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Cobbold Gorge Tours Pty Ltd v Terry[2023] QLC 7

Cobbold Gorge Tours Pty Ltd v Terry[2023] QLC 7

LAND COURT OF QUEENSLAND

CITATION:

Cobbold Gorge Tours Pty Ltd v Terry [2023] QLC 7

PARTIES:

Cobbold Gorge Tours Pty Ltd

ACN 113 521 734 

(applicant)

v

David Alexander Terry

(objector)

FILE NO:

MRA400-22

PROCEEDING:

Hearing of application for mining lease and objections

DELIVERED ON:

10 May 2023

DELIVERED AT:

Brisbane

HEARD ON:

19 April 2023

HEARD AT:

Mareeba

MEMBER:

JR McNamara

ORDER:

  1. I recommend to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989, that ML 100317 be granted.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – LAND COURT – where the applicant applied for mining lease to mine gold, tin and mineral sands – where the mining lease application and objection were referred to the land court pursuant to s 265 of the Mineral Resources Act 1989 – where the majority of the mining application area is on the applicant’s own land – where the mining application area is on a nature refuge – where part of the mining application area is owned jointly by the applicant and objector – where the Court considered the standard criteria in s 269(4) of the Mineral Resources Act 1989 – where the objections include: insufficient notice, no compensation agreement, impact of mining on a nature refuge, impact of mining on flora and fauna, impact of mining on roads, and the applicant’s lack of experience

HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the court considered human rights pursuant to s 58 of the Human Rights Act 2019 – where cultural rights of Aboriginal and Torres Strait Islander peoples considered when making recommendation on a mining application under the Mineral Resources Act 1989 – whether mining activity under mining lease would deny cultural rights held under s 28 of the Human Rights Act 2019

Aboriginal Cultural Heritage Act 2003 (Qld)

Human Rights Act 2019 (Qld) ss 28, 58

Mineral Resources Act 1989 (Qld) ss 72, 252, 265, 269

Native Title Act 1993 (Cth)

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

Fisher on behalf of the Ewamian People #2 v State of Queensland [2013] FCA 1249, cited

Sunland Cattle Co Pty Ltd v Kingham [2021] QSC 287, cited

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21, cited

APPEARANCES:

S Terry for the applicant

Background

  1. [1]
    The applicant, Cobbold Gorge Tours Pty Ltd, lodged Mining Lease Application 100317 (ML 100317) on 12 July 2022.  Simon Terry is the sole Director and Secretary of Cobbold Gorge Tours Pty Ltd. 
  1. [2]
    The applicant’s intention is to mine for gold, tin and mineral sands within the bed and banks of Agate Creek from its junction with the Robertson River in a northerly direction. The general location is 30km south-west of Forsayth in North Queensland. The proposed mining lease area is 118.8ha.
  1. [3]
    The majority of the mining lease area is within the Cobbold Gorge Nature Reserve on Lot 3 SP242983. Lot 3 is a 4720 ha working pastoral lease held by Simon Terry over which there is a Nature Refuge Agreement. Also located on Lot 3 is Cobbold Gorge Village, an eco-tourism venture offering guided tours, hiking trails and accommodation. A Nature Refuge Agreement was entered into with the Department of Environment and Resource Management (now the Department of Environment and Science) in 2009.
  1. [4]
    Mining is intended to commence at the southern end of the mining lease area at the junction of Agate Creek and the Robertson River on Lot 3. Access is via Cobb Road and then along a 6.35km track adjacent to a fence line within Lot 2 SP242983. Lot 2 is a pastoral lease known as Howlong, a cattle enterprise, and is jointly held by Simon Terry and his brother David Terry. A small portion at the very northern end of the mining lease area re-enters Lot 2.
  1. [5]
    On 18 July 2022 the Department of Environment and Science received a properly made application for a standard environmental authority associated with mining activities that would occur on ML 100317. The application was publicly notified, no objection was received, and on 28 March 2023 an Environmental Authority with Standard environmental conditions for environmentally relevant activities was approved.
  1. [6]
    David Terry lodged an objection to the grant of the mining lease with the Minerals Hub, Department of Resources dated 7 December 2022. The mining lease application and the objection were referred to the Land Court for hearing.
  1. [7]
    On 17 April 2023, my Associate and I were guided by Simon Terry on a site inspection. From Cobb Road we entered Lot 2 (Howlong) onto the proposed access track and drove near to the bank of the Robertson River where we entered, on foot, Lot 3 at the junction of the Robertson River and Agate Creek. We walked into the proposed mining lease area and from positions on the mostly dry creek bed observed the location and landscape including the bed and banks, an escarpment, the contours of the watercourse, the vegetation, and observable wildlife in that general vicinity.
  1. [8]
    A hearing was convened before me in Mareeba on 19 April 2023. Simon Terry attended the hearing, was sworn and gave evidence concerning the application.

The material before the Court

  1. [9]
    The hearing documents included a 17 March 2023 affidavit of Simon Brosnan Terry; Submissions on behalf of Cobbold Gorge Tours Pty Ltd filed 12 April 2023; the referral documents including the Resource Authority Public Report, relevant maps, the applicant’s referral statement, the objection to the mining lease; and, the Mining Lease Application documents including land details, statements justifying the area, the technical capability statement, financial commitment and the proposed mining program.

The Objection

  1. [10]
    The grounds raised by David Terry in the objection are listed as follows: Insufficient notice; no compensation agreement; impact on Nature Refuge; impact on flora and fauna; impact on roads; applicant’s experience.
  1. [11]
    The fact and circumstances relied on in support of the grounds provide some detail. The objector says:
  1. Insufficient notice: As co-owner of Lot 2 (Howlong) he was not provided with notification of the mining lease application, and on becoming aware he had insufficient time to consider the application, seek advice and formulate his objection.
  1. No Compensation agreement: There is no compensation agreement with him in his position as co-owner of Lot 2.
  1. Impact on Nature Refuge: Any mining activity on the Nature Refuge will have a negative impact.
  1. Impact on Flora and fauna: It has not been shown that there will be no adverse environmental impact from the mining; flora and fauna should be protected including the existence of Koalas.
  1. Impact on Roads: This mine will compound the already negative impacts on the standard and maintenance of the access road caused by other existing mines.
  1. Applicant’s Experience: The applicant has no mining experience.
  1. [12]
    The Land Court Deputy Registrar wrote to David Terry on 23 December 2022 informing him that the Department of Resources had referred his objection to the Land Court on 21 December 2022, and advised him that if he wished to take an active role in the hearing process, he must file a Notice of Election by 18 January 2023. No Notice of Election was filed, no other request to become an active party was made, and the objection remains. In these circumstances, the Court must consider the objections and provide David Terry with a copy of the Court’s recommendation and reasons.

Some legal matters

  1. [13]
    In deciding whether to make a recommendation, I must consider the matters contained in s 269(4) of the Mineral Resources Act 1989 (Qld) (MRA).
  1. [14]
    The Court of Appeal has made it clear that, regardless of the matters objectors raise, I must always consider the s 269(4) criteria, but I cannot entertain, nor can I hear, any evidence in relation to any objection or ground that is not contained in an objection or ground.
  1. [15]
    The criteria in s 269(4) are not stand-alone matters, and I am not required to reach a separate conclusion on each of them. Instead, I must consider how all the relevant factors weigh in the balance. However, “it is not the role of the Land Court to run down every hare which may be started by an objector. Even more so, when the objector did not point to the hare on the horizon and set off in pursuit itself.”[1]
  1. [16]
    The Court has determined that it is subject to s 58 of the Human Rights Act 2019 (Qld) (HRA) when it makes a recommendation on a mining objection. The relevance of this will be explained later in these reasons.

Narrowing the grounds of objection

  1. [17]
    It is convenient to discuss grounds 1 and 2 at the outset.
  1. [18]
    Firstly, the assertion that the objector only became aware of the application five days before the closing period for objections to be lodged. The consequences, he says, is that he had insufficient time to consider the application, seek advice, and formulate his objections.
  1. [19]
    The Mining Lease Notice was issued by the Mineral Assessment Hub on 9 November 2022 and provided that any objection needed to be lodged on or before 4.30pm on 7 December 2022, a period of 28 days.
  1. [20]
    The applicant’s agent, UTM Global Pty Ltd, filed a Declaration of Compliance on 9 December 2022 which states that the applicant fully complied with the mining lease notice requirements of ss 252A and 252B of the MRA. Attached to the Declaration is a copy of the Registered Post – Lodgement Receipt addressed to Simon Brosnan Terry and David Alexander Terry and stamped 10 November 2022 from his agent UTM Global Pty Ltd at the postal address, Howlong Station.  Although the address on David Terry’s objection is Old Robinhood Station, he is the co-owner of Howlong and that would be the proper address for service. In evidence, Simon Terry said that Old Robinhood and Howlong are the same property, Lot 2, but mail gets directed to the relevant individual.
  1. [21]
    I accept that a short or shortened timeframe could affect an objector’s ability to prepare and present an objection. And, as stated above, the Court cannot entertain, nor hear, any evidence in relation to any objection or ground that is not contained in an objection or ground.  The objection form (Form MRA-20 Version 8) contains a text box for the grounds, and a text box for “Facts and circumstances relied on in support of the grounds of the objection.” 
  1. [22]
    It is the “ground/s” that is critical. Provided there is a properly made objection, while an objector cannot expand the grounds, an objector can by choice take an active part in the mining objection hearing. An active objector can make submissions concerning the grounds they have raised and cross examine the applicant in relation to the grounds raised. The grounds raised are not insubstantial, and they will be addressed in these reasons.
  1. [23]
    While insufficient notice might raise questions of procedural fairness, on the evidence, and noting for example the objector’s decision not to participate in the hearing, I do not consider it a ground of objection that can be sustained.
  1. [24]
    Secondly, the issue of compensation. David Terry says that there is no compensation agreement in place with him as co-owner of Lot 2. As the MRA provides that a mining lease shall not be granted unless compensation has been determined, David Terry’s opportunity to engage with the applicant in relation to compensation is not jeopardised by a decision to recommend the grant of the mining lease. Compensation would still need to be resolved before grant. It is therefore not necessary to recommend that compensation be resolved as a condition of grant. If compensation cannot be agreed, either David Terry or the applicant can apply in writing to the Land Court to determine the amount of compensation. There is no application currently before the Court.
  1. [25]
    In regard to objections 3 to 6, they raise no apparent challenge to the matters found in s 269(4)(a)–(f) and (h). They do raise issues that may pertain to the matters in s 269(4)(g) and (i)–(m).

The Mineral Resources Act

Has the applicant complied with the provisions of the MRA? S 269(4)(a)

  1. [26]
    Included in the referral documents is a copy of the Notice for Mining Lease 100317 issued by a delegate of the Chief Executive, Department of Resources on 9 November 2022. The Chief Executive cannot issue that notice unless satisfied the applicant is an eligible person and has complied with the requirements for the application.[2]
  1. [27]
    Noting that compensation is yet to be resolved, I am nevertheless satisfied that in respect of the mining lease application there has been compliance with the provisions of the MRA.

Is the area applied for mineralised, or the other purpose for which ML 100317 is sought appropriate? - S 269(4)(b)

  1. [28]
    The applicant’s 9 December 2022 Referral Statement says: that the ML is located within the Etheridge goldfield and has produced significant alluvial gold since the early 1800’s; and that it also has several significant hard rock gold mines including Georgetown, Kidston (mined out) and Agate Creek (in production).[3]
  1. [29]
    The target minerals are gold, tin and magnetic sands. The statement justifying the area of the permit and its shape also says that the mining lease area contains several historical gold prospects. The statement justifying the length of term notes that work completed on the pre-requisite exploration tenement showed good potential for alluvial gold.
  1. [30]
    In evidence, Simon Terry said that he believes from test results that the target minerals are in the base of the core gravels which are in the main channel of the creek. He said that the mineral sands which have a variety of industrial uses are not the primary target but more a by-product from the process of separation and has some value.
  1. [31]
    Although the written submissions say the workforce of three will reside in a mobile camp on the lease, Simon Terry said in evidence that there is no need for permanent infrastructure and that the workforce would in fact be accommodated off the mining lease.

Will there will be an acceptable level of development and utilisation of the mineral resources? – s 269(4)(c)

  1. [32]
    In written submissions filed 12 April 2023, the applicant describes the proposed method as a standard alluvial mining technique of gravity separation using a mobile plant. They say the method requires minimal disturbance and no rehabilitation nor any need for storage or tailings dams or settlement ponds. Using this method, the quantity of mineral to be extracted to justify the project is estimated from historical data. On that basis, there will be an acceptable level of development for the method of mining and an acceptable utilisation of the mineral resources based on the historical data.

Is the area an appropriate size and shape? – s 269(4)(d)

  1. [33]
    The size and shape appear to be the most minimal for the purposes. In written submissions, the applicant says the area and shape of the lease was chosen to include “the alluvial of Agate Creek only, following the contours of the watercourse and it also provides enough area to process material from the creek bed,” and “The mobile plant will be based on a track mounted screening plant adapted to house a step-by-step process to capture the minerals. All material will be fed into the hopper using an excavator within the confines of the main creek channel then returned to the creek bed beside plant. As the plant moves along the watercourse any residual piles will be levelled with the excavator.” They say the mining lease has a very small footprint which suits this method of mining.

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

  1. [34]
    The term applied for is 12 years. In the Statement justifying the length of term, in the referral documents, and in written submissions, the applicant says that: “… it is estimated that the lease holds approximately 525,000 cubic metres of material suitable for mining and is expected to take between 10 and 12 seasons to process allowing for seasonal flows throughout the creek system. However, the company is anticipating processing between 15,000 to 20,000 cubic metres a year.” Mining will, by necessity, be seasonal.
  1. [35]
    In evidence at the hearing Simon Terry agreed that the level of processing planned might not see mining on the lease completed in 12 years.[4]  He said they were not intending to disturb every section of the creek bed, they would be targeting the main channel. He said that 12 years will give him enough time to work most of the mining lease. 

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

  1. [36]
    The Mining Lease application documents includes a Statement of Financial and Technical Capability signed by Simon Terry and dated 29 June 2022.
  1. [37]
    In relation to financial capability, the statement simply says that the applicant has the required funding to successfully complete the proposed work program as detailed in the documents accompanying the application; and that the applicant has access to additional funding should it be required.
  1. [38]
    As to technical capability, the objector says the applicant has no mining experience.
  1. [39]
    The applicant does not challenge that statement, except to say that Simon Terry was involved “in the family alluvial gold operation on Cave Creek in 1988.” The applicant also says that Simon Terry has had a 50-year association with the area and has engaged in several projects throughout the immediate area. The applicant says that logistics and earthworks are a specialty of Simon Terry, and he has provided support through roadworks and freight logistics for another project on Agate Creek.
  1. [40]
    The applicant in written submissions says they will use a contract company to execute the work and they have “access to several experienced technical staff and advisors” with significant local knowledge, who they name, and provide information concerning their qualifications and experience. In evidence, Simon Terry said he has had a long and healthy relationship with mining experts working in the area and with various companies. He says he has “hand-picked” people with great experience and knowledge in the field of alluvial mining appropriate for such an operation.[5]
  1. [41]
    I am satisfied that the applicant has the necessary financial and technical capacity to carry on the proposed mining operation.

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

  1. [42]
    The objector says the applicant’s experience is limited to exploration activities. In the Permit Term Justification Statement (filed with the ML Application documents), the applicant says that Cobbold Gorge Tours Pty Ltd acquired the pre-requisite tenure EPM 26351 from Nimble Resources Pty Ltd in 2019 and have been exploring the tenement since then. There is nothing in the filed material, positive or negative, regarding the performance of the applicant, nor is there any allegation of poor past performance in managing natural resources.

Is there any disadvantage to any other miners? – s 269(4)(h)

  1. [43]
    In written submissions, the applicant says that there are no holders or applicants for mining tenements within the area of the mining lease. The locality map found in the Referral Documents shows a number of other alluvial mining leases in the broader region including the nearby Cave Creek mining lease, however, there is no evidence of disadvantage that might be caused by the grant of ML 100317.

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

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

  1. [44]
    It is convenient to discuss these two criteria together as they relate to two grounds of objection namely: impact on the Nature Refuge, and impact on flora and fauna.
  1. [45]
    The facts and circumstances relied on in support of these grounds of objection are that: Lot 3 on SP242983 has a Nature Refuge declared upon it and any mining activity will negatively impact upon this; and, the flora and fauna should be protected including the existence of Koalas, and it has not been shown that there will be no adverse environmental impact from the mining.
  1. [46]
    In evidence at the hearing, Simon Terry said that in 2008 he voluntarily entered into a Nature Refuge Agreement with the Queensland Parks and Wildlife Service. The Nature Refuge covers 4720 ha. The purpose of the nature refuge is to enhance, promote and protect the natural and cultural attributes that the landscape offers. He said the sandstone offers a unique formation and holds somewhat unique flora and fauna, some vulnerable. He said that he has a great understanding of the area and that it is in his best interests to be aware of the sensitive areas. He said he also operates a tourism business within the Nature Refuge at Cobbold Gorge, taking guests on a daily basis to the Gorge and the sandstone environs, and providing for guided or self-guided hiking. He said, “we have a great understanding of the area and intend to keep it that way – in its pristine state.” [6] 
  1. [47]
    Simon Terry said that the Nature Refuge Agreement is quite non-restrictive “in the sense that it doesn’t or will not … interfere with day-to-day operations of the pastoral lease.”[7]  He continued: “But it does make the leaseholder certainly aware and have guidelines within it to help with the preserving … the area in question, whether it be fauna or flora that needs protecting. So, there is limitations to harvesting timber and installing infrastructure throughout that refuge.”  
  1. [48]
    He said that he had spoken to the “Nature Refuge group” (Queensland Parks and Wildlife Service) about the mining lease application and “they were somewhat concerned … initially.” He noted that the refuge does not constitute a veto over mining, and that as signatory to the covenant, as landholder, as holder of the exploration tenement, and as miner, he can protect the area in a way “outside interests” might not.[8]
  1. [49]
    The Referral documents inform me that an Application for an Environmental Authority was made on 18 July 2022. The Referral documents also included an email from the Environmental Officer, Department of Environment and Science, to the Mineral Hub dated 1 August 2022 confirming that an application had been received for a new standard environmental authority associated with activities that would occur on ML 100317; confirming that the application had been properly made by Cobbold Gorge Tours Pty Ltd; and confirming that Public Notice could commence. In the Public Notice, the “submission period” was from 9 November 2022 to 7 December 2022. No objection to the Environmental Authority was made.
  1. [50]
    In written submissions the applicant says: The holder of an environmental authority must not carry out activities:
  1. In, or within 2km of, a category A environmentally sensitive area; or
  1. In, or within 1km of, a category B environmentally sensitive area.
  1. [51]
    The submissions continue: “However, category C environmentally sensitive area holders must consult with the relevant administering authority and, if determined through consultation that additional conditions are necessary, the holder must comply with those conditions.” The consultation must be carried out prior to carrying out activities in a category C environmentally sensitive area. Nature Refuges are, by definition, category C environmentally sensitive areas. There is no evidence of the existence of category A or B environmentally sensitive areas on the Nature Refuge.
  1. [52]
    An “Environmental Authority with standard environmental conditions for environmentally relevant activities – version 2” for ML 100317 was approved on 28 March 2023. The applicant has consulted with the administering authority but no conditions additional to the standard conditions have been proposed at this time. Standard conditions are the minimum operating requirements an environmental authority holder must comply with.
  1. [53]
    The applicant submits that the method of mining requires minimal disturbance and no rehabilitation. They say in written submissions: “There will be minimal impact on the current use of the land as all material used will be fed into the hopper using an excavator within the confines of the main creek channel then returned to the creek bed beside the plant.” Further, “… water required for plant will be from the creek only not requiring storage dams or tailings dams or settlement ponds.”
  1. [54]
    In evidence Simon Terry said: “… there will be no removal of any material from the creek bed, except the mineral target … And no vegetation or subsoils will be disturbed in the creek banks.” Further: “There’s no surface water in the creek or waterholes that we can interfere with, and any seasonal waterholes that may – may be still obviously on the surface, we will avoid, so we’re not actually disturbing any potential aquatic species.”[9]
  1. [55]
    In evidence at the hearing, Simon Terry said that test results indicate “the target minerals are in the base of the core gravels, which are in … the main channel of the creek. So we can weave our way through any – any areas that have large vegetation or silt banks, which we don’t need to have going through the plant itself. … We don’t intend to build any infrastructure within the … application area. Everything is … mobile and we only intend to visit the site on a daily basis to operate the plant … as … we live nearby.”[10]
  1. [56]
    Simon Terry said there will be no camp on site, just a mobile crib hut with the necessary amenities.[11]  When the machinery, the 12.5M x 2.8M, 22 tonne screening plant, is not in use, for example during the wet season, it will be removed entirely from the site to nominated areas (holding points) and out of the creek bed. He said, “it walks quite quickly through the sand.”
  1. [57]
    At the hearing, Simon Terry was asked if chemicals or toxins would be used in the washing process and he replied: “Definitely not.”[12]
  1. [58]
    In the facts and circumstances to support his objection, David Terry says the flora and fauna should be protected including the existence of Koalas, and it has not been shown that there will be no adverse environmental impact from the mining.
  1. [59]
    At the hearing, Simon Terry was asked if there had been any Koala studies undertaken on the Nature Refuge. He said that to his knowledge there had not been. He said he was aware that there is a small population over a large area of the ‘original parcel lease’ which was called Robinhood before it was subdivided. The Court understands the earlier station property (Robinhood) was subdivided into four Lots, which includes Lot 3 and Lot 2. When asked where the populations are in relation to the mining lease, Simon Terry said: “Anywhere between 15 to 20 kilometres away from that particular ML application, so that – it’s to the – to the south/south-east of the mining lease, and the - the – sighting of koalas in the nature refuge has been pretty much defined to the Robinson River, where there’s large stands of – of varieties of eucalypt, which the koalas prefer. They grow it along the creek – the riverbanks of the Robinson River, which is outside the … mining lease.”[13]

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

  1. [60]
    The objector objects due to the “Impact on roads.” In his facts and circumstances concerning this ground, he says that the additional traffic associated with this mine, in addition to other existing mines, will have further negative impacts upon the standard and maintenance of the access road.
  1. [61]
    In evidence, Simon Terry confirmed that in relation to the access track, it is wholly within Lot 2 which is jointly owned by Simon and David Terry. It was agreed that in addition to the current use of the access track for the pastoral business of Howlong, including maintaining the fence line, the additional traffic would be the vehicle or vehicles used as transport for up to three mine workers on workdays during the season; the delivery of the 22-tonne plant to site; and vehicular use to remove the mine product for further processing.
  1. [62]
    In the earlier discussion regarding compensation, I noted that issues regarding the impact that the use of an access track might have on the business operations of the landowner, including cost and responsibility for track maintenance, if necessary, is subject to a different process.
  1. [63]
    In relation to the impact that additional traffic might have on public roads in the area is a different issue. The evidence suggests to me that while there will be additional traffic arising from the mining activity, it is unlikely to be significant.

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

  1. [64]
    There are no other grounds of objection which have not been canvassed above.

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

  1. [65]
    In written submissions the applicant says that the tenement is located within the Etheridge goldfields which has produced significant alluvial gold since the early 1800s. They also note the several significant hard rock gold mines including Georgetown, Kidston (mined out) and Agate Creek (in production), and that based on this information the proposed operation is an appropriate land use.

Conclusion on s 269(4) considerations

  1. [66]
    The objector says: “…it has not been shown that there will be no adverse environmental impact from the mining,” and that any mining will negatively impact on the nature refuge.
  1. [67]
    In this case, the nature of the impact and the extent of any impact that the grant of ML 100317 might have on the Nature Reserve is capable of being understood with reasonable certainty. There is a long history of alluvial mining in the region.
  1. [68]
    Relevant to my conclusion, I have taken the following matters into account: the target minerals exist in the base of the core gravels in the main channel of the creek; the impact on vegetation will be at best non-existent, at worst minimal; no chemicals or toxins are to be employed; no rehabilitation is necessary as material will be fed into the hopper and returned to the creek bed without destroying vegetation or subsoils; there are no surface water or waterholes that will be disturbed; and when there are seasonal waterholes, mining will not be occurring. The mining lease area is not rich with eucalypts, and the applicant is unaware of threatened or endangered fauna in or near the mining lease area. It is possible that the noise and dust created during active mining could impact flora and fauna, however, the evidence would suggest that the impact would be no greater than the pastoral activities and tourism conducted on Lot 3. For example, helicopters are engaged for mustering and tourism purposes on Lot 3. The Nature Refuge Agreement was not in evidence, and I am unaware if it contains any particular prohibitions. However, as a category C environmentally sensitive area, following consultation, the administering authority can apply additional conditions as necessary.
  1. [69]
    I have carefully considered the evidence in this matter. I have carefully considered the criteria in s 269(4) of the MRA. I accept that there is public interest in protecting areas of high conservation value however the evidence does not support a conclusion that the values the nature refuge hold are at risk. There is no other good reason for refusing the grant.

The Human Rights Act 2019 (Qld)

  1. [70]
    The HRA applies to recommendatory proceedings in the Land Court. A mining objection hearing is such a proceeding.[14] This Court, when exercising its administrative functions is bound by s 58(1) of the HRA.  The steps the Court will take in considering the application of s 58 of the HRA to mining lease objections have been set out in previous decisions, for example in Cement Australia Exploration Pty Ltd & Anor v East end Mine Action Group & Anor (No 4).[15]
  1. [71]
    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.[16]
  1. [72]
    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.
  1. [73]
    There is a 2013 determination of the Federal Court that, subject to certain exclusions, the Ewamian people through the Ewamian People Aboriginal Corporation RNTBC, hold non-exclusive native title rights and interests exists over land and waters including Lot 2 and Lot 3 SP242983.[17] The mining lease application documents state that a Native Title Act 1993 (Cth) “right to negotiate” process must be followed.
  1. [74]
    In evidence, Simon Terry was asked if the right to negotiate process had commenced. He said that the process had commenced with the Ewamian people and that he was in the throes of organising meetings. He outlined the steps intended to be taken, including a site inspection with representatives of the Ewamian people to determine areas of cultural significance that the applicant may need to be aware of or avoid, and that compensation will also be negotiated.[18]
  1. [75]
    I am satisfied that the applicant is aware of its role and responsibility in matters concerning native title and cultural heritage. I am satisfied that if those matters cannot be resolved by agreement, that there is a process which will adequately enable the parties to ventilate these issues. I am also satisfied that the Aboriginal Cultural Heritage Act 2003 (Qld) applies regardless of the ‘native title status’ of the land and that the applicant is currently, and will continue to be, for the purposes of the activities conducted pursuant to a mining lease, subject to a duty of care to take all reasonable and practicable measures to ensure their activity does not harm cultural heritage. Accordingly, because the rights are appropriately protected by the Native Title Act 1993 and the Aboriginal Cultural Heritage Act 2003, they are not limited by the decision of this Court and there is no inevitable infringement.

Conclusion

  1. [76]
    Weighing the relevant factors in the balance, I consider that the evidence before the Court favours the grant of ML 100317.

Order

  1. I recommend to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989, that ML 100317 be granted.

Footnotes

[1] Sunland Cattle Co Pty Ltd v Kingham [2021] QSC 287, [52] (Martin J).

[2] Mineral Resources Act 1989 (Qld) s 252(1).

[3]  Form 9 Applicant’s Referral Statement dated 9 December 2022; Mineral Resources Act 1989 (Qld) ss 72 and 265.

[4]  T1-10, lines 10 to 23.

[5]  T1-10, lines 2 to 8.

[6]  T1-6, lines 46 to 47; T1-7, lines 1 to 16.

[7]  T1-7, lines 18 to 26.

[8]  T1-7, lines 34 to 43.

[9]  T1-8, lines 26 to 33.

[10]  T1-4, line 47; T1-5, lines 1 to 16.

[11]  T1-4, lines 30 to 45.

[12]  T1-8, line 38.

[13] T1-8, lines 41 to 47; T1-9, lines 1 to 10.

[14] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21, [87]-[88] (Kingham P).

[15]  [2021] QLC 22, [55]-[57].

[16] Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21, [1705].

[17] Fisher on behalf of the Ewamian People #2 v State of Queensland [2013] FCA 1249.

[18]  T1-11, lines 1 to 12.

Close

Editorial Notes

  • Published Case Name:

    Cobbold Gorge Tours Pty Ltd v Terry

  • Shortened Case Name:

    Cobbold Gorge Tours Pty Ltd v Terry

  • MNC:

    [2023] QLC 7

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    10 May 2023

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
Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc (No 4) [2021] QLC 22
2 citations
Jump To
Cite 1 - [2021] QLC 22
Cite 2 - [2021] QLC 22
Ewamian People #2 v State of Queensland [2013] FCA 1249
2 citations
Jump To
Cite 1 - [2013] FCA 1249
Cite 2 - [2013] FCA 1249
Sunland Cattle Co Pty Ltd v Kingham [2021] QSC 287
2 citations
Jump To
Cite 1 - [2021] QSC 287
Cite 2 - [2021] QSC 287
Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21
3 citations
Jump To
Cite 1 - [2022] QLC 21
Cite 2 - [2022] QLC 21
Cite 3 - [2022] QLC 21

Cases Citing

Case NameFull CitationFrequency
Pickering v Pedersen [2023] QLC 122 citations
Vymetal v Inverardi [2024] QLC 201 citation
1

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