Pickering v Pedersen[2023] QLC 12

LAND COURT OF QUEENSLAND

Background

1. [1]
   Rai Pickering has applied for two mining claims: MC300416 within the Mitchell River, and MC300417 within the watercourse near the junction of the Mitchell River and the Hodgkinson River. Karma Waters Station straddles the Mitchell River and the Hodgkinson River at the locations of both mining claim areas. The applied for areas are not contiguous.

2. [2]
   Alan and Karen Pedersen (the Pedersens) own Karma Waters Station. The Pedersens lodged objections to the grant of both mining claims.  In these reasons and in the recommended conditions, a reference to landholder means the owner or owners of the land that constitutes Karma Waters Station.

3. [3]
   Although the applications for both mining claims was made on 12 November 2021, the mining notice was not issued until 15 February 2023.

4. [4]
   On 24 March 2023, the Department of Resources (the department) referred both applications to the Land Court pursuant to section 72 of the Mineral Resources Act 1989 (Qld) (MRA) on the basis that properly made objections to the grant of the mining claims had been lodged. 

5. [5]
   The Court made orders for the exchange and filing of statements of fact and issues, and set the matters down for hearing in Mareeba. The hearing was conducted on Wednesday, 16 August 2023. Alan Pedersen and Rai Pickering appeared in person and were sworn in as witnesses. They answered questions from the Court and from each other, and they made oral submissions to the Court.

6. [6]
   Ms Claire Mackney, Avoca Tenement Consulting, was also present. Ms Mackney had provided professional assistance to Mr Pickering with his mining claim applications. Ms Mackney was also sworn in and gave evidence at my request concerning procedural matters.

7. [7]
   Although there are two mining claim applications and two sets of referral material, and because the documents mirror each other apart from some mining claim specific information, for ease of reference the documents attached to both referrals became exhibits 1 to 11. The filed material became exhibits 12 to 17.

Karma Waters Station

8. [8]
   Karma Waters Station is located 200km north-west of Cairns on the northern side of the Mitchell River. The property is approximately 45,000 hectares, made up of shaly or greywacke ridges. Access is via the Mulligan highway, 25km west of Mt. Carbine and along Hurricane road and Karma Waters road.

9. [9]
   The Station was established through the amalgamation of a block north of the St George river, which was won in a ballot in 1989, and the purchase of an Occupation Licence in 1991. Both blocks were bare of infrastructure and cattle when the Pedersens took them on.

10. [10]
    Karma Waters Station is also the place where, for the first time anywhere in Australia, a determination of native title was agreed between pastoralists (Alan and Karen Pedersen) and traditional owners (Western “Sunset” Yalanji), in 1998.

11. [11]
    As stated in their 16 May 2023 statement of facts and issues, the determination of native title allowed the Pedersens to upgrade their tenure from Occupation Licence to a perpetual lease.^[1] The permitted uses include grazing, agriculture, aquaculture, horticulture and tourism. They also received approval from the Mareeba Shire Council through a material change of use to construct “two kitchen/ablution type camps in the area upstream from the homestead, which are yet to be built.”  The statement continues: “Although our 11 camping sites are downstream from the homestead during the busy times (school holidays, weekends) we often have people camp at several sites above the homestead”.

12. [12]
    In 2005, the Pedersens also entered into an Indigenous Land Use Agreement with the Western Yalanji for the purposes of development.

The mining claims

13. [13]
    The referral documents listed in section 5 of the Referral Form 06C became Exhibits 1 to 11 in respect of both mining claims:

14. [14]
    Exhibit 3 for both referrals is a cadastral map showing the permit and access area. The cadastre shows the applied for areas and the access area within lots 281 and 285, and the applied for mining claim area within the watercourse. The proposed access to the mining claim areas is depicted on the maps as a red line through what appears to be a long north-south stretch of Karma Waters Station.

15. [15]
    The term applied for in both mining claims is 10 years.

16. [16]
    Exhibit 5 for both referrals (the Application for Mining Claim) included a number of ‘uploaded documents’ which appeared as hyperlinks. These became Exhibits 5.01 to 5.10:

17. [17]
    The hyperlinks are to the Mines Online portal to which the Court does not have access. Exhibits 5.03, 5.07, 5.09, and 5.10 can be found elsewhere in the material. However, Exhibits 5.01, 5.02, 5.04, 5.05, 5.06, and 5.08 are not. Of those, documents 5.04-5.06, might have been of some assistance.

Mining claims and the activities proposed

18. [18]
    Pursuant to s 77(2) MRA, the Land Court shall take such evidence, shall hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters (if any) and shall not be bound by any rule or practice as to evidence.

19. [19]
    The MRA regime for the grant of mining claims is found in Chapter 3 MRA. Section 78(2) MRA provides that the Land Court shall not make a recommendation to the Minister directed towards the giving of consent by the Governor in Council to the grant of a mining claim if it is satisfied that the provisions of Chapter 3 have not been complied with.

20. [20]
    The applicant’s referral statement (Exhibit 10) includes the following information:

“… [4] This area of the Mitchell River has historically been mined. Further, panning of the creek, as allowable in a USL River with a fossicking licence, has provided evidence of good colour in the panning dish. This suggests a minable resource exceeding the area of the mining claims. The claims were only ever applied for as a small-scale mining concern (not seeking to mine this area with machinery).

…

[6] The mining claim applications are made for a small floating dredge operation. The claims are proposed to be worked part time as often access is blocked in the wet season … The mining operation will predominantly occur while water is in the river. Panning and metal detecting within the mining claim area may occur when there is no water present. Gold recovered will be sold as a small supplementary income from the resources hoped to be recovered from ML 100207 once granted.

…

[9] The proposed claim is what is referred to as a “hand mining” claim. So while dredging is allowable on this tenure, it does not have the same impact or meet the same conditions of a prescribed mining claim. The area of the mining claims was chosen as they are deeper sections of a river known for it’s alluvial resources. … The depth of the areas applied for allows for a longer period of access to the water throughout the production (dry) season.

…

[11] … The river is largely fenced on both sides as required by the Livestock Production Assurance Program and Biosecurity plans for both properties this excludes cattle watering in the area of the river near to the mining claims…”  

21. [21]
    In Response to the Pedersens’ contentions (Exhibit 15) concerning turbidity, Rai Pickering says at paragraph 3:

“In the wet season, the sediment in the river is naturally stirred up and discoloured without any interference from human activity. Dredging activities can only be carried out when the flow of water is slow enough to allow for safety of the operator. The times dredging activities can occur will vary from year to year. The potential discolouration caused by a small floating dredge operation is unlikely to travel more than a couple of hundred metres downstream. We must note that small scale prospecting activities such as panning may occur when dredging is not viable.”

22. [22]
    The Resource Authority Public Report for both mining claim applications identifies the type of mining as “Hand mining”.^[2]  The Application for Mining Claim for both identifies gold as the specific mineral.

23. [23]
    The Mining claim work program attached to the Application for Mining Claim (Exhibit 5) indicates that the area of disturbance “Hand mining (not previously mined)” as “up to 0.1 hectares”. The Work Program for the first 3 years is described as “Dredging of alluvial channel”. The “mining equipment/machinery” proposed is:

“Application is made for a dredging application in the Mitchell River. The eductor dredge proposed to be used is 193mm inlet. A 4-inch inlet dredge is also available for use on the proposed mining claims as a secondary option.”

24. [24]
    In section 9 of the Application for Mining Claim under the heading Treatment of ore, it says: “Recovery of the mineral will be carried out using the following methods”:

“The alluvial wash will be extracted by way of suction dredge, the material is recovered from the watercourse, passed over a sluice and returned to the river.”

Small-scale mining on Mining Claims

25. [25]
    The Small-scale mining code was made by regulation pursuant to s 391C MRA. While the code applies to mining claims for opal and gemstones, it does not apply to mining in a watercourse or riverine area.^[3] 

26. [26]
    A mining claim in a watercourse or riverine area is not therefore eligible for an Environmental Authority exemption.

27. [27]
    In respect of both mining claim applications Environmental Authority P-EA-100243800 (Exhibit 11) has been issued.

28. [28]
    There are two types of mining claims, “prescribed mining claims” or “hand mining claims”.

29. [29]
    Prescribed mining claims can be granted for an area up to 20 ha and allow the use of machinery for opal, gemstones, corundum, and other precious stones. Not gold.

30. [30]
    A mining claim that is not a ‘prescribed mining claim’ may only be granted for ‘hand mining’. The maximum area is 1 ha.

Do the applications comply with Chapter 3 of the MRA?

31. [31]
    The only reference to “hand mining” in the MRA is in s 50(1)(a)(ii) which states: “for a mining claim other than a prescribed mining claim—hand mine in accordance with the conditions of the mining claim any mineral to which the mining claim applies.”

32. [32]
    Schedule 2 to the MRA contains the following definition:

hand mining means mining using hand-operated tools, including, for example, picks, shovels, hammers, gads, sieves and windlasses, but does not include mining using explosives.

33. [33]
    However, s 50(1)(b)(ii) provides that for the purpose of mining as provided for in paragraph (a) the holder of the mining claim may use such machinery, mechanical devices or other equipment authorised under the MRA to be used for that purpose.

34. [34]
    Section 110 is a regulation making power for the Governor in Council to authorise the types of machinery etc that may be used on a mining claim. The Mineral Resources Regulation 2013 (Qld) reg 8(2), which prohibits the use of prohibited machinery on a mining claim, does not apply to the use of an eductor dredge in the Mareeba Mining District (reg 8(3)(b) Mineral Resources Regulation) if the eductor dredge has an inlet nozzle of no more than 200mm, and is being used while water is flowing in, or in streams leading into the Palmer or Mitchell river. 

35. [35]
    As I outline above, while the applicant states that he proposes to carry out “hand mining”, he also refers to it as dredging application. He says: “The eductor dredge proposed to be used is 193mm inlet” and that a 4-inch inlet dredge is also available for use as a secondary option; and that “The alluvial wash will be extracted by way of suction dredge, the material is recovered from the watercourse, passed over a sluice and returned to the river.”

36. [36]
    In this case the applications are within the Mareeba Mining District; the intended eductor dredge has a 193mm (or alternatively four inch) diameter inlet; and, MC300416 is within the Mitchell River, and MC300417 is within the junction of the Mitchell and Hodgkinson River.

37. [37]
    I am satisfied that that the provisions of Chapter 3 of the MRA have been complied with.

The grounds of objection

38. [38]
    The Pedersens raise two grounds of objection. In the objection form (Exhibit 9), they state:

“The mining claim is in direct conflict with our small-scale tourist operation (camping and fishing) on the Mitchell River. Although the claim is not over one of our set camping sites it is in an area that takes campers in the busy times.

Dredging also suspends a lot of sediment that discolours the river well below the claim itself make camping untenable.”

39. [39]
    The facts and circumstances in support of the grounds of objection are:

“Our small-scale tourism operation has been part of our business for over 30 years and have now moved to on-line bookings. Several thousand people annually enjoy the serenity of the pristine river as we have strict conditions of entry and hygiene.

We have also fenced the entire 45km of the river at a considerable cost to restrict stock access and limit erosion.”

40. [40]
    In their 16 May 2023 submission to the Court, the Pedersens do not attempt to expand the ground of objection but provide some contextual information – including the fact that there are currently 11 camping areas; the nature and purposes of their leases which include aquaculture and tourism; Council approvals to upgrade camp site facilities; and the fact that during busy times “people camp at several sites above the homestead”. They also state that previous dredging in the 1990’s resulted in discolouration of the river and “suspended solids two kilometres from the activity”.

41. [41]
    In his 24 May 2023 response, Rai Pickering says that the camping locations are not mapped so he could not assess impact, and noted that the homestead is approximately 12km downstream of MC300416, and 10km downstream of MC300417, and that Alan Pedersen had indicated that the camp sites were further downstream from the homestead.

42. [42]
    In compliance with order 1 of the orders of 9 August 2023, the Pedersens filed two maps (Exhibit 17) identifying the location of existing campsites and proposed cabin and camp sites. The maps also identify the location of gates in the relevant area.

43. [43]
    In relation to sediment, Rai Pickering says that “sediment in the river is naturally stirred up and discoloured without any interference from human activity”. He says that dredging activities can only occur when the flow of water is slow enough to allow for the safety of the operator. He adds: “The potential discolouration caused by a small floating dredge operation is unlikely to travel more than a couple of hundred metres downstream.” He also notes that “other small scale prospecting activities such as panning may occur when dredging is not viable.”

44. [44]
    In evidence, Mr Pickering said that in relation to MC300417 at the junction of the Mitchell and Hodgkinson rivers, because it is where two watercourses meet, a level of turbidity is natural. He reiterated that the conduct of his mining activity would, of necessity, occur at times of slow water flow.

45. [45]
    Rai Pickering, on a number of occasions, notes that the river is unallocated state land and that the river is wholly fenced with no gates. However, he goes on to say that: “To have better vehicle access to the claims once granted, I will need to put gates in.”

46. [46]
    This became the subject of some discussion at the hearing. Mr Pedersen expressed the firm view that any installation of new gates must meet the landholders’ standards of construction and preferably be constructed and installed by the landowner at the miner’s expense.

The relevant criteria

47. [47]
    It is rare for an objection to the grant of a mining claim to be referred to the Land Court. This may be because there are processes in place for small-scale mining which go some way to addressing landholder concerns, including the Small-Scale Mining Code for prescribed activities. As I note at [25] above, the code does not apply to mining in a watercourse or riverine area. More intensive mining in a watercourse or riverine area for alluvial gold, tin and mineral sands most often happens on a mining lease.

48. [48]
    Unlike the criteria set out in s 269(4) MRA relating to applications for mining leases, there are no like provisions in Chapter 3 for mining claims.

49. [49]
    Section 78(2) MRA provides:

1. (2)
   The Land Court shall not—

1. (a)
   give an instruction to the Minister directed towards the grant of a mining claim;

1. (b)
   make a recommendation to the Minister directed towards the giving of consent by the Governor in Council to the grant of a mining claim;

if it is satisfied that -

1. (c)
   the provisions of this chapter have not been complied with; or

1. (d)
   the public interest would be adversely affected by the grant of the mining claim; or

1. (e)
   there is good reason to refuse to grant the mining claim.

50. [50]
    These criteria are somewhat skeletal. Nevertheless, the “public interest” and “good reason” are quite broad concepts. The s 269(4) MRA criteria specifically refer to the public right and interest and to “good reason”, but also specifically include consideration of whether the activities carried out would conform with sound land use management; whether there may be any adverse environmental impacts; and whether the proposed mining operation is an appropriate land use taking into consideration the current and prospective uses of the land.

51. [51]
    The objections raised by the Pedersens, align with criteria concerning environmental impacts (turbidity) and whether the mining operation is an appropriate land use taking into consideration the Pedersens’ current and prospective uses of the land. I will consider the objections on that basis.

Environmental impacts

52. [52]
    The objection links both environmental concerns and the impact it might have on the Pedersens’ tourism venture. Tourism on Karma Waters Station is not speculative, it is a specified purpose of their lease, and has been operating for 30 years.

53. [53]
    As noted, the Pedersens say that dredging (also) suspends a lot of sediment that discolours the river well below the claim itself makes camping untenable.

54. [54]
    Included in the referral material is Environmental Authority P-EA-100243800 for MC300416 and MC300417 (the EA). The EA is issued by the Department of Environment and Science under Chapter 5 of the Environmental Protection Act 1994 (Qld). 

55. [55]
    The EA applies the standard conditions. Schedule A are the General Conditions. Condition A7 is as follows:

“A7: The holder of the environmental authority must ensure that any turbidity at a point 300m downstream from any mining activity being carried out in a watercourse, is no greater than any turbidity upstream from the activity.”

Note 10 of the EA reads –

“With regard to on site management of water refer to the Environmental Protection (Water) Policy 2008.” 

56. [56]
    The EA does not specify how the holder of the EA must ensure this outcome. For example, the condition does not specify the need for regular water testing and reporting on turbidity. I note at [43] above that Rai Pickering says that: “The potential discolouration caused by a small floating dredge operation is unlikely to travel more than a couple of hundred metres downstream.”

57. [57]
    In evidence Mr Pickering was asked how he might ensure that the mining activities do not offend condition A7. In response, he said that he had not considered any scientific approach rather he would assess the impact visually, or perhaps using a drone.

58. [58]
    This does suggest that there is a risk of mining operations offending EA condition A7 and no concrete proposal for mitigation, measurement or reporting to ‘ensure’ that during mining activity the turbidity at a point 300 metres downstream is no greater than any turbidity upstream.

59. [59]
    Because there was no objection to the EA, the Department of Environment and Science did not participate in the hearing. I cannot therefore recommend additional or alternative conditions be applied to the EA.

60. [60]
    However, in accepting the conditions imposed by the EA, if the mining claims are granted, regular testing would be a way of ensuring compliance with condition A7. To be meaningful, the testing should occur at and around the time of mining activity and the results provided to the Pedersens.

Current and prospective uses of the land

61. [61]
    The relevant issues here are:

1. The small-scale tourism operation has been part of the Pedersens’ business for over 30 years. There are currently 11 camping areas, and several thousand people annually enjoy the serenity of the pristine river.  The Pedersens have strict conditions of entry and hygiene.
2. The nature and purposes of the Pedersens’ leases include aquaculture and tourism.
3. Council approvals given to upgrade camp site facilities.
4. During busy times “people camp at several sites above the homestead”.
5. The Pedersens have fenced the entire 45km of the river to restrict stock access and limit erosion.

62. [62]
    The maps filed by the Pedersens^[4] show the location of camp and cabin sites proposed in the future – some which are in the general vicinity of the proposed mining claim areas.

63. [63]
    Prior to the receipt of the maps, Rai Pickering said that the camping locations were not mapped so he could not assess impact; that the homestead is approximately 12km downstream of MC300416, and 10km downstream of MC300417.

64. [64]
    As I note earlier, Rai Pickering says that the river is unallocated state land and that the river is wholly fenced with no gates. He further says that: “To have better vehicle access to the claims once granted, I will need to put gates in.”

65. [65]
    Understandably, the Pedersens might be somewhat alarmed that Rai Pickering might unilaterally decide where and how their fences might be impacted.

66. [66]
    In evidence, Mr Pedersen raised specific concerns regarding access through Karma Waters paddocks which hold wieners, and the propensity for them to be spooked by vehicle noise and headlights after dark. Mr Pedersen also noted that because the access track comes within 100 metres of the homestead, vehicle headlights at night shine into the homestead and affect his peaceable enjoyment.

67. [67]
    I accept that the quality and maintenance of fencing on pastoral properties is of critical importance to the pastoralist. It is unacceptable for anyone to interfere with fencing without the express knowledge and consent of the landowner. If the mining claims were to be granted, I consider it necessary to recommend conditions in relation to access. Those conditions would apply to any and all entry to Karma Waters Station, and if it is determined that access to the mining claims on the river through Karma Waters is necessary, that any proposal to construct a gate or gates in the Pedersens’ fence, that the location, the standard of work to be performed including the type and quality of gate be the subject of negotiation between Rai Pickering and the Pedersens, that no work is to commence on the mining claims until the matter of the fence and gates has been resolved, that the cost of any work required to be done to the fence and gates be at the expense of Rai Pickering, that unless it is agreed that the Pedersens undertake the work at Rai Pickering expense that the contractor engaged be to the satisfaction of the Pedersens.

68. [68]
    I also accept that access through Karma Waters Station can adversely affect the pastoral enterprise and the landowners peaceable enjoyment of their home – particularly at night. I am of the view that conditions of entry can manage those impacts. The conditions I recommend do not vitiate the requirement to address compensation for access which I discuss below.

Application of the Land Access Code

69. [69]
    The Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCPA) enabled the making of Land Access Codes that state best practice guidelines for communication between the holders of resource authorities and owners of land.  The Department of Resources has published version 3 (June 2023) of the Land Access Code.  Best Practice Guidelines for communication and negotiations are set out in Part 2 of the document.  These apply to all resource authorities, including mining claims.  The mandatory conditions in Part 3 which deal with access arrangements; livestock and property; the obligation to prevent spread of declared pests; gates, grids and fences, however do not apply to mining claims.

Conditions on grant

70. [70]
    Section 81(1)(p) MRA provides that each mining claim shall be subject to such other conditions as prescribed, and s 81(1)(q) MRA says that the Minister may impose such conditions as the Land Court may determine.

71. [71]
    The conditions I recommend are:

1. The holder of MC300416 and MC300417 must use existing access points, roads or tracks to enter the landholder’s land, unless alternative access is negotiated with the landholder;

2. The holder of MC300416 and MC300417 must operate vehicles on the landholder’s land:

1. In daylight hours (only)

2. At speeds that are appropriate for the landholder’s land; and

3. Minimise noise, dust and disturbance to the land;

3. The holder of MC300416 and MC300417 may operate a vehicle in wet conditions on the landholder’s land only in a way that minimises damage to access points, roads and tracks on the land;

4. The holder of MC300416 and MC300417 must use the landholder’s land in a way that minimises disturbance to people, livestock and property, and to the users of campsites approved by the landholder;

5. If in carrying out activities associated with MC300416 and MC300417, the holder of MC300416 and MC300417 becomes aware of any potential adverse impact, caused by the activities, on the landholder’s livestock or property, they must immediately notify the landholder of the potential impact;

6. If the holder of MC300416 and MC300417 intends to set up camp on the landholder’s land, the holder and the landholder must, before the camp is set up, agree on a location and a plan for managing the camp;

7. If the holder of MC300416 and MC300417 intends to set up camp on land other than the landholder’s land, the holder and the owner or authority responsible for that land must, before the camp is set up, agree on a location and a plan for managing the camp;

8. The holder of MC300416 and MC300417 must, after using a gate on the landholder’s land, return the gate to its original position unless advised otherwise by the landholder; and

9. The holder of MC300416 and MC300417 must negotiate with the landholder in relation to any proposal to construct a gate or gates on the landholder's land in relation to the location, and the standard of work including the type and quality of construction, before work commences on the mining claims.  Subject to an agreement otherwise with the landholder, the cost of the work is to be met by the holder of MC300416 and MC300417.

Compensation

72. [72]
    A mining claim shall not be granted or renewed unless compensation has been determined, whether by agreement or by determination of the Land Court.^[5]  The criteria relevant to compensation include compensation for any surface rights of access and any loss or expense that arises.

73. [73]
    There is no application and no material before me to determine compensation in relation to the grant of these mining claims.

74. [74]
    I raise the issue merely for the purpose of alerting the parties to the fact that engagement between them concerning compensation, if not already the subject of agreement, may be necessary before the mining claims can be granted.

Human Rights Act 2019 (Qld)

75. [75]
    The Human Rights Act 2019 (Qld) (HRA) applies to recommendatory proceedings in the Land Court.^[6]

76. [76]
    My task in making my decision is to properly consider human rights relevant to the decision, which I have done. It is not my function to make a legal ruling that the applications would not be compatible with human rights, and I have not done so.^[7]

77. [77]
    The relevant rights to be considered are found in Part 2, Division 2 of the HRA. There were no submissions made regarding the HRA, nor was there any human rights-based objection made. The potentially affected rights in this matter are those found in s 28 of the HRA – cultural rights. Briefly stated, Aboriginal peoples must not be denied the right, with other members of their community, to enjoy, maintain, control, protect and develop their identity and cultural heritage.

78. [78]
    There is a 1998 determination of the Federal Court recognising the Western Yalanji Aboriginal Corporation as the native title holders of the land in the area of the subject of the mining claims.^[8]

79. [79]
    The Resource Authority Public Reports^[9] indicate that a right to negotiate process is required. A right to negotiate process is required where the State intend to grant a mining interest on land where native title might exist. The grant is known as a ‘future act’.  A right to negotiate process is initiated by the publication of a Native Title Act 1993 (Cth) s 29 notice, followed by a statutory period to allow for any objection to be lodged by a native title party, for negotiation (if an objection is made) to occur, for agreement to be reached, or for an arbitral decision to be made by the National Native Title Tribunal if agreement is not reached. 

80. [80]
    I have no material before me to know the ‘future act’ status of these mining claims. However, it is expected that the Department of Resources will ensure that the ‘future act’ requirements have been or will be satisfied prior to grant. It is also expected that the applicant is aware of the duty of care that applies to any activity where Aboriginal Cultural heritage is located under the Aboriginal Cultural Heritage Act 2003 (Qld). Based on these expectations, I am satisfied that there are processes that provide a level of protection of rights and interests of the affected Aboriginal peoples, and of impact to cultural heritage. These protections would suggest that the prospect that the rights of Aboriginal peoples to enjoy, maintain, control, protect and develop their identity and cultural heritage will be infringed is not inevitable.

Correspondence following the hearing

81. [81]
    On Wednesday 13 September 2023, Mr Pedersen wrote to the Court by email proposing conditions if the Court were to recommend the grant of the mining claims, and raised concerns about the native title status of the proposed mining claim areas.^[10]  The letter was copied to Mr Pickering.  Yesterday, Thursday, 14 September 2023, Mr Pickering responded to Mr Pedersen’s correspondence. The conditions I recommend below broadly address the proposed conditions but are framed in a way which aligns with some of the mandatory conditions in the Land Access Code.  I did so because that form of condition is familiar to small miners and to the department who might be called upon to consider compliance. I have, in these reasons, also outlined matters concerning the native title implications of the grant of the mining claims which will need to be considered by the department and Mr Pickering.   

Conclusion

82. [82]
    Weighing the relevant factors in the balance, I consider that the evidence before the Court favours the grant of MC300416 and MC300417 subject to the conditions set out in paragraph [71] above.

Orders

1. I recommend to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989 (Qld), that MC300416 and MC300417 be granted, provided that conditions consistent with Orders 2 – 10 are included in each MC.

2. The holder of MC300416 and MC300417 must use existing access points, roads or tracks to enter the landholder’s land, unless alternative access is negotiated with the landholder;

3. The holder of MC300416 and MC300417 must operate vehicles on the landholder’s land:

1. In daylight hours (only)

2. At speeds that are appropriate for the landholder’s land; and

3. Minimise noise, dust and disturbance to the land;

4. The holder of MC300416 and MC300417 may operate a vehicle in wet conditions on the landholder’s land only in a way that minimises damage to access points, roads and tracks on the land;

5. The holder of MC300416 and MC300417 must use the landholder’s land in a way that minimises disturbance to people, livestock and property, and to the users of campsites approved by the landholder;

6. If in carrying out activities associated with MC300416 and MC300417, the holder of MC300416 and MC300417 becomes aware of any potential adverse impact, caused by the activities, on the landholder’s livestock or property, they must immediately notify the landholder of the potential impact;

7. If the holder of MC300416 and MC300417 intends to set up camp on the landholder’s land, the holder and the landholder must, before the camp is set up, agree on a location and a plan for managing the camp;

8. If the holder of MC300416 and MC300417 intends to set up camp on land other than the landholder’s land, the holder and the owner or authority responsible for that land must, before the camp is set up, agree on a location and a plan for managing the camp;

9. The holder of MC300416 and MC300417 must, after using a gate on the landholder’s land, return the gate to its original position unless advised otherwise by the landholder; and

10. The holder of MC300416 and MC300417 must negotiate with the landholder in relation to any proposal to construct a gate or gates on the landholder's land in relation to the location, and the standard of work including the type and quality of construction, before work commences on the mining claims.  Subject to an agreement otherwise with the landholder, the cost of the work is to be met by the holder of MC300416 and MC300417.