Vymetal v Inverardi[2024] QLC 20

LAND COURT OF QUEENSLAND

Background

1. [1]
   Lukas Vymetal has applied for mining claim MC300441 over an area of 0.9520 ha on Bonny Glen Station. Bonny Glen, 24 km WSW of Lakeland, is held by the Gummi Junga Aboriginal Corporation. The Gummi Junga Aboriginal Corporation lodged an objection to the grant but did not elect to be an active party in the objection hearing. The access preferred by Lukas Vymetal to the proposed mining claim on Bonny Glen is mostly on gazetted road, but also includes a section of around 270 metres off the gazetted road and on a track through neighbouring property, Old Maitland, near the Palmer River boundary that separates Old Maitland from Bonny Glen. Old Maitland is owned by Vic and Mary Inverardi. Vic and Mary Inverardi also objected to the grant of MC 300441 and elected to be active parties.

2. [2]
   On 22 November 2023 the Department of Resources (the department) referred the application 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.

3. [3]
   A hearing was held on 4 September 2024 in Atherton to hear the objections. In attendance were Vic Inverardi (representing himself and Mary) and Lukas Vymetal. Both Vic Inverardi and Lukas Vymetal were sworn in as witnesses. They answered questions from the Court and from each other, and they made oral submissions to the Court.

4. [4]
   There was some overlap between the grounds of objection made by Vic and Mary, and the Gummi Junga Aboriginal Corporation.

5. [5]
   For ease of reference the documents attached to both the referral and the 13 documents attached became exhibit 1. The applicant’s affidavit in support of his application filed 16 May 2024 became exhibit 2. A statement and attachments from the respondents, Vic and Mary Inverardi, in support of their objections became exhibit 3, and the applicant’s reply exhibit 4.

The hearing

6. [6]
   I invited Vic Inverardi to talk about Old Maitland station to give some context to the grounds of their objection. The property at 5200 ha is small by standards in the region. Neighbouring property Maitland is 75000 ha and Bonny Glen, the largest, is 146,000 ha. A gazetted road dissects Old Maitland. It is not sealed, but it is well maintained by the Cook Shire Council. The Inverardis carry about 500 brahman breeders on Old Maitland. There is one miner on Old Maitland. In contrast, there are a significant number of active mining tenements on Bonny Glen, through which the Palmer River runs. Gold is the target mineral and the Palmer River seems to provide never-ending interest to miners and speculators.

7. [7]
   This is Lukas Vymetal’s first foray into mining. He is a detectorist. A detectorist is someone whose hobby is using a metal detector to try and find valuable metal objects in the ground. He has held parcel prospecting permits (a prospecting permit granted for a Lot) on Bonny Glen. The term of a parcel prospecting permit is 3 months. There is no right to camp or reside on an area the subject of a parcel prospecting permit. A holder must come and go. In contrast, the holder of a mining claim can camp and reside on a mining claim. This has led to suspicion by both the Inverardis and the Gummi Junga Aboriginal Corporation that the primary purpose of the mining claim application is not to operate a mining claim, it is to facilitate the activity of the detectorist, not limited to the 0.9520 ha area of the proposed mining claim.

8. [8]
   Supporting this perception is the Resource Authority Public Report which says the applied for term is 10 years. The Application for Mining Claim says the area of disturbance will be 0.5 ha (for the purposes of calculating the estimated rehabilitation cost) and the activities carried out in each of the first 5 years will be: metal detecting, dry blowing, sluicing and panning.

9. [9]
   An environmental authority is required for a mining claim.

Mining claims and the activities proposed

10. [10]
    The MRA regime for the grant of mining claims is found in Chapter 3. 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.

11. [11]
    There are two types of mining claims, “prescribed mining claims” or “hand mining claims”. A hand mining claim must have a maximum area of 1 ha. MC300441 is a proposed hand mining claim over an area of 0.9520 ha.

12. [12]
    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.^[1]  The activities Mr Vymetal proposes on the mining claim are described at [25] below.

13. [13]
    I am satisfied that that the provisions of Chapter 3 of the MRA have been complied with.

The grounds of objection

14. [14]
    The Inverardis raise the following grounds of objection:

1. Due to major issues in the past regarding our locked boundary gate/fence. We need to reduce the amount of miners using our property as access.

2. We have concerns of him trespassing off the access road;

3. We have biosecurity concerns with the traffic using the access road.

4. We have major concerns regarding people disturbing our livestock, which are our livelihood.

15. [15]
    The facts and circumstances in support of the grounds of objection are:

1. He has no equipment to help with the upkeep of the access road.

2. He has threatened to cut locks and fences to gain access.

3. We suspect he has been detecting illegally.

16. [16]
    In the Gummi Junga Aboriginal Corporation (GJAC) objection notice, they say:

1. the mining claim application raises significant concerns about plans to use the mining claim as a base camp, applying for a PPP, and engaging in metal detecting activities across the entirety of Bonny Glen without the approval of GJAC and the necessity of leaving the property each day is that there is no monitoring of his movements on our country.

2. express concern about the impacts on their Environmental Management Plan. In particular:

1. “The control and minimisation of contaminated discharges or disturbances to air, land and water

2. The control and minimisation of waste

3. Ensure that stripping and mining methods are undertaken so as to ensure that rehabilitation can be performed so as that the land is left in as good or better condition than pre-disturbance.”

17. [17]
    In the Inverardi’s statement filed 28 May 2024, they express concern that Lukas Vymetal is not a ‘genuine bona fide’ miner and that his mining claim application is to gain access for the purpose of establishing a base camp for his metal detecting activities. They are concerned that he will invite other detectorists on to the mining claim. The Inverardis raise concern about fire risk – they say that some detectorists burn an area in advance of using metal detectors to search an area. They see fire escaping from Bonny Glen as a risk to Old Maitland.

18. [18]
    Fire risk was not raised as a ground of objection by either the Inverardi’s or the Gummi Junga Aboriginal Corporation.

19. [19]
    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.

20. [20]
    Section 78(2) MRA provides:

(2)The Land Court shall not—

1. give an instruction to the Minister directed towards the grant of a mining claim;
2. 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 -
3. the provisions of this chapter have not been complied with; or
4. the public interest would be adversely affected by the grant of the mining claim; or
5. there is good reason to refuse to grant the mining

21. [21]
    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.

22. [22]
    The objections align with criteria concerning sound land use management, appropriate land use, the public right and interest, and to ‘good reason”.

23. [23]
    I will consider the objections on that basis.

24. [24]
    At the hearing, the intentions of Lukas Vymetal for the proposed mining claim were explored.

25. [25]
    Lukas Vymetal said that he intends to work the mining claim by metal detecting, dry blowing, sluicing and panning. He said that dry blowing is the alternative to sluicing, in the absence of water. It is a method for separating particles from soil. These methods can be carried by hand to a depth of 1 to 1.5 metres. He intends to work the mining claim between the months of March and September only. The appearance of an extended term is because of the adoption of these are hand methods. Mechanical means would allow the mining program to be completed in a much shorter period.

26. [26]
    Although ‘fire’ was not identified as a ground of objection it was discussed. Mr Vymetal said that he does not and would not burn off areas ahead of metal detecting.

27. [27]
    Access was the ground of main interest. Vic Inverardi identified three options for access to the proposed mining claim.

28. [28]
    The only access identified in the mining claim application is via the gazetted road through Old Maitland in the direction of the Palmer River, until the gazetted road takes a sharp turn. At that point there is a track, off the gazetted road (on Old Maitland), through a fence and locked gate that travels towards the Palmer River, a distance of approximately 270 metres.

29. [29]
    The other options presented by Vic Inverardi were through Byerton Reserve without the need to deal with a fence or gate on Old Maitland but involving two crossings of the Palmer River. Lukas Vymetal said this would involve a 1 hour and 20 km longer trip. The other option is through the Bonny Glen ‘front gate’ access via the homestead which involves only a crossing of the Little Palmer River. Lukas Vymetal said he had never driven that access and it was not his preferred access and not part of his mining claim application.

30. [30]
    The Environmental Authority (EA) for MC300441 is issued by the Department of Environment and Science under Chapter 5 of the Environmental Protection Act 1994 (Qld).The EA applies the standard conditions. Because there was no objection to the EA, the Department of Environment and Science did not participate in the hearing.

Current and prospective uses of the land

31. [31]
    The Inverardi’s issues taken from Vic Inverardi’s evidence concern:

1. The cattle enterprise.  The Inverardis run a brahman breeding enterprise and carry 500 head.  While they do not have a biosecurity plan, they are concerned about biosecurity.  They appreciate that with a gazetted road through the property they have little capacity to require “wash downs” as a method of weed control.

2. Environmental protection – in particular from uncontrolled fire. Although this was not a ground of objection it is noted. 

3. Fencing.  Three of their four paddocks are fenced although the biggest paddock is not. They are not particularly concerned about traffic impacts on the behaviour of their cattle.

4. Access and the use of the gated area.  They have agreements with other miners who hold keys to the lock.  They are not entirely opposed to a similar approach with Mr Vymetal if the mining claim is to be granted.

5. Otherwise, they accept that the gazetted road is a public road – which is not heavily trafficked – 5-6 vehicle per day.  They raise no issues about noise, dust or other disturbance. 

32. [32]
    In the circumstances I think some access conditions might be warranted. Those conditions would apply to any and all entry to Old Maitland.

33. [33]
    The conditions I recommend do not vitiate the requirement to address compensation for access which I discuss below.

Application of the Land Access Code and the Small-Scale Mining Code

34. [34]
    It is rare for an objection to the grant of a mining claim to be referred to the Land Court. This may be because of the conditions and guidelines contained in the Land Access Code and the Small-Scale Mining Code for prescribed activities.

35. [35]
    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.

36. [36]
    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. However, the mandatory conditions in Part 3 of the Land Access Code do not apply to mining claims.

37. [37]
    The Small-Scale Mining Code was made by regulation pursuant to s 391C Mineral Resources Act 1989. The code describes mandatory conditions in relation to excavation, waste management, fuel storage, the use of chemicals, and drilling and sampling. The code also contains guidelines regarding land disturbance, erosion and sediment control, the use of roads and tracks, the location of campsites, the management of noise and dust, the placement of marker pegs and the use of sumps, and issues regarding fuel storage.

38. [38]
    The Codes should provide landowners with confidence that the impacts of small-scale mining activities are appropriately managed. That confidence will only be felt if the miner is familiar with the Codes’ guidelines and conditions. I did not get a confident answer to this question when I asked Mr Vymetal about his awareness of the codes’ and the guidelines and conditions they contain. For that reason, I am recommending the grant of MC300441 with a number of conditions that would otherwise be unnecessary.

Conditions on grant

39. [39]
    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.

40. [40]
    The conditions I recommend are:

1. The holder of MC300441 must use existing access points,

1. roads or tracks on the landholder’s land, unless alternative access is

2. negotiated with the landholder;

2. The holder of MC300441 must operate vehicles on the landholder’s land in a way that minimises noise, dust and disturbance to the land;

3. The holder of MC300441 must use the landholder’s land in a way that minimises disturbance to people, livestock and property;

4. If in carrying out activities associated with MC300441, the holder of MC300441 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;

5. The holder of MC300441 must, after using a gate on the landholder’s land, return the gate to its original position unless advised otherwise by the landholder.

Compensation

41. [41]
    A mining claim shall not be granted or renewed unless compensation has been determined, whether by agreement or by determination of the Land Court. The matter will be listed for review to discuss the programming of orders for the determination of compensation.

Human Rights Act 2019 (Qld)

42. [42]
    The Human Rights Act 2019 (Qld) (HRA) applies to recommendatory proceedings in the Land Court.

43. [43]
    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.

44. [44]
    The relevant rights to be considered are found in Part 2, Division 2 of the HRA.

45. [45]
    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.

46. [46]
    The GJAC Corporation Rule Book states that its objective is to principally relieve poverty, sickness, destitution, serious economic disadvantage, distress, suffering and misfortune of the traditional owners of the area known as Bonny Glen Pastoral Holding.

47. [47]
    The Resource Authority Public Report indicates 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.

48. [48]
    I have no material before me to know the ‘future act’ status of this mining claim. 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).

49. [49]
    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.

Conclusion

50. [50]
    Weighing the relevant factors in the balance, I consider that the evidence before the Court favours the recommendation of the grant of MC300441 subject to the conditions set out in paragraph [40] above.

Orders

1. I recommend to the Minister for Resources, as the Minister responsible for the Mineral Resources Act 1989 (Qld), that MC300441 be granted, provided that conditions consistent with Orders 2 – 5 are included.

2. The holder of MC300441 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 MC300441 must use the landholder’s land in a way that minimises disturbance to people, livestock and property;

4. If in carrying out activities associated with MC300441, the holder of MC300441 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;

5. The holder of MC300441 must, after using a gate on the landholder’s land, return the gate to its original position unless advised otherwise by the landholder.