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  4. Thalanga Copper Mines Pty Ltd v Chief Executive, Department of Environment and Science - [2021] QLC 21

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Thalanga Copper Mines Pty Ltd v Chief Executive, Department of Environment and Science[2021] QLC 21

Thalanga Copper Mines Pty Ltd v Chief Executive, Department of Environment and Science[2021] QLC 21

LAND COURT OF QUEENSLAND

CITATION:

Thalanga Copper Mines Pty Ltd & Anor v Chief Executive, Department of Environment and Science [2021] QLC 21

PARTIES:

Thalanga Copper Mines Pty Ltd

ACN 004 797 335

(appellant)

BML Holdings Pty Ltd

ACN 009 021 827

(appellant)

v

Chief Executive, Department of Environment and Science

(respondent)

FILE NO:

EPA038-19 (EPML00550413)

PROCEEDING:

Appeal against internal review decision under the Environmental Protection Act 1994

DELIVERED ON:

29 June 2021

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 8 June 2021

HEARD AT:

Heard on the papers

PRESIDENT:

FY Kingham

ORDERS:

  1. The appeal is allowed.
  2. The decision of the Respondent dated 6 February 2019, confirming the decision of the Respondent dated 8 January 2019, that the required amount of financial assurance for environmental authority EPML00550413 under the plan of operations submitted 8 November 2017 is $11,156,826 is set aside, and substituted for the following decision:
    1. a.
      the required amount of financial assurance for environmental authority EPML00550413 under the plan of operations submitted 8 November 2017 is $6,237,474 excluding GST; and
    2. b.
      the required financial assurance is to be paid:
    1. i.
      by a date to be determined by the Scheme Manager under the Mineral and Energy Resources (Financial Provisioning) Act 2018; and
    2. ii.
      in the form required by the Scheme Manager under the Mineral and Energy Resources (Financial Provisioning) Act 2018.
  3. The parties bear their own costs of the appeal.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – ENVIRONMENTAL PROTECTION LEGISLATION – where parties resolved all grounds of appeal relying on expert reports prepared during Court Managed Expert Evidence – where a guideline states an approved calculation methodology and provides a financial assurance calculator – where the parties agreed the calculator and third-party quotes should be used to calculate the amount – where the Court found that relying on the calculator and third-party quotes is appropriate – where parties agreed on the items to be included in the calculator – where the third-party quotes met the guideline requirements – where parties agreed the correct amount for the financial assurance was $6,237,474 – where the Court allowed the appeal and made the orders proposed by the parties

Environmental Protection Act 1994 (as at 1 April 2019) s 295(3), s 295(4), s 527, s 528, s 530, s 530(2), s 530(4)

Land Court Act 2000 s 5(1)

Land Court Rules 2000 s 44(1)

Mineral and Energy Resources (Financial Provisioning) Act 2018

Department of Environment and Science, Guideline ESR/2015/1758 Financial assurance under the Environmental Protection Act 1994 (Version 3.01, 2016)

Century Mining Limited v Department of Environment and Science [2021] QLC 3, cited

MRV Metals Pty Ltd v Chief Executive, Department of Environment and Science [2020] QLC 9, cited

MRV Metals Pty Ltd v Chief Executive, Department of Environment and Science (No 2) [2021] QLC 14, cited

APPEARANCES:

Not applicable

Background

  1. [1]
    The parties have agreed on orders on an appeal against a financial assurance decision for a mine known as the Highway Reward Project. In effect, the orders substitute a new decision for the one under appeal.
  1. [2]
    This is an appeal under the Environmental Protection Act 1994 as at 1 April 2019. In MRV Metals Pty Ltd v Chief Executive, Department of Environment and Science (No 2),[1] I considered the nature of the appeal and the Court’s powers to make consent orders. That is not controversial in this appeal, and I have applied the same findings on the law to this appeal.[2]
  1. [3]
    As this Court stands in the shoes of the decision maker in deciding the appeal,[3] I must be satisfied the proposed decision complies with regulatory requirements. Particularly, that the decision complies with the relevant guideline, and the amount of the financial assurance does not exceed the likely costs of rehabilitating environmental harm caused by the mining activity.
  1. [4]
    Thalanga Copper Mines Pty Ltd (Thalanga) and BML Holdings Pty hold an environmental authority for activities on 4 mining leases near Charters Towers, known as the Highway Reward Project. The mine commenced as a small-scale gold mine in the 1980s, progressing to open-cut copper mining between 1997 and 2002, and underground operations between 2002 and 2005.
  1. [5]
    The project has been in care and maintenance since June 2005. Thalanga submitted a Plan of Operations for the period from 30 November 2017 to 30 November 2022 in which it estimated a financial assurance amount of $5,129,803. It revised that figure, as of 3 December 2018, to $3,039,215.78.
  1. [6]
    DES decided the financial assurance amount was $11,156,826, a decision it affirmed on internal review. The parties now agree the correct amount for the financial assurance is $6,237,474.
  1. [7]
    Thalanga raised 4 grounds of appeal. Ground 1 alleged that the amount decided by DES exceeded the legislative cap. That is, that it exceeded the likely costs of rehabilitation. This relied on positive findings on other grounds of appeal, which have since been resolved by agreement.
  1. [8]
    Grounds 2 and 3 involved disputes about the cost of rehabilitating waste rock dumps.
  1. [9]
    In deciding the amount of the financial assurance, DES, and therefore this Court, must have regard to any criteria stated in a guideline made by the chief executive and prescribed under a regulation.[4] DES has published a Financial Assurance Guideline which, amongst other things, states an approved calculation methodology and provides a financial assurance calculator.[5] The calculator contains default cost rates for actions taken to rehabilitate various items or types of disturbance, including to cap waste rock dumps.
  1. [10]
    DES based its calculations on capping the entire 133 ha area of the waste rock dumps. Thalanga said only 22.25 ha needed to be capped.
  1. [11]
    A financial assurance decision may be influenced by a several considerations,[6] including site specific reports. In this case, the parties engaged experts to advise on the most appropriate way to remediate the waste rock dumps. Under the Court Managed Expert Evidence process,[7] the experts produced two joint expert reports.
  1. [12]
    The experts agreed 58 ha of waste rock dumps would have to be capped and that further rehabilitation would require:
  1. the steps outlined and costed in section 6 of the Plan of Operations;
  1. a well-planned site investigation (to determine the nature and extent of further revegetation and strategic earthworks);
  1. additional quality assurance/quality control of ongoing works; and
  1. continued vegetation success monitoring, care and maintenance and other activities as proposed in the Plan of Operations and in compliance with the EA.
  1. [13]
    After considering the expert reports,[8] the parties agreed on the scope of works to achieve the key outcomes of the reports.[9] Thalanga obtained 3 third-party quotes for the scope of works, and also for remediating some boreholes, another issue that had arisen during the proceedings.[10]
  1. [14]
    DES accepts the third-party quotes meet the requirements of the guideline.[11] The agreed amount for financial assurance uses both the third-party quotes and, for other items, the rates specified in the calculator.[12]
  1. [15]
    Ground 4 related to the likely costs of removing a shed which the landowner wishes to retain. Those costs have now been excluded from the calculation.
  1. [16]
    The proposed decision complies with relevant regulatory requirements, including the guideline, and the agreed amount does not exceed the likely costs of rehabilitation on this mine. I make the orders proposed by consent.

Orders:

  1. The appeal is allowed.
  1. The decision of the Respondent dated 6 February 2019, confirming the decision of the Respondent dated 8 January 2019, that the required amount of financial assurance for environmental authority EPML00550413 under the plan of operations submitted 8 November 2017 is $11,156,826 is set aside, and substituted for the following decision:
  1. a.
    the required amount of financial assurance for environmental authority EPML00550413 under the plan of operations submitted 8 November 2017 is $6,237,474 excluding GST; and
  2. b.
    the required financial assurance is to be paid:
  1. i.
    by a date to be determined by the Scheme Manager under the Mineral and Energy Resources (Financial Provisioning) Act 2018; and
  2. ii.
    in the form required by the Scheme Manager under the Mineral and Energy Resources (Financial Provisioning) Act 2018.
  1. The parties bear their own costs of the appeal.

Footnotes

[1] [2021] QLC 14.

[2] Ibid.

[3] Ibid at [3].

[4] Environmental Protection Act 1994 (EPA) s 295(3).

[5] Department of Environment and Science, Guideline ESR/2015/1758 Financial assurance under the Environmental Protection Act 1994 (Version 3.01, 2016) 5.

[6] Century Mining Limited v Department of Environment and Science [2021] QLC 3 at [18]; MRV Metals Pty Ltd v Chief Executive, Department of Environment and Science (No 2) [2021] QLC 14 at [12].

[7] Land Court of Queensland Practice Direction 6 of 2020.

[8] Statement of Agreed Facts filed 28 May 2021 at [42].

[9] Statement of Agreed Facts filed 28 May 2021 at [42].

[10] Statement of Agreed Facts filed 28 May 2021 at [23]; Statement of Agreed Facts filed 28 May 2021 at Annexures A–C; Affidavit of P W Stokes filed 8 June 2021 at [10]–[12].

[11] Department of Environment and Science, Guideline ESR/2015/1758 Financial assurance under the Environmental Protection Act 1994 (Version 3.01, 2016) 21–23.

[12] Statement of Agreed Facts filed 28 May 2021 at [49].

Close

Editorial Notes

  • Published Case Name:

    Thalanga Copper Mines Pty Ltd & Anor v Chief Executive, Department of Environment and Science

  • Shortened Case Name:

    Thalanga Copper Mines Pty Ltd v Chief Executive, Department of Environment and Science

  • MNC:

    [2021] QLC 21

  • Court:

    QLC

  • Judge(s):

    FY Kingham

  • Date:

    29 Jun 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Century Mining Limited v Department of Environment and Science [2021] QLC 3
2 citations
Jump To
Cite 1 - [2021] QLC 3
Cite 2 - [2021] QLC 3
MRV Metals Pty Ltd v Chief Executive, Department of Environment and Science [2020] QLC 9
1 citation
Jump To
Cite 1 - [2020] QLC 9
MRV Metals Pty Ltd v Chief Executive, Department of Environment and Science (No 2) [2021] QLC 14
4 citations
Jump To
Cite 1 - [2021] QLC 14
Cite 2 - [2021] QLC 14
Cite 3 - [2021] QLC 14
Cite 4 - [2021] QLC 14

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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