make on Mr Hoffman’s application.[2] In addition, I must consider statutory criteria specified in s 269(4) of the Mineral Resources Act 1989.

Has Mr Hoffman complied with the provisions of the MRA?[3]

  1. [2]
    The application has an unusually lengthy history. Mr Hoffman lodged the application in July 2009, but did not publicly advertise or serve it on Mr and Mrs Hatfield until 2019. I will return to the explanation for the delay later in these reasons. For present purposes, the relevance of the delay is that the tenure changed in the intervening period, from leasehold to freehold. Mr & Mrs Hatfield questioned the validity of the application given that change. They also noted an error in the description of the current tenure in the public notice for the application.
  1. [3]
    When he applied for the lease in 2009, Mr Hoffman was required to describe all parcels of land the subject of the application, and to specify their current use.[4] In his application, Mr Hoffman described the land tenure type as GHPL[5] Lot 581 CF 15. There is no suggestion that description, then, was inaccurate.
  1. [4]
    By the time Mr Hoffman publicly notified the application in 2019, the land was freehold. Mr Hoffman wrongly stated the title reference in the public notice as Lot 581 SP 263570, instead of Lot 581 SP 263576, although he included the name of the property, Spring Hill Station.
  1. [5]
    I am not convinced the error in the title reference constitutes a non-compliance with the requirements of the MRA. An applicant is required to publish a copy of the mining lease notice in an approved newspaper circulating generally in the area of the subject land.[6] The mining lease notice does not include any details of the background land tenure. Although there is a form for public notice on the Department of Natural Resources, Mines and Energy’s website, which Mr Hoffman used, the relevant section of the MRA requires the mining lease notice to be published, not any other form of notice. The notice Mr Hoffman published, then, appears to provide more information than the MRA requires.
  1. [6]
    In any case, if the error in description of the title reference did constitute a non-compliance, it has no consequence for the application. On 11 April 2019, a delegate for the chief executive recorded her satisfaction there had been substantial compliance[7] with the requirements for publicly notifying the application.[8] Because the name of the property was included, she did not believe the typographical error in the title description would have prevented an interested party from making an objection.[9] The effect of her decision is that Mr Hoffman’s notice is deemed to comply with the requirements of the MRA.
  1. [7]
    A delegate of the chief executive of DNRME issued the mining lease notice on 28 February 2019.[10] The chief executive cannot issue that notice unless satisfied the applicant is an eligible person and has complied with the requirements for the application.[11]
  1. [8]
    I am satisfied the change in land tenure and the error in the public notice have no consequence for the validity of this application.

Is the land mineralised or are the other purposes applied for appropriate?[12]

  1. [9]
    The application is to mine gold and tin ore and for the associated purposes of living quarters/camp and water supply.
  1. [10]
    Mr Hoffman has not provided quantifiable evidence of mineralisation. The resource is alluvial, and thus difficult to quantify. He estimates the gold yield in the region is typically 0.3g/m3. Tin is a secondary mineral and by-product of the gold processing.[13]
  1. [11]
    Queensland Globe,[14] an online database of publicly available information about land provided by the Queensland Government, records historical gold workings to the north-west and south-west of the MLA area. Further, Mr Hoffman holds two other leases on this property, one of which is productive of gold.
  1. [12]
    Mr Hoffman has no formal qualifications, but has been mining on and off since the early 1980s. A geologist provided him with some informal instruction about surface indications of land that suggest gold mineralisation. Mr Hoffman personally pegged the area and took samples within the MLA boundaries. He recovered sufficient gold to satisfy him the area is prospective.
  1. [13]
    Although limited, there is evidence of mineralisation. The other purposes for which Mr Hoffman applies are associated with and appropriate purposes for a mining lease of this nature. However, Mr Hoffman has an established camp on ML 20324. He advised the Court that he does not intend to establish a camp on the lease area. It is not necessary, therefore, to include that as a purpose of the lease.

Will there be an acceptable level of development and utilisation of the mineral resources?[15]

  1. [14]
    The delay between application and public notification is inordinately lengthy for a relatively small mining application. This raises a question about Mr Hoffman’s intentions and his ability to develop the mine. However, Mr Hoffman has provided an affidavit which explains the circumstances that prevented the application proceeding.[16]
  1. [15]
    For most of the decade, Mr Hoffman suffered significant and enduring ill health due to complications from surgery in 2000. As a result, Mr Hoffman says he did not respond to correspondence from DNRME (or its predecessors) dated 2 November 2009, 24 May 2012, and 24 August 2012. He also cancelled an appointment with DNRME on 26 June 2015. Mr Hoffman has been in good health for the last 3 years.
  1. [16]
    Fires in or near the lease area prevented the application progressing in 2012. Had it progressed then, a departmental officer would have issued a certificate of application[17] and a certificate of public notice.[18] Mr Hoffman would have been required to post the certificate on the datum post and ensure it remained so posted until the last objection day.[19] On 2 October 2012, DNRME cancelled an appointment with Mr Hoffman because of fires in the area, evidently because of concerns that the datum post and certificate would not survive the fires.
  1. [17]
    By 2016, Mr Hoffman believed he had an agreement to sell his interest in two other leases on Spring Hill Station (ML 20324 and ML 20325) and his interest in MLA 20624. He had also received approval of his application to include ML 20624 on an existing environmental authority for the other two leases (EPSL 00280913). Mr Hoffman thought the buyer would pay fees on owing on the environmental authority, but that did not happen and the EA was suspended. The agreement to transfer the leases did not complete.
  1. [18]
    In April 2018, Mr Hoffman paid the outstanding fees and the Department of Environment and Science lifted the suspension of the EA. That allowed Mr Hoffman to resume operations on ML 20324 and ML 20325. On 16 October 2018, those leases were renewed and Mr Hoffman advised DNRME he was ready to proceed with MLA 20624.
  1. [19]
    Mr Hoffman intends to run the three leases on Spring Hill Station as a single project. ML 20324 is primarily the camp lease, although it does include a small area of alluvials that he will mine for gold. The primary gold mine will be on MLA 20624 for gold. When that is exhausted, Mr Hoffman will mine ML 20325, primarily for tin. That sequence makes sense because Mr Hoffman will have to adjust his plant in order to process tin ore.
  1. [20]
    Mr Hoffman now has an operational partner for the mine, who is a fitter and who will do most of the work at the mine. Although Mr Hoffman’s history on his other mining leases is not strong, he has provided an adequate explanation for the delay in this application.

Is the area an appropriate size and shape?[20]

  1. [21]
    The area applied for is 7.7 hectares and follows along the banks of an unnamed gully off the eastern side of the St George River for a distance of approximately 3 km. Mr Hoffman has chosen an area he considers likely to be mineralised. There is no evidence the area is not an appropriate size and shape.

Is the term appropriate?[21]

  1. [22]
    The applicant has applied for a term of 10 years, to allow for development, mining, and rehabilitation. The term is standard for a small mining operation of this nature. There is no evidence the term is not appropriate.

Does Mr Hoffman have the necessary financial and technical capabilities?[22]

  1. [23]
    Mr Hoffman has over 30 years of experience in prospecting, sampling rocks, and building machinery and plant for mining. He has also held and operated other mining leases, including two on Spring Hill Station, which were recently renewed.
  1. [24]
    Mr Hoffman’s operational partner is a fitter by trade and is able to operate the equipment for the mine.
  1. [25]
    Mr Hoffman already owns all the necessary plant and equipment and there will be no start-up capital costs. Mr Hoffman expects the mine will return a modest income for him and his partner.
  1. [26]
    I am satisfied Mr Hoffman has the necessary financial and technical capabilities for a mine of this nature.

Has Mr Hoffman’s past performance been satisfactory?[23]

  1. [27]
    I have already noted the circumstances that led DES to suspend Mr Hoffman’s EA for non-payment of fees.
  1. [28]
    The DNRME officer who completed the referral drew another non-compliance to the Court’s attention:[24]

“Underground water rights non-compliance issued on granted MLs 20324 and 20325 which was issued on 12/12/17. Mr Hoffman lodged the required reports with the department on 13/09/2018. These compliance notices were issued to all granted permits under the MRA as a result of legislative changes.”

  1. [29]
    At the hearing, Mr Hoffman’s agent told the Court this notice related to a new requirement to report on water usage.
  1. [30]
    Mr Hoffman has an unfortunate history of being unresponsive to correspondence from the department and neglecting his requirements to pay regulatory fees. However, there is no evidence of non-compliance with conditions regulating his method of mining or rehabilitation under former leases. From 2018, when he engaged his current agent to assist him with tenement management, he has shown marked improvement in attending to regulatory requirements. I have made the recommendation that the lease be granted in the belief that Mr Hoffman will continue to seek advice and support to fulfil his responsibilities.

Is there any disadvantage to other miners?[25]

  1. [31]
    There are no holders of or applicants for exploration permits or mineral development licences for land within the lease area.

Will the operations conform to sound land use management?[26]

  1. [32]
    Mr and Mrs Hatfield say the mine could interfere with their use of the land for cattle grazing and timber milling. I have considered those matters later in these reasons.
  1. [33]
    Otherwise, the area applied for follows a watercourse in rugged terrain. Broadly speaking, the area is mineralised and gold mining has a long history in the region. Mr Hoffman’s mine will be subject to the conditions of the EA.

Will the operations cause any adverse environmental impact and, if so, to what extent?[27]

  1. [34]
    Mr and Mrs Hatfield raised a concern about potential biosecurity impacts from the mining activity. All Queenslanders are subject to a “general biosecurity obligation” to take all reasonable and practicable measures to prevent or minimise a biosecurity risk.[28] Mr Hoffman told the Court he understood the need to wash down his vehicles before entering Spring Hill Station.
  1. [35]
    Mr Hoffman has decided not to establish a camp on ML 20624, to avoid the environmental impact of a second camp on the property.
  1. [36]
    Mr Hoffman’s activities on all three leases will be subject to his EA. That EA requires him to comply with the Code of environmental compliance for Mining Lease projects – Version 1.1.[29] There is no evidence that compliance with the EA will be inadequate to deal with adverse environmental impacts on the lease area.

Will the public right and interest be prejudiced?[30]

  1. [37]
    There is no public infrastructure on the lease area. There is no evidence that the public right and interest will be prejudiced.

Has any good reason been shown for refusing the application?[31]

  1. [38]
    Prior to DNRME issuing the mining lease notice, Mr Hoffman submitted an updated access application, to amend the access described in the application.[32] It runs along the same access as he uses for MLs 20324 and 20325 and provides a shorter access between the camp on ML 20324 and the lease area.
  1. [39]
    There is no agreement with Mr and Mrs Hatfield about the access route or about compensation. They raise the prospect of Mr Hoffman removing mill-able timber to construct the access track. The Minister cannot grant ML 20624 until the miner and landowners agree on compensation or the Court determines what amount the miner pay.[33] Either the agreement or the Court order can account for any loss of mill-able timber.
  1. [40]
    The objection does not raise any other reason for refusing the lease, nor does any of the other material before the Court.

Taking into consideration the current and prospective uses of the land, is the proposed mining operation an appropriate land use?[34]

  1. [41]
    In their objection, Mr and Mrs Hatfield described their plans for Spring Hill Station, and their concern that the mine will interfere with their activities.[35] They plan to improve infrastructure in the next five years by building dams, paddocks, and laneways. Their prime concern is the impact the mining lease may have on their potential ability to graze cattle. The majority of Spring Hill Station is mountainous. Only a small percentage of land is available for cattle to graze safely and cost-effectively. MLA 20624, as well as ML 20324 and ML 20325, include land for natural grazing, mustering, or droving. The area of the MLA blocks or divides the hillier country from the hurricane boundary fence.
  1. [42]
    Mr and Mrs Hatfield are also concerned about untamed stock, which they say are afraid of human activity. They worry that the cattle may move on from the preferred grazing land before they have had the opportunity to develop and improve it.
  1. [43]
    Mr Hoffman, through his agent, responded to that objection as follows:[36]

“ML 20624 is primarily located within a seasonal creek bed and is unlikely to have a significant impact on cattle grazing. The area is inaccessible in the wet season and the rivers run dry in the dry season. No fences will be erected around the mining lease therefore the grant of tenure is unlikely to impede the free movement of cattle in the area.”

  1. [44]
    In the absence of evidence from Mr and Mrs Hatfield, I cannot assess how the mine, and access to it, might interfere with the current or proposed grazing enterprise on Spring Hill Station. I have no basis for finding the mine is not an appropriate land use taking into account current or prospective uses of the land.

Conclusion and recommendation

  1. [45]
    In deciding what recommendation to make, I must weigh the various factors that I must take into account, by bringing my mind to bear[37] upon the “salient facts that give shape and substance to the matter[38] and considering how all the relevant factors weigh in the balance.[39]
  1. [46]
    There has been a lengthy delay in the progress of this application, and Mr Hoffman has proved unresponsive to contact by regulators in the past. However, he has explained the circumstances for that and, in recent years, Mr Hoffman has engaged a tenement agent to assist him to attend to his regulatory requirements. Further, there is no evidence that Mr Hoffman has failed to comply with any condition intended to minimise adverse environmental impacts.
  1. [47]
    There is limited information about mineralisation, but gold mining is an established activity in this region. Mr Hoffman appears to have the technical and financial capabilities to conduct a mine of this nature. He holds two other leases on the property, which were recently renewed. Mr Hoffman has an operational partner, an established camp and the necessary plant and equipment to develop and operate the mine.
  1. [48]
    The mine, and access to it, may affect the landowners’ plans to develop their property for grazing purposes. Mr and Mrs Hatfield did not participate in the hearing and, as a result, there is no evidence before the Court on the topic. Their objection is not specific enough for the Court to draw any conclusion about the actual impact on their current or proposed activities.
  1. [49]
    There is no public infrastructure on the lease area, there are no mining tenure holders or applicants within the lease area, and no other reason has been shown for refusing the application.
  1. [50]
    Weighing the relevant factors in the balance, I consider the evidence before the Court favours the grant of the lease. As Mr Hoffman does not intend to establish a camp on ML 20624, I recommend the grant does not include that purpose.

Order:

I recommend to the Minister for Natural Resources, Mines and Energy, as the Minister responsible for the Mineral Resources Act 1989, that ML 20624 be granted for the purposes applied for, except for living quarters/camp.

FY KINGHAM

PRESIDENT OF THE LAND COURT

Footnotes

[1]See Practice Direction No 4 of 2018 – Procedure for Mining Objection Hearings, 30 April 2018.

[2]MRA s 268(3).

[3]MRA s 269(4)(a).

[4]MRA s 245(1)(a), as in force on 1 July 2009.

[5]I understand GHPL to be the acronym for a grazing homestead perpetual lease.

[6]MRA s 252A(3)(a).

[7]MRA s 392.

[8]MRA s 252A.

[9]Ex 13.

[10]Ex 8.

[11]MRA s 252(1).

[12]MRA s 269(4)(b).

[13]Ex 12.

[14]Queensland Globe < https://qldglobe.information.qld.gov.au/>.

[15]MRA s 269(4)(c).

[16]Affidavit of Mr Hoffman, filed on 20 November 2019.

[17]MRA s 252, as in force on 1 July 2009.

[18]MRA s 252A, as in force on 1 July 2009.

[19]MRA s 252B, as in force on 1 July 2009.

[20]MRA s 269(4)(d).

[21]MRA s 269(4)(e).

[22]MRA s 269(4)(f).

[23]MRA s 269(4)(g).

[24]Ex 1, p 3.

[25]MRA s 269(4)(h).

[26]MRA s 269(4)(i).

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

[28]Biosecurity Act 2014 s 23.

[29]Ex 11.

[30]MRA s 269(4)(k).

[31]MRA s 269(4)(l).

[32]Ex 7.

[33]MRA s 279.

[34]MRA s 269(4)(m).

[35]Ex 10.

[36]Applicant’s submission in response to the objection, filed on 9 August 2019.

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

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

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

Close

Editorial Notes

  • Published Case Name:

    Hoffman v Hatfield

  • Shortened Case Name:

    Hoffman v Hatfield

  • MNC:

    [2019] QLC 48

  • Court:

    QLC

  • Judge(s):

    Kingham P

  • Date:

    19 Dec 2019

Appeal Status

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

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