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  4. Hannigan and Associates Pty Ltd & Anor v Da Cunha & Anor - [2022] QLC 14

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Hannigan and Associates Pty Ltd & Anor v Da Cunha & Anor[2022] QLC 14

Hannigan and Associates Pty Ltd & Anor v Da Cunha & Anor[2022] QLC 14

LAND COURT OF QUEENSLAND

CITATION:

Hannigan and Associates Pty Ltd & Anor v Da Cunha & Anor [2022] QLC 14

PARTIES:

Hannigan and Associates Pty Ltd 

(applicant) 

Blackwood Coal Pty Ltd

(applicant) 

v

Kayley Da Cunha 

(objector)

Scott Beattie

(objector)

FILE NO:

MRA064-19

PROCEEDING:

Hearing of application for mining lease and objections

DELIVERED ON:

28 September 2022

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 1 September 2022

HEARD AT:

On the papers 

MEMBER:

JR McNamara

ORDERS:

I recommend to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989, that MLA 700040 be granted subject to the following conditions:

  1. 1.That the consent of the Chief Executive of the Department of Environment and Science to the grant of ML 700040 over the surface area of Blair Athol State Forest reserve be obtained prior to grant; and  
  2. 2.That the approval of the federal Minister for the Environment and Water for a controlled action pursuant to s 133 of theEnvironment Protection and Biodiversity Conservation Act 1999 (Cth) be obtained prior to grant.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the applicant applied for multiple mining leases to mine coal – where the mining lease applied for formed part of a greater mining project comprising other mining leases – where the mining lease applied for was only for infrastructure associated with the greater mining project – where the majority of the objections to the grant of the lease had been withdrawn – where the remaining objectors to the mining lease did not elect to be active parties in the hearing – whether mitigation strategies sufficiently address local business and fossicking activities – whether mitigation strategies sufficiently minimised risk to fauna – whether there was sufficient community consultation

ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the Court considered the standard criteria in s 269(4) of the Mineral Resources Act 1989 – where the lease area applied for is not mineralised and will only be used for associated infrastructure – where the size and shape of the surface area is appropriate – where the length of the term of the lease applied for is to be decided by the Minister – where the sufficiency of the financial and technical capabilities of the applicants is to be considered by the Minister – where deciding whether to grant all of the leases that comprise the project – where the operations to be carried out under the proposed mining lease conform with sound land use management – where the applicants’ approach to avoid, minimise or mitigate adverse impacts mean the public right and interest will not be prejudiced – where the Court recommended that the consent of the owner of State Forest to the grant of the lease should be obtained prior to grant – where the Court recommended that the approval of a controlled action pursuant to s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) be obtained prior to grant

HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the Land Court has jurisdiction and a duty to consider human rights in the absence of submissions – where the human right to property would not be prejudiced – where the right to privacy would not be prejudiced – where cultural rights would not be prejudiced

Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 130, s 133

Fossicking Act 1994 (Qld) s 28, s 43, s 44

Human Rights Act 2019 s 24, s 25, s 28, s 58

Mineral Resources Act 1989 s 234, s 250, s 252, s 268, s 269, s 271, s 271A, s 279, sch 2

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

Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22, applied

Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473, cited

Tickner v Chapman (1995) 57 FCR 451, cited

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, cited

APPEARANCES:

Not applicable

  1. [1]
    Hannigan and Associates Pty Ltd and Blackwood Coal Pty Ltd (the applicants) are both wholly owned subsidiaries of Huaxin Energy (Aust) Pty Ltd (Huaxin).  In 2014 Huaxin (then named Cuesta Coal) applied for four mining leases, and an associated environmental authority (Associated EA). Iterations of the Associated EA led to the current EA being issued on 14 July 2020.[1]
  2. [2]
    Together the leases comprise the Moorlands Project, an open cut mine proposed for the Bowen Basin.  Objections were lodged to these original mining lease applications and the associated EA. Land Court proceedings were commenced, a settlement agreement reached, and the objections resolved.
  3. [3]
    There were changes to the mining lease applications for various reasons in 2018 which resulted in the abandonment of one lease application, and two new lease applications, including mining lease application 700040 (ML 700040) known as Moorlands South Replacement. The objections the subject of this inquiry concern only ML 700040.
  4. [4]
    Because compensation in relation to the other mining lease applications which constitute the Moorlands Project has not yet been agreed, or determined by the Land Court, none of the leases for the project have yet been granted.
  5. [5]
    Once compensation is determined by the Land Court or agreed between the parties, those other mining lease applications can be decided, subject to any other necessary procedural steps.
  6. [6]
    As a result of this application to the Land Court, the recommendation of the Land Court in relation to one of the mining lease applications comprising the project precedes the Minister’s consideration of the remaining leases which must be decided using the same criteria.[2]
  7. [7]
    Each of the proposed leases will serve a different purpose for the Moorlands Project.  They may not be divisible. That is, although I have no submissions to this effect, the viability of the project might be challenged if one or more of the leases were not granted.
  8. [8]
    ML 700040, the lease the subject of this application, is intended to provide for a rail loop, haul road, and associated infrastructure.[3] There will be no mining on ML 700040.  It may be that the mining lease applications where mining will in fact occur might include more relevant information concerning matters such as mineralisation, technical capability, and the appropriateness of the proposed lease term. For that reason, when considering the statutory criteria set out in s 269(4) of the MRA, my attention is given, where relevant, to the project as a whole.

The objections

  1. [9]
    Nine objections were lodged against the grant of ML 700040, including the joint objection of Ms Da Cunha and Mr Beattie (the remaining objectors).  All objectors, other than the remaining objectors, withdrew from proceedings.
  2. [10]
    In submissions, the applicants say that the objections of the active objectors[4] largely fell within the following categories:
  1. 1.Objections relating to wildlife and the need for wildlife corridors in the area of the Moorlands Project;
  2. 2.Objections relating to the impact of ML 700040 would have on prospecting on the McMasters General Permission Area (GPA) (prospector objectors”). ML 700040 covers part of the area of the McMasters GPA and that area will no longer be available for prospecting following the grant of ML 700040; and
  3. 3.Objections relating to the extent of community consultation.
  1. [11]
    Mediation had occurred and a settlement agreement which included a number of ‘best endeavours’ proposals to address these issues was reached and seemingly explains the objectors’ withdrawal.
  2. [12]
    The remaining objectors were not active parties and took no part in proceedings in the Land Court.[5] Nevertheless, I must consider their objection when deciding what recommendation to make on the applicants’ applications.[6] There are two grounds of objection identified:
  1. 1.The impact that ML 700040 will have on the existing McMaster’s GPA which they say benefits local business; and
  2. 2.The impact ML 700040 will have on wildlife in the area, having witnessed a large flock of emus, ducks and a dingo in the Blair Athol State Forest.

Impact on the McMasters GPA and local business

  1. [13]
    The concerns the prospector objectors expressed about the loss of part of the McMasters GPA and possible wildlife impacts were considered in the development of the settlement agreement. In relation to access to the existing McMasters GPA the applicants say:
  1. “a)Prospectors will continue to be able to use those areas of the McMasters GPA which are outside the area of the Moorlands Project; and
  2. b)Huaxin, as the owner of rolling term lease TL 212632 located on the neighbouring property Lot 2 on Crown Plan RU 38, has given permission under section 28 of the Fossicking Act 1994 for a new GPA, known as the Brigalow GPA, over an area of 506.8ha. DES has agreed in principle to the declaration of this Brigalow GPA, and Huaxin is prepared to comply with DES’s requirements for the Brigalow GPA. The Brigalow GPA will create new opportunities for prospectors, in part because the previous owner of TL 212632 did not give permission for the Brigalow GPA to be declared over the TL. We respectfully submit that this will contribute to the local Clermont economy.”[7]Unless an area is declared (by regulation), a designated fossicking area, permission of a landowner is required to fossick on occupied land.[8]
  1. [15]
    I understand the submission of the applicants to mean that under s 28 of the Fossicking Act 1994, a general permission has been given by Huaxin for public fossicking activities over an area of 506.8ha on Lot 2 on CP RU 38, which is owned by Huaxin.  It is not clear if the permission extends to camping,[9] however the context would suggest that it does.
  2. [16]
    The submission goes on to say that the Department of Environment and Science (DES) “has agreed to a declaration of this Brigalow GPA”.
  3. [17]
    Pursuant to s 44 of the Fossicking Act 1994, if the Chief Executive is satisfied particular land should be declared a fossicking area, the chief executive must prepare a proposal[10] which describes the land.  Written notice of the proposal is advertised and is given to owners, the applicants and holders of resource authorities in the area, and the local government, and the area declared by regulation.[11]
  4. [18]
    In saying that DES has “agreed to a declaration” it is not clear if that means DES has agreed to commence the process, or the process leading to a regulation has been agreed.  However, the key decision maker would appear to be the Chief Executive.
  5. [19]
    In relation to the impact on local business the applicants say that the Moorlands Project through employment and activity will benefit the domestic economy.  If the Brigalow GPA is declared, the business and activity of the fossicking community will continue.

Impact on wildlife

  1. [20]
    In response to the remaining objectors’ wildlife objection the applicants say it is similar to the concerns of the active objectors but limited to the area of the Blair Athol State Forest, and not specifically the area of ML 700040; that the impact on wildlife has been considered by DES as part of the grant of the associated Environmental Authority (EA); that the mine plan and layout has been designed to avoid disturbance to significant plants, animals and ecosystems; that any disturbance will be brief; and that minimisation and management strategies will be established.[12] Further, they say the Moorlands Project is a controlled action under the Environmental Protection and Biosecurity Conservation Act 1999 (Cth) (EPBCA).  Accordingly, the federal Minister for the Environment must approve or refuse the project under ss 130(1) and 133 of the EPBCA.  

The statutory criteria

  1. [21]
    When making a recommendation to the Minister I must take into account the statutory criteria specified by s 269(4) of the MRA.  The matters raised by the objectors are conveniently dealt with under those criteria. Additionally, the Human Rights Act 2019 (Qld) (HRA) commenced 1 January 2020, after the objections were lodged to the grant of ML 700040.  Even though there is no HRA based objection before me I must nevertheless properly consider any engaged human rights and not make a decision that is not compatible with human rights.[13]
  2. [22]
    The applicants filed submissions addressing the grounds of objections and the statutory criteria found in the MRA, and the HRA.[14]

Have the applicants complied with the provisions of the MRA?

  1. [23]
    The applicants provided evidence of compliance with the requirements for an application for a mining lease prescribed by s 245 of the MRA. A delegate of the Chief Executive of the then Department of Natural Resources, Mines and Energy (DNRME) issued a mining lease notice for ML 700040 on 27 February 2019.[15] A precondition to the notice being issued is satisfaction of compliance with the requirements of the MRA for the application.[16]
  2. [24]
    The resolution of compensation with affected landholders is a precondition to the grant of a lease. Compensation is not yet agreed or determined with all landholders.[17] It is not for the Land Court to determine compensation in these proceedings, nor is it necessary for a condition of grant in those terms to be recommended.
  3. [25]
    I am satisfied that in respect of this mining lease application there has been compliance with the provisions of the MRA.

Is the area applied for mineralised, or are the other purposes for which ML 700040 is sought appropriate?

  1. [26]
    This mining lease application is part of a planned open-cut mine known as the Moorlands Project. A mining lease may be granted for purposes associated with mining.[18] The applicants state in their material that ML 700040 is to be used to construct a rail loop, haul road and associated infrastructure that will be required for mining operations on other mining leases that form part of the Project.[19] This is reflected in the resource authority public report. Accordingly, the applicants do not assert that the area of ML 700040 itself is mineralised.[20]
  2. [27]
    As for the broader Moorlands Project, the applicants state that a scoping study was prepared in November 2013, which confirmed the potential for a viable open cut thermal coal project.[21] Further modelling was completed in 2017 by the applicants’ Senior Geologist.[22] Both the scoping study and the further modelling confirmed that the area subject to the mining lease applications had a Joint Ore Reserves Committee (JORC) resource of 378 Mt.
  3. [28]
    I am satisfied that construction of a rail loop, haul road and appropriate infrastructure, on the area applied for, to support the Moorlands Project on adjacent mining leases held by the applicants, is an appropriate use.

If the area is mineralised, will there be an acceptable level of development and utilisation of the mineral resources?

  1. [29]
    The applicants do not assert that the area is mineralised. The area applied for is to be used to construct a rail loop, haul road and associated infrastructure that will be required for mining operations on other mining leases that form part of the Project.

Is the area an appropriate size and shape?

  1. [30]
    The applicants had previously lodged an application for ML 70527, known as Moorlands South. The applicants state that that application was withdrawn, and the application for ML 700040 was lodged in its place to “address landholder concerns and to ensure compliance with the MRA by amending the application boundary”.[23] ML 700040 has a smaller footprint than ML 70527, and was selected by the applicants by:

“Taking into account the proposed layout of infrastructure, access to power and water, ease of access and manoeuvrability within the property and local topography, the background land tenure boundaries and inclusion of buffer zones for the protection of significant environmental values.”[24]

  1. [31]
    ML 700040, along with the other lease applications that form the Moorlands Project, is also of a size and shape to enable the applicants to meet their obligations in accordance with a settlement agreement that was entered in to with the active objectors.[25]
  2. [32]
    I am satisfied that the land in respect of which ML 700040 is sought is of an appropriate size and shape in relation to the activities proposed to be carried out under the lease.

Is the term appropriate?

  1. [33]
    Under the MRA there is no prescribed limit to the term of a mining lease. The term of a mining lease is at the discretion of the Minister who, pursuant to s 271(b), s 284(1) and s 286A(1)(c) of the MRA must consider if the term nominated for the mining lease is appropriate.
  1. [34]
    The former DNRME adopted an operational policy for determining the term of a mining lease.[26] The policy 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.
  2. [35]
    In the ‘Statement justifying the term sought for the Moorlands South Replacement MLA’ the applicants say:

“Huaxin Energy originally sought a 35 year term for each of the Moorlands Project mining lease applications. After the Moorlands Project MLAs were lodged, the Department of Natural Resources Mines and Energy released its Operational Policy for Deciding the term of a mining lease. In light of this policy, Huaxin Energy accepts a 25 year term for the Moorlands Project MLAs.”[27]

  1. [36]
    As to why a 25 year term is sought, the applicants say it is to provide time for construction of mining facilities, extraction of the Moorlands Project coal resource, allowance for production contingencies and time for rehabilitation controls and final land use.  The applicants then outline a Development Plan Statement[28] as follows:
  1. 1.The first 18 to 24 months would be spent constructing the necessary infrastructure for the mine;
  2. 2.Mining will commence once the necessary infrastructure is completed and the first coal production is anticipated between 24 and 36 months after construction commences;
  3. 3.Mining operations will continue for approximately 20 years, with progressive rehabilitation occurring throughout; and
  4. 4.The last 2 to 3 years will be spent finalising rehabilitation and final landform.[29]
  1. [37]
    To say that the applicant will “accept a 25 year term” is not a statement that demonstrates why a 25 year term is appropriate.
  2. [38]
    The policy provides examples of information an application may include such as:
  • A mining operations plan that includes a mining program or life of mine schedule that supports the ML term. This may include timeframes for proposed development of the mine and related infrastructure, the timing and rate of production, and rehabilitation plans.
  • Resource and reserve information and feasibility studies that clearly demonstrate an economically robust and sustainable mining operation. Reports should be prepared by or under the direction of and signed by a qualified person i.e. a person who is a member of a professional society for earth scientists or mineral engineers, or has other appropriate qualifications.
  • Negotiated sale/supply contracts that are dependent on a guaranteed supply of mineral for at least the term nominated by the holder.
  • Financial capability information and statements which demonstrate that the applicant and/or related third party investors, lenders or joint venture partners have the financial capability to carry out development, operations and rehabilitation for the nominated term.
  • Information to support a claim that a specific ML term is required in order to gain a return on pre-mine investment. For example, a timeline used to demonstrate how the applicant would obtain a return on their investment over the course of the nominated term.
  • Details of any supporting infrastructure, such as housing, roads, rail lines, ports and other regional projects, that is required for the ML and the cost of which will need to be amortised over the nominated ML term.
  1. [39]
    Significantly the policy also says:

“Without limiting the Minister’s discretion under the MRA, the Minister will generally not approve a ML term that exceeds the average historical term, unless the applicant establishes that there are exceptional reasons for the nominated term. The onus is on the applicant to submit sufficient information in support of their application to allow the Minister to make a decision under the MRA. 

As the historical average will move over-time, and in order to provide clarity to applicants, a guidance benchmark of 25 years (which is five years in excess of the historic average) is provided as an indication of when additional evidence of exceptional circumstances will be required. Every application will however be dealt with on a case-by-case basis and on its own merits.”[30]

  1. [40]
    The proposed term of 25 years is, according to the policy, in excess of the average historical term. The program of works while broadly addressing the overall development and operation of the project as a whole would not on its own appear to qualify as “additional evidence of exceptional circumstances”.[31]
  2. [41]
    To the extent it is relevant, none of the other mining lease applications that would constitute the Moorlands Project have yet been granted.  There is nothing in the evidence to inform me whether the Minister has formed a view as to the appropriate term of those other leases should they be granted.
  3. [42]
    Notwithstanding the proposed timeline found in the applicants’ Development Plan Statement,[32] I am not in a position to determine whether the term sought is or is not appropriate. Absent information to suggest otherwise, it would seem reasonable that the term of ML 700040 be for a term consistent with the term/s of the other mining leases that would constitute the Moorlands Project. This criterion is one of many, and one I take into account in forming my recommendation.  

Do the applicants have the necessary financial and technical capabilities?

  1. [43]
    All shares of Hannigan and Associates Pty Ltd are owned by West Bowen Coal Pty Ltd, which is a wholly owned subsidiary of Huaxin Energy (Aust) Pty Ltd. Shares in Blackwood Coal Pty Ltd are wholly held by Huaxin. Huaxin is owned by Wintime (Australia) Mining Pty Ltd. That company is a wholly owned subsidiary of Evertime International Industrial Limited, the ultimate holding company of which is Wintime Energy Co Ltd (Wintime Energy).
  2. [44]
    Wintime Energy is a publicly listed company in China and is described in the applicants’ material as an “integrated energy, logistics and electricity business”.[33] As part of the application process, the applicants filed a Statement of Financial Capability alongside its application for ML 700040. This Statement purports to confirm that Huaxin, through the support of Wintime Energy, has sufficient funds to support the technical and development commitments required for the Moorlands Project to operate.
  3. [45]
    The Wintime Energy financial information indicates a significant net asset position for the year ending 31 December 2021.  While that is so, the financial information does not project the expenditure commitment and timeframe to see the Moorlands Project developed.  Noting that Wintime Energy and its affiliates operate “approximately” 33 coal mines in China,[34] and the Huaxin Group has “coal exploration and development”[35] projects held through various companies including 6 ‘Moorlands’ exploration permits for coal (EPC), and 15 other EPCs in the Eastern Galilee, West Emerald, East Wandoan, Montrose and Callide – there are other possibly significant financial burdens on the parent company.
  4. [46]
    The applicants acknowledge and accept that they do not have a history of successful coal mining operations in Queensland,[36] but say they have a history holding exploration interests. Submissions in support of technical capability point to the extensive experience of the holding company operating open cut coal mines in China.   
  5. [47]
    The Technical Capability Statement[37] submitted with the application for ML 700040 says in reference to Huaxin and its subsidiary companies’ EPCs in Queensland that it has completed “around” 196 drill hole infill exploration programs, with 37 of these being core holes, and has identified a combined total JORC Resources of 786.6Mt, including 378Mt at the Moorlands Project.  The Statement goes on to provide the qualification and experience of Huaxin’s 3-person management team and a consultant tenement manager.
  6. [48]
    The Technical Capability Statement also says that Wintime Energy and its affiliated companies have mined approximately 58Mt of run-of-mine coal, resulting in approximately 40Mt of product coal, in their Chinese operations.
  7. [49]
    Experience and capability are not necessarily the same thing.  That is, operating coal mines elsewhere in the absence of information of comparability does not necessarily lead to a conclusion of technical capability. The qualification and experience of a management team does not guarantee technical capability.
  8. [50]
    In their submissions it is said that the applicants also intend to engage a contract mining services provider with appropriate expertise and technical resources to develop the Moorlands Project.[38]
  9. [51]
    It may be that the applicants, through adequate resourcing and the engagement of a mining services provider can demonstrate that they will have sufficient technical aptitude to effectively develop the Moorlands leases, including ML700040. The necessary financial and technical of the applicants will be a key criteria for consideration by the Minister when determining whether to grant all the leases that would constitute the Moorlands Project.

Has the applicants’ past performance been satisfactory?

  1. [52]
    The applicants, by their own admission, do not have extensive experience in managing successful coal mine operations, although they do have extensive exploration interests in Queensland.[39] They also say that Wintime Energy and its affiliates own and operate “approximately” 33 coal mines across China.[40]
  2. [53]
    Several companies affiliated with Wintime Energy, including Blackwood Coal, have been issued show cause notices by DNRME on 11 August 2017 for failing to lodge annual reports with respect to EPCs 1738, 2008 and 2689.[41] The reports were eventually filed. Blackwood Coal was also issued with a penalty infringement notice under the Environmental Protection Act 1994 (EPA) for failing to comply with the rehabilitation conditions in their environmental authority for EPC 1738, which was later rectified.[42] Finally, Blackwood Coal was issued a show cause notice as to why EPC 1802 should be renewed. After making submissions to DNRME, the show cause notice was resolved, and the renewal application granted on 1 October 2019.[43]
  3. [54]
    In their submissions, the applicants state that they have taken steps after each notice to ensure that such issues do not arise again. For example, Huaxin has now engaged a tenement administrator to ensure, among other things, that reporting obligations are met in a timely fashion.[44]

Is there any disadvantage to existing holders of or applicants for exploration permits?

  1. [55]
    There are two granted and one applied for exploration permits for minerals (EPMs) that overlap with ML 700040:
  1. 1.EPM 27649, held by Gerald David George Skilton, which has an overlap area of 0.79% with ML 700040;
  2. 2.EPM 25162, held by Queensland Ores Holdings Pty Ltd, which has an overlap area of 0.06% with ML 700040; and
  3. 3.EPM 28445, an application for which was lodged by Daniel Mark Herlaar, which has an area of overlap of 49.3% with ML 700040. Mr Herlaar holds a 50% share of this application, with the other 50% held by Antoni Brinner.
  1. [56]
    With respect to EPM 27649, the applicants say that the small area of overlap renders any disadvantage to Mr Skilton negligible.[45] I agree. Regarding EPM 25162, Queensland Ores Holdings provided written consent to the grant of ML 700040 on 8 March 2019. Finally, with respect to EPM 28445, the applicants note that pursuant to s132(1) of the MRA the overlap area is taken to be excluded from the area of EPM 28455. As the application for this EPM was made on 25 May 2022 it is expected that Messrs Herlaar and Brinner were aware of the potential grant of ML 70040. I think that is a reasonable conclusion.

Will the operations conform to sound land use management?

  1. [57]
    ML 700040 will be subject to an EA, and any conditions associated with a relevant approval under the EPBCA. The applicants also say that they intend to prepare an overall environmental management system across the Project, to ensure sound land use management. This system will itself be made up of a large number of individual management plans, such as traffic, water, and lighting.[46]

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

  1. [58]
    As mentioned above, there will be an EA attached to ML 700040, and any other conditions that might be attached from an approval under the EPBCA.
  2. [59]
    There were objections raised to the grant of ML 700040 on the grounds of concerns about possible impacts on wildlife, including emus and koalas. The remaining objectors identified the impact ML 700040 would have on wildlife in the area, having witnessed a large flock of Emus, ducks and a dingo in the Blair Athol State Forest.
  3. [60]
    As noted earlier, in response to the remaining objectors wildlife objection the applicants say it is similar to the concerns of the active objectors but limited to the area of the Blair Athol State Forest, and not specifically the area of ML 700040; that the impact on wildlife has been considered by DES as part of the grant of the associated EA; that the mine plan and layout has been designed to avoid disturbance to significant plants, animals and ecosystems; that any disturbance will be brief; and that minimisation and management strategies will be established.[47] Further, they say

the Moorlands Project is a controlled action under the EPBCA.  Accordingly, the federal Minister for the Environment must approve or refuse the project under ss 130(1) and 133 of the EPBCA.  

  1. [61]
    As part of the settlement agreement that has been reached between the applicants and the majority of the objectors, a koala survey was undertaken by Dr Bill Ellis of Ecoteam and Environmental and Scientific Services.[48] Dr Ellis subsequently produced a report and koala management plan in September 2020. The applicants say that they will endeavour to incorporate the koala management plan into the approvals regime for the Moorlands Project, including in any EPBCA approvals.[49]
  2. [62]
    I am satisfied that should the federal Minister for the Environment approve the Project, any adverse environmental impact will be addressed and managed through the amended EA, any EPBCA conditions that might be imposed, and compliance with the spirit and intent of the settlement agreement.

Will the public right and interest be prejudiced?

  1. [63]
    Concerns about a lack of public consultation between the applicants and the Clermont community were raised in some of the objections. Under the settlement agreement reached with the majority of the objectors, the applicants have released a public statement in a national newspaper outlining the progress of the Moorlands Project as at 13 January 2020.[50]
  2. [64]
    The applicants also agreed to undertake community consultation, once they were in a position to answer reasonable questions raised during the consultation.[51] No such consultation appears to have occurred.
  3. [65]
    The remaining objectors objected to the grant of ML 700040 on the basis of the public interest in the land, being the McMasters GPA, that will be affected and the consequential losses to local businesses.
  4. [66]
    The applicant says that the public right and interest raised in the objection will not be prejudiced by the grant of ML 700040 given Huaxin’s commitment to the new

Brigalow GPA which will make available an additional 506.8 ha of land for public fossicking activities.

  1. [67]
    Aside from addressing these community concerns, the applicants state that the Moorlands Project as a whole will financially benefit the domestic economy. The applicants estimate that an average of 250 workers will be employed during the construction of the Project’s infrastructure, and then an average of 150 employees will be working on mining operations.[52] Additionally, the applicants estimate that between $10-$14 million per annum will be paid in royalties to the State of Queensland while the mine is in operation.[53]
  2. [68]
    I am satisfied that any prejudice to public rights and interest has been considered and the Moorlands Project will provide economic benefit to the local area and to the State more broadly.

Has any good reason been shown for refusing the application?

  1. [69]
    The applicants submit that they are unaware of any other reason, apart from the objections, as to why the application for ML 700040 should be refused.

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

Blair Athol Station

  1. [70]
    ML 700040 crosses over part of Lot 18 on Survey Plan 285459, which forms part of Blair Athol Station, which is owned by the Burnett Group. The applicants say that Blair Athol Station is primarily used for dryland cultivation, the area affected by ML 700040 is timbered forest country, and the nearest building to ML 700040 on Blair Athol Station is approximately 2.5 km away.[54] The applicants submit that the affected parts of the Station are largely timbered country, and therefore good agricultural land will not be affected by granting ML 700040.

Marks property

  1. [71]
    ML 700040 also crosses over Lot A on Crown Plan DC 183, which is a term lease held by Charles Alfred Marks and Evon Joan Marks for grazing. The Marks did not object to the grant of ML 700040, and the applicants state in their submissions that compensation negotiations continue between the parties.[55]

Blair Athol State Forest

  1. [72]
    A State Forest is a reserve for the purposes of the MRA.[56] Consent of a reserve owner must be obtained before a mining lease application can be granted, however if consent cannot be obtained the applicants can apply to the Governor in Council to grant ML 700040 over the reserve.[57] For the purposes of the MRA, the owner of State Forest is defined as the Chief Executive of the department responsible for the administration of the Forestry Act 1959,[58] which is DES. The State Forest is managed by Queensland Parks and Wildlife Service (QPWS).
  2. [73]
    Part of ML 700040 runs over Lot 127 on FTY 1849, which forms part of Blair Athol State Forest. QPWS did not object to a grant of ML 700040.
  3. [74]
    In her affidavit, Ms Chong says that the Court should recommend that ML 700040 be granted subject to a condition that the applicants lodge with the Chief Executive written consent from DES, as the owner of the Blair Athol State Forest, to the grant of ML 700040 over the surface of the Blair Athol State Forest.[59] The applicants in their submissions say that negotiations are ongoing with respect to compensation with DES through QPWS.[60]
  1. [75]
    In the circumstances I am satisfied that a condition in the terms submitted is appropriate.

The Human Rights Act 2019

  1. [76]
    In their submissions, the applicants acknowledge the operation of the HRA. As noted by the applicants, the HRA commenced on 1 January 2020, after objections had been lodged to ML 700040. However, this Court, when exercising its administrative functions, is bound by s 58(1) of the HRA, and can therefore not act or make a decision in a way that is not compatible with human rights.[61]
  2. [77]
    As set out in Cement Australia, the steps that this Court will take in considering the application of s 58 of the HRA to mining lease objections is as follows;[62]
  1. 1.Engagement: which rights might the objector seek to invoke?
  2. 2.Limitation: how might it be alleged that the rights are limited?
  3. 3.Justification: if the rights are limited, is/are the limitation/s reasonable and demonstrably justified? Is the limitation in accordance with procedural requirements and not arbitrary? Is the limitation on the human rights proportionate to other competing private and public interests?
  4. 4.Proper consideration: even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged?
  5. 5.Inevitable infringement: Does a statutory provision or law prescribe a different decision?
  1. [78]
    The relevant rights to be considered are found in Part 2, Div 2 of the HRA.
  2. [79]
    The applicants consider the only potentially affected rights in this matter to be those found in ss 24, 25 and 28 of the HRA.

Arbitrary deprivation of property[63]

  1. [80]
    The applicants submit that the remaining objectors will not be arbitrarily deprived of their property, as they are not the holder or occupier of any lots which overlap ML 700040. All other affected landholders have either reached an agreement with the applicants or are currently being engaged with by the applicants to resolve compensation pursuant to the MRA.[64]

Right to privacy[65]

  1. [81]
    The applicants submit that there will be no interference with a person’s privacy, family, home or correspondence, as the remaining objectors do not own land or property that overlap with ML 700040.

Cultural rights[66]

  1. [82]
    The applicants have entered into a cultural heritage management agreement with the Clermont-Belyando Area Native Title Claim Group.[67] They also submit that, if necessary, they will negotiate a cultural heritage agreement with the claimants of the Jangga People #3 claim.[68]

Conclusion and recommendation

  1. [83]
    I must weigh the various factors that the Court must consider in making its recommendation.  I must bring my mind to bear upon the salient facts[69] that give shape and substance to the matter[70] and consider how all the relevant factors weigh in the balance.[71]
  2. [84]
    Although there is no evidence that the area of ML 700040 itself is mineralised, the purpose of the proposed mining lease is to provide the infrastructure to enable the product to access a rail corridor and in that regard its size and shape is appropriate. The term of the mining lease is a matter for the Minister, taking account of the operational policy and to complement the term/s of other leases that comprise the Moorlands Project.
  3. [85]
    There is no direct evidence of past performance of the applicants in operating a coal mining project in Queensland, but the applicants point to the extensive operations of the parent company elsewhere and state that they will engage a contract mining services provider with appropriate expertise and technical resources to develop the Moorlands Project. Any disadvantage to other explorers is either very minor or results from applications made subsequent to the mining lease application.  There would appear to be an acceptable level of development.
  4. [86]
    I have made some observations concerning the evidence of financial and technical capability of the applicants advanced in relation ML 700040. Whether the applicants do in fact have the necessary financial and technical capability to develop the project as a whole will be a matter for the Minister when deciding whether to grant all of the leases that comprise the Moorlands Project, not any one mining lease, and not ML 700040 in isolation.
  5. [87]
    I am satisfied the issues raised in the objections of the remaining objectors are addressed such that they do not present an obstacle to grant.
  6. [88]
    There are a number of steps that precede the possible grant of ML 700040 including approval under the EPBCA; agreement or a Land Court determination regarding compensation with all affected landholders; and consent from DES as owner of Blair Athol State Forest for MLA 70525, MLA 70426 and MLA 700040.
  7. [89]
    The applicants have said they would accept a condition being imposed on any recommendation by the Court requiring that the consent to the Moorlands Project MLAs over the surface area of the Blair Athol State Forest reserve be obtained before the grant of ML 700040.[72]
  8. [90]
    The applicants have also said they would accept a condition being imposed on any recommendation by the Court requiring that the EPBCA approval be obtained before the grant of ML 700040.[73]

Orders 

I recommend to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989, that MLA 700040 be granted subject to the following conditions:

  1. 1.That the consent of the Chief Executive of the Department of Environment and Science to the grant of ML 700040 over the surface area of Blair Athol State Forest reserve be obtained prior to grant; and
  2. 2.That the approval of the federal Minister for the Environment and Water for a controlled action pursuant to s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) be obtained prior to grant.

Footnotes

[1] Affidavit of M Chong filed 2 September 2022, [30].

[2] Mineral Resources Act 1989 ss 269(4), 271.

[3] Affidavit of M Chong filed 2 September 2022, [21].

[4] There were 9 objections lodged against the grant of the Lease. Of those, only 2 objectors elected to be active objectors. An active objector fully participates at all stages of a mining objection hearing – see Practice Direction 4 of 2018 – Procedure for Mining Objection Hearings.

[5] See Practice Direction 4 of 2018 – Procedure for Mining Objection Hearings.

[6] Mineral Resources Act 1989 s 268(3).

[7] Applicants’ submissions filed 2 September 2022, [33]; Affidavit of M Chong filed 2 September 2022, [54].

[8] Fossicking Act 1994 s 28(2).

[9] Ibid s 28(3).

[10] Ibid s 43.

[11] Ibid s 44.

[12] Affidavit of M Chong filed 2 September 2022, [55].

[13] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33 [90]; Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22 [49].

[14] Applicants’ submissions filed 2 September 2022; Affidavit of P Chu filed 2 September 2022; Affidavit of M Chong filed 2 September 2022.

[15] Affidavit of M Chong filed 2 September 2022, [59].

[16] Mineral Resources Act 1989 s 252.

[17] Ibid s 279; Affidavit of M Chong filed 2 September 2022, [60]

[18] Mineral Resources Act 1989 s 234(1).

[19] Affidavit of M Chong filed 2 September 2022, [62]-[63]. The applicant’s Development Plan Statement (exhibited to the affidavit of M Chong) also says the infrastructure may include power transmission lines, water pipelines, light vehicle access, conveyors, coal stockpiles, rail and offices.

[20] Ibid [61]-[62].

[21] Ibid [10].

[22] Ibid [11].

[23] Ibid [68(a)].

[24] Ibid [68(c)].

[25] Ibid [42]-[43], [68(d)].

[26] Department of Natural Resources, Mines and Energy, Operational policy: Deciding the term of a mining lease (Version 1.03, 2021).

[27] Affidavit of M Chong filed 2 September 2022, [73], Ex MC-1 page 133.

[28] Ibid Ex MC-1 page 160.

[29] Ibid [73], Ex MC-1 page 169.

[30] Department of Natural Resources, Mines and Energy, Operational policy: Deciding the term of a mining lease (Version 1.03, 2021), page 2-3.

[31] Ibid page 2-3.

[32] Set out at [36] of these reasons.

[33] Affidavit of M Chong filed 2 September 2022, [78].

[34] bid [88], Ex MC-1 page 187.

[35] Ibid [86].

[36] Applicants’ submissions filed 2 September 2022, [49].

[37] Affidavit of M Chong filed 2 September 2022, [82], Ex MC-1 page 186-187.

[38] Ibid [84].

[39] Ibid [86], [88].

[40] Ibid [88(a)].

[41] Ibid [90]-[91].

[42] Ibid [93]-[94].

[43] Ibid [95].

[44] Ibid [96].

[45] Ibid [99(a)].

[46] Ibid [102].

[47] Ibid [55].

[48] Ibid [43(b)]; Affidavit of J Fulcher filed 3 June 2022, [13]-[15].

[49] Affidavit of M Chong filed 2 September 2022, [43(b)].

[50] Affidavit of J Fulcher filed 3 June 2022, [9]-[10].

[51] Ibid [9].

[52] Affidavit of M Chong filed 2 September 2022, [111].

[53] Ibid.

[54] Ibid [115].

[55] Ibid [120]-[121].

[56] Mineral Resources Act 1989 Sch 2.

[57] Ibid s 271A(2).

[58] Ibid Sch 2.

[59] Affidavit of M Chong filed 2 September 2022, [63].

[60] Ibid [124].

[61] Waratah Coal Pty Ltd v Youth Verdict & Ors [2020] QLC 33.

[62] Cement Australia Exploration Pty Ltd & Anor v East End Mine Action Group & Anor (No 4) [2021] QLC 22 [55]-[57].

[63] Human Rights Act 2019 s 24(2).

[64] Mineral Resources Act 1989 s 279(1).

[65] Human Rights Act 2019 s 25(a).

[66] Ibid s 28.

[67] Affidavit of M Chong filed 2 September 2022, [44(c)].

[68] Ibid [44(e)].

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

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

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

[72] Affidavit of M Chong filed 2 September 2022, [124].

[73] Ibid [57].

Close

Editorial Notes

  • Published Case Name:

    Hannigan and Associates Pty Ltd & Anor v Da Cunha & Anor

  • Shortened Case Name:

    Hannigan and Associates Pty Ltd & Anor v Da Cunha & Anor

  • MNC:

    [2022] QLC 14

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    28 Sep 2022

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
Advocacy NSW Inc v Minister for Environment Protection [2011] FCAFC 59
1 citation
Jump To
Cite 1 - [2011] FCAFC 59
Bat Advocacy NSW Inc v Minister for Environment Protection (2011) 180 LGERA 99
2 citations
Jump To
Cite 1 - (2011) 180 LGERA 99
Cite 2 - (2011) 180 LGERA 99
Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc (No 4) [2021] QLC 22
3 citations
Jump To
Cite 1 - [2021] QLC 22
Cite 2 - [2021] QLC 22
Cite 3 - [2021] QLC 22
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
2 citations
Jump To
Cite 1 - (1975) 132 CLR 473
Cite 2 - (1975) 132 CLR 473
Tickner v Chapman (1995) 57 FCR 451
2 citations
Jump To
Cite 1 - (1995) 57 FCR 451
Cite 2 - (1995) 57 FCR 451
Waratah Coal Pty Ltd v Youth Verdict Ltd [2020] QLC 33
3 citations
Jump To
Cite 1 - [2020] QLC 33
Cite 2 - [2020] QLC 33
Cite 3 - [2020] QLC 33

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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