LAND COURT OF QUEENSLAND

CITATION:	MGT Minerals Pty Ltd v Dunn & Ors [2020] QLC 5	
		
PARTIES:	MGT Minerals Pty Ltd 
ACN 620 809 467
(applicant)	
		
	v	
		
	Gary Dunn
(objector)	
		
	Frances Ford
(objector) 	
		
	and	
		
	Department of Environment and Science
(statutory party)	
		
FILE NO:	EPA090-19 (EPVL00864413) 	
		
DIVISION:	General Division	
		
PROCEEDING:	Objection to application for amendment to environmental authority 	
		
DELIVERED ON:	5 February 2020	
		
DELIVERED AT:	Brisbane	
		
HEARD ON:	16, 18 & 19 December 2019	
		
HEARD AT:	Atherton 	
		
MEMBER: 	PG Stilgoe OAM 	
		
ORDER:	I recommend to the chief executive of the Department of Environment and Science, as the Department responsible for the Environmental Protection Act 1994, that the amendment to EPVL00864413 be approved on the basis of the draft environmental authority for the application subject to an amendment of the date in Conditions C2, E7 (Table E3), E12, E17 and G27 (Table G1).	
		
CATCHWORDS:	ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where an application was made to amend an environmental authority to expand tin mining operations – where an objection was made to the application – where, after considering the objection, a draft environmental authority was issued with both standard and site-specific conditions – where the Court found, inter alia, that the draft environmental authority was sufficient to minimise harm to the environment – where the Court recommended that the Department approve the amendment subject to an amendment of the date in various conditions 

Environmental Protection Act 1994 s 3, s 173(1), s 176(2), s 176(3), s 185, s 190(1), s 191, s 523, sch 2 pt 1
Mineral Resources Act 1989 s 269(4) 

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts & Anor (2011) 180 LGERA 99; [2011] FCAFC 59, cited
Garimperos Ltd v Gary Dunn & Anor [2012] QLC 52, cited
Sinclair v Mining Warden at Maryborough & Anor (1975) 132 CLR 473; [1975] HCA 17, cited
Tickner v Chapman (1995) 57 FCR 451, 495; [1995] FCA 987, cited 
Queensland Industrial Minerals Pty Ltd v Younger & Ors; Queensland Industrial Minerals Pty Ltd v Ryan [2017] QLC 39, cited 	
		
APPEARANCES:	DA Quayle (instructed by Holding Redlich) for the applicant
F Ford, objector (representing herself and G Dunn)
CC McCarthy, Lawyer, Litigation Unit, Department of Environment and Science, for the statutory party 	

Introduction
[1]	Hardy souls have been mining tin in the Mt Garnet region for over 140 years. Those years of mining have not been kind to the local environment. Previous miners’ poor work practices and failure to rehabilitate mines have left bare and eroded landscapes, compromised natural vegetation and dams filled with contaminated water. This legacy has made some of the local community, including Frances Ford and Gary Dunn, suspicious and resentful of mining. They want no future mining in the area.
[2]	MGT Minerals Pty Ltd is the latest miner to take an interest in this area, operating the Mt Veteran Dalcouth Mine 12km north-east of Mount Garnet. MGT holds two mining tenures (ML4349 and ML20547) and an environmental authority (EA) (EPVL00864413) for the current activities, which consist of the Mt Veteran Mill, a tailings storage facility and two water storage dams. 
[3]	MGT wants to develop an open cut tin mine with an open cut pit, waste rock dump (WRD), mine associated infrastructure, a new tailing storage facility (TSF), haul and access roads, a run of mine pad, sediment ponds, a processing plant and clean water dams. It has applied to amend its EA to allow for the expanded activities.
[4]	The Department of Environment and Science (DES) decided the application was a major amendment that required public notification. Mr Dunn and Ms Ford made a submission about the application and, after DES approved the application and published a draft EA, they asked that their submission be taken as an objection to the draft EA. For simplicity, in these reasons I will refer to Mr Dunn and Ms Ford as “the objectors”.[5]	DES referred the application to the Land Court for an objections decision hearing.What is an objections decision hearing?
[6]	Thenature of an is set out in s 190(1)(a) of the Environmental Protection Act 1994. It he administering authority that: (i)	The application be approved on the basis of the draft EA; or
(ii)	The application be approved, but on stated conditions that are different to the conditions in the draft EA; or
(iii)	The application be refused.
[7]	By s 191 of the EPA, in making an objection decision I must consider:
(a)	The application;
(b)	Any response given for an information request;
(c)	Any standard conditions for the relevant activity or authority;
(d)	Any draft EA;
(e)	Any objection notice;
(f)	Any relevant regulatory requirement;
(g)	The standard criteria; 
(h)	The status of any application under the Mineral Resources Act for each relevant mining tenure. 
[8]	The matters that I must consider largely mirror the criteria for decision that the administering authority must apply. The parties have agreed that the decision complied with all relevant regulatory requirements and that the Statutory Party had appropriate and satisfactory regard to all of the matters referred to in s 176(2).
[9]	Counsel for MGT submitted that, because: each of the matters I must consider is in evidence; each of those matters has been addressed by either the Statutory Party or the experts; the deliberations of the Statutory Party and the experts are in evidence; none of the evidence has been objected to and none of the expert evidence has been challenged; and the grounds of objection are agreed, I am at liberty to find that I have discharged my obligation to consider each of the matters under s 191 save for the objections. Counsel submits that I would only recommend something other than the adoption of the draft EA if that was warranted by the objections.
[10]	If an application is a variation application, the administering authority can only consider the material to the extent that it relates to the subject of the condition to be changed.  I intend to adopt the same approach and only consider the objections.The draft EA[11]	Dean Sharpe, the delegate of the Statutory Party, decided to approve the amended EA subject to conditions and to issue the draft EA. He made his decision having considered the objectors’ submissions. The process he followed is set out in his affidavit. Mr Sharpe considers that the draft EA addresses the regulatory requirements for all environmental management decisions pursuant to rr 50-63 of the Environmental Protection Regulation 2008.
[12]	The draft EA contains 36 model mining conditions and 42 site-specific ones. There may be a criticism that the EA conditions are too vague, that they do not give sufficient certainty about when certain management plans will be provided, who will approve them, and who will monitor compliance. However, the conditions need to be read in light of the Environmental Impact Study (EIS) prepared by CDM Smith and the definitions in the conditions themselves. In most cases, the EIS provides detailed plans for the steps required by the conditions – the HDPE liner, the closed circuit water system, the size of the TSF, the level of existing contaminants. The conditions provide definitions for an “appropriately qualified person” who is to approve the final plans and programs, and the relevant Australian Standards with which MGT must comply.
The issues
[13]	The parties have agreed the issues of fact and law.  Although there are eight issues listed, broadly speaking, they fall under the following headings:
(a)	Water and contaminants generally;(b)	Surface water management;(c)	Groundwater contamination; (d)	Ecologically sustainable development; and(e)	Rehabilitation and contamination post-closure.[14]	The objectors submit that I should also consider some of the criteria under s 269(4) Mineral Resources Act 1989. The Minister for Natural Resources, Mines and Energy has already granted the two mining leases to which this EA relates. Mr Dunn lodged an objection to ML20547 but did not attend the hearing of the application and his objection. Although there are some common issues in the grant of a mining lease and the amendment of an EA, the criteria the Court must consider under the two Acts are separate and discrete. In this hearing, the Court’s function and powers are governed by the EPA.
[15]	The objectors raise past performance of other mines in the region, in particular the Baal Gammon mine, which they link through corporate relationships to MGT. Unlike the MRA, the EPA does not provide for the Court to consider past performance of the applicant when conducting an objections hearing. DES must refuse an application if the applicant is not a registered suitable operator. The process for an applicant to apply for registration and for DES to decide that application is not subject to review by this Court and is not the subject of an objections hearing.  Water and contaminants generally[16]	The objectors consider an open pit mine in this location will inevitably result in the release of contaminants such as arsenic, lead, zinc and sulphur into the receiving environment. They assert that this is because the open pit will fill with water and MGT will be unable to prevent run-off into waterways.[17]	MGT does not propose to use chemicals to extract the ore. It will use water, air and gravity, not arsenic or any other chemical process. If arsenic, lead, zinc or sulphur enter the receiving environment, it will not be due to the proposed mine operation. [18]	Mr Merz is a consultant specialising in water management. He examined MGT’s proposal to manage surface water in the proposed mine operations. He does not agree with the objectors’ prediction that the pit will fill with water and contaminants will be discharged to the environment.
[19]	Mr Merz referenced Chapters 1 and 8 of the EIS and the Response to Request for Information in the section of his report relevant to water filling and overflowing.[20]	Chapter 1 of the EIS is a description of the project. It contains calculations of the mine’s water requirements based on precipitation and evaporation records from 1901 to 2017. It includes a conceptual design of the TSF. It sets out the water requirements for the mine, calculates the pond size for a worst case scenario (24 hour, 100-year) rain event, and describes the closed circuit system. It gives a detailed assessment of the groundwater hydrology, based on boreholes drilled for the specific purpose of monitoring groundwater.[21]	Mr Merz was satisfied that the EIS calculations of water flows and water volumes considered the site conditions and described the accuracy limitations and uncertainty associated with the site specific data . He stated that the water management proposals were consistent with standard industry practice. He was satisfied that the mine pit would not receive stormwater run-off and, therefore, would not fill to the point of overflowing. He noted a net evaporation climate, so that the pit would have the capacity to store water that fell during extreme weather events.  In summary, Mr Merz thought that the new TSF could cope with the expected rainfall and run-off.
[22]	Mr Merz was not cross-examined and, therefore, his evidence is unchallenged. 
[23]	Chapter 3 of the EIS is an assessment of the terrestrial ecology. The report notes that the proposed mine is situated within the upper reaches of the Herbert River catchment, approximately 4 km south of the northern catchment boundary. The report concludes there will be no direct impact on watercourses as there is a 50 m buffer from all creeks included in the design criteria. It also concluded there would be no impact from the mine on any marine national park zone. [24]	Condition E19 requires a water management plan. I accept that the amended EA, informed by the EIS, sufficiently addresses any possible concerns about water contamination.[25]	Ms Ford told the Court that she had been trying to find out about “the water” for years. Ms Ford pointed to dam failures in Brazil and Peru as one of the reasons for her concerns. She mentioned the fact that water was getting scarce and becoming contaminated. She referred to the presence of contaminated dams in the area, the result of previous mining activities. None of her concerns could be linked to the proposed mine, or the proposed mining activity.
Surface water management
[26]	Mr Merz does not think that the mine development, operation and post-mining activities will mobilise sediment that will affect other waterways. 
[27]	He considered the information contained in Chapter 2 of the EIS. That chapter outlined the proposed topsoil stockpile management measures including stockpile design and management, and the proposed erosion control measures. The report noted that, although the potential impact from erosion was high, the proposed mitigation measures rendered the residual risk as low.[28]	Mr Merz referenced Chapter 10 of the EIS, which deals with waste rock management. The report outlined the way in which the WRD would be constructed to minimise erosion and noted that monitoring of surface run-off and seepage from WRDs and any rehabilitated areas will be conducted pursuant to the Mineral Waste Management Plan. [29]	Mr Merz also referenced Chapter 11 of the EIS, which deals with rehabilitation and decommissioning. The report concluded that the erosion and sediment control measures during the final phase of the mine will be like those during construction and operation. It noted that run-off would be collected and directed to sediment ponds and dams to remove suspended sediment prior to draining from the site.[30]	Draft EA conditions E17-20 and F2–4 regulate sediment control.  I am satisfied that the draft EA conditions, informed by the work already carried out in the EIS, will result in management plans that have sufficient safeguards against the possibility that sediment will affect the waterways adversely.
Groundwater contamination
[31]	Mr Sharpe noted that there had been a number of non-compliances regarding seepage and unauthorised releases from the current TSF. He also noted MGT’s submission that the upstream monitoring locations already had consistently elevated levels of aluminium and copper and occasionally elevated levels of chromium, silver, arsenic, mercury, zinc and cobalt.[32]	Dr Karen  is a geochemistShe notes that there is already a TSF and a WRD on site.  Both are unlined and, she says, pretty much unmanaged.  Dr  also notes that the current water quality on-site does not meet the local water quality objectives. She considers that leaving the site in its current state will not stop the release of contaminants to the environment. She notes that the weathered geological profile contains sulphidic material, groundwater has been encountered in the sulphidic lithology and the water quality has likely been impacted by the oxidation of these sulphides. 
[33]	Dr Mackenzie concluded that MGT’s proposal will improve the water quality in the area because: MGT proposes to create a new, lined TSF and move the existing TSF to a new location; MGT proposes to move the existing WRD to a new, lined WRD; the ore (which is a source of contamination) will be removed from the site; and MGT proposes to create a closed circuit for the water used in mining activities.lement a waste management plan.her ,Dr Mackenzie When questioned about that further work, Dr Mackenzie stated that it would be a natural consequence of the mine construction and operation revealing additional geological information and not required before the mine commenced operation.
[36]	Dr Mackenzieconcludes that the conditions are suitable to minimise environmental impact, to manage the release of hazardous contaminants and are consistent with national and international guidelines. She considers that the precautionary principle – if doubt exists as to the risk, then active management measures are to be applied – has been properly applied in this case.
[37]	Dr Mackenzie’s views were not challenged or changed by Ms Ford’s cross-examination.
r Detlef is a.He also potential for contaminants to be released into the groundwater. Dr Bringemeier considered Chapters 1, 7 and 10 of the EIS. He looked at MGT’s proposed the WRD the TSF
[39]	Dr Bringemeier’s opinion was based on the assumption that MGT would design and install an engineered HDPE liner on the base of the WRD and the temporary stockpiles. MGT proposes a HDPE liner, appropriate capping of any stockpiles and leachate containment in the TSF and WRD design. Similarly, MGT has outlined its detailed plans for the TSF to ensure the containment of contaminants.
[40]	Mr Sharpe notes the draft EA does not authorise the release of any contaminants. Ms Ford concedes that if MGT complies with the conditions, the risk of contaminants will be minimal. I am satisfied that the draft EA will adequately protect the groundwater from contamination.
Ecologically sustainable development  
[41]	Section 3 of the EPA sets out the object of the Act: 
to protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends (ecologically sustainable development). 
[42]	As the Statutory Party acknowledged, the proposed mine will create environmental harm. However, it is clear from the words of s 3 that the EPA is not intended to be a prohibition on development. Instead, the decision-maker, and by analogy, the Court, is required to balance the potential environmental harm against the potential benefits. 
[43]	Everyone accepts that this area is aThe objectors that  They submit that an open pit mine in this region is not consistent with ecologically sustainable development. 
[44]	I have considered their concerns about the release of contaminants into the surface water and groundwater in the preceding paragraphs. 
[45]	Nigel Tucker is a tropical ecologist. Although Ms Ford cross-examined Mr Tucker, his evidence was unchallenged. He considers the draft EA reflects the risks of impacts on local ecological processes and that the conditions are appropriate mitigation measures to minimise those impacts. 
[46]	Mr Tucker considers that, if the mine is operated in compliance with the conditions, it will be done in an ecologically sustainable way. He refers to a number of conditions that relate directly to the ecological sustainability of the proposed operation. 
[47]	Mr Tucker is not concerned about soil disturbance as a risk to biodiversity. He notes that the regional ecosystem (RE 9.11.10) is widespread and, excluding this site, there is around 34,000 ha of remnant land remaining. The greater glider (Petaurus volans minor) occurs within the area studied. While the mine will result in the clearing of small amounts of the species’ habitat, around 25,000 ha of suitable habitat will remain locally. That 25,000 ha will also be available to other threatened fauna species, although none has been encountered within the proposed mining lease. Ms Ford provided the court with a picture of a Bowerbird; there is nothing to suggest that the proposed mine would affect this bird’s habitat.
[48]	There is one critically endangered Acacia (Acacia purpureopetala) within the mining lease. Johannes Miller, the chief operating officer, informed the Court, and I accept, that the nearest Acacia is approximately 4 km from the proposed pit. I am satisfied that the proposed mine will not adversely affect that Acacia.
[49]	The watercourses within the lease are intermittent and, as Mr Tucker notes, there is no specialist riparian vegetation. Mr Tucker concludes that there is no aquatic connectivity of concern.
[50]	Mr Tucker also concludes that the proposed clearing will not create barriers to the movement of flora or fauna and will not cause terrestrial habitat fragmentation. 
[51]	Ms Ford’s definition of “ecologically sustainable development” has deeper roots, which were revealed under cross-examination by Counsel for MGT. She does not want multi-national companies mining in this area, squeezing out the small miners who have traditionally worked this area. She says that these companies’ operations are contrary to the traditional Australian way. 
[52]	Mr Miller told the Court of MGT’s commitment to the project and to the Mt Garnet area. MGT has already invested considerable sums in the project. The local police support the project. Both the local Member of Parliament and the local Council support the project. The mine will provide employment for the local community. While Ms Ford may have what she considers a very real concern about the influx of foreign investment, I am not persuaded that the concern is justified in this case.
[53]	Ms Ford is concerned that MGT will “just up and leave” when the going gets tough – when the market price collapses or the mining becomes unprofitable. This is a risk with any venture but Mr Miller told the Court that MGT is “in it…for the long haul”. While it is true that plans can go awry, I must consider the draft EA on the evidence currently before me and on the assumption that MGT will comply with its obligations.
[54]	Ms Ford also has a different vision for the area. In addition to her objection to mining, Ms Ford does not support the cattle industry in the area. Instead, she thinks that this land should be used for homeless people, dividing the country into 50 ha blocks, so that people in need can settle there. Whether or not a development is ecologically sustainable, or compatible with the land use, depends upon the current use, not some utopian vision which, given the present land tenure, seems unlikely.

[55]	The objectors say that will create a significant disturbance, which is because MGT 
[56]	The area has already been degraded by mining. The TSF is contaminated and leaching has occurred. MGT’s planned mine includes reworking the TSF and, in that process, rehabilitating both the existing TSF and the existing WRD.
[57]	Mr Tucker told the Court that rehabilitation is his “absolute specific area of expertise”. He is a specialist in tropical ecosystem management. He considered the reports prepared for MGT in support of the application to vary the EA conditions. That material included Chapter 11 of the EIS, which sets out MGT’s proposed rehabilitation plan. Mr Tucker agrees with the proposals and considers them to be best practice and effective. 
[58]	Condition F4 requires progressive rehabilitation. Native vegetation has already been re-established in some areas of the mining lease and Mr Tucker is confident that revegetation will generate quickly. 
[59]	Mr Miller expressed MGT’s “total commitment” to rehabilitation. As Ms Ford suggested, mining companies sometimes use fine words about rehabilitation when seeking approvals but do not always make good on that commitment in practice.  Some people would urge DES to impose stricter conditions with clearer, more measureable, criteria. However, DES seems to prefer a more flexible approach, relying on: that the results from monitoring programs must be available to the public; that it has a regulatory and enforcement function; and at the end of the day, it has access to the financial assurance regime.
Conclusion and recommendation
[60]	Ms Ford presented as a committed, diligent and thoughtful objector. She acknowledged that the draft EA was fine “in theory”. 
[61]	Ms Ford says that MGT has not provided details of how it proposes to dispose of contaminants, and how it will mine without the use of alum or some sort of alkali.  That is not correct.  Chapter 1 of the EIS provides a dot point summary of the mining process. Chapters 7 and 8 of the EIS deal with groundwater and surface water respectively. Chapter 10 of the EIS deals with waste rock management and Chapter 11 deals with rehabilitation and decommissioning.  [62]	Ms Ford conceded that the amended EA, in responding to her submissions, improved the conditions which regulate the proposed mine. She acknowledged the careful and thorough work MGT had undertaken before submitting its application. She also conceded that, if the draft EA conditions are followed, there will be no, or minimal, harm. However, she is still convinced that the mine will fail, and “there will be tears”, perhaps from something that she has not even thought about yet.
[63]	Ms Ford did not attend the site inspection. That was a missed opportunity. When Mr Miller described the proposed closed circuit for the water, his plans for cleaning the current TSF, and how MGT would extract the ore without the use of chemicals but using only water, gravity and air, Ms Ford conceded it was “an education”. 
[64]	Although Ms Ford did not so concede, I suspect that many of her misgivings were resolved once she had an understanding of MGT’s operations. I hope that Ms Ford will visit the mine, talk with Mr Miller, and come to an appreciation of MGT’s operations and the work it intends to undertake to minimise environmental harm. It seems to me that Ms Ford’s fear of the unknown, and the objectors’ unwillingness to listen to MGT’s plans, has created an unwarranted fear of the possible effects of the proposal.
[65]	Ms Ford states that Mr Dunn knows about hydraulics.  It is regrettable that, instead of making broad statements about water quality and availability, Mr Dunn did not address his concerns by reference to the hydraulic data already before the Court.
[66]	Ultimately, though, the objectors’ concerns amounted to three things. Firstly, they have a different idea of what constitutes the best use of the land in this region. Their plan requires the cessation of mining and cattle grazing so that the people in need can find a place to live. Even if the chief executive decided not to approve the amended EA, the objectors’ plan will not be realised within the current land ownership and land use regime.
[67]	Secondly, based on their experience with other miners, the objectors don’t trust MGT to comply with the conditions of the draft EA. As this Court has often reminded objectors, it must make its decisions assuming that the miner will comply with the conditions. 
[68]	Finally, the objectors are concerned with the “what if”, variously described as a “biblical event” or a “natural catastrophe”. The pit and water management measures have been designed to a worst-case, 100-year event. Mr Miller experienced the three days’ constant rain that the objectors referred to in their submission and took immediate action to raise the causeway and protect the environment. The draft EA incorporates a two-step approach. The first step is to prevent environmental harm by prohibiting the release of contaminants. The second step is to require remediation if contaminants are released. Although the draft EA cannot predict every situation, and cannot prevent all releases, I am satisfied that the regime conforms with the requirement to minimise harm while still allowing development. 
[69]	In conclusion, I must weigh the various factors that the Court must consider in making its recommendation. That means I must bring my mind to bear upon the salient facts that give shape and substance to the matter and consider how all the relevant factors weigh in the balance.
[70]	Accordingly, I recommend to the chief executive of the Department of Environment and Science, as the Department responsible for the Environmental Protection Act 1994, that EPVL00864413 be approved on the basis of the draft environmental authority for the application subject to an amendment of the date in Conditions C2, E7 (Table E3), E12, E17 and G27 (Table G1).
Order
I recommend to the chief executive of the Department of Environment and Science, as the Department responsible for the Environmental Protection Act 1994, that the amendment to EPVL00864413 be approved on the basis of the draft environmental authority for the application subject to an amendment of the date in Conditions C2, E7 (Table E3), E12, E17 and G27 (Table G1).