Office Of The Mining Warden Annual Report - Financial Year 2006-2007
NOEL LAIDLAW
Mining Warden
26th September 2007
Pursuant to s. 105 of the Mineral Resources (Sustainable Development) Act 1990 (“the Act”), I herewith present the annual report of this Office for the financial year ending 30th June, 2007.
The Office of the Mining Warden is created under Part 11 of the Mineral Resources (Sustainable Development) Act 1990.
The current Mining Warden is Mr. Noel Laidlaw who was initially appointed in June 2000 and has, in terms of s. 96 of the Act, been re-appointed by the Governor in Council for another term of three years commencing on 23rd June, 2006.
The Mining Warden has two offices; one is located at 55 Myers Street Bendigo, the other at 10/55 Collins Street Melbourne. In addition to the Mining Warden, two staff are employed. They are Mr. Ivan Austin, the Registrar who is employed full time at the Bendigo Office and Mrs. Bronwen Herbert, Personal Assistant to the Mining Warden who is employed three days per week in the Melbourne Office.
During the Financial Year 2006-07, 12 new matters were brought before the Mining Warden.
| Nature of the matter (section of the Act) |
Number |
|---|---|
| s. 971 | 16 |
| s. 982 | 2 |
| s. 25A3 | 1 |
| Total | 19 |
1 Section 97 matters relate to disputes which are defined in s. 4 of the Mineral Resources (Sustainable Development) Act 1990 and relate to a dispute between two parties.
2 Section 98 matters relate to inquiries referred by the Minister for Energy and Resources or the Secretary of the Department of Primary Industries.
3 Section 25A relates to an inquiry made by the Mining Warden in relation to an application for a five hectare mining licence on a pre-existing Exploration Licence.
However, during the 2006-07 financial year, some 26 matters were considered, as some items were not finalised during the previous financial year.
The following table summarises the various sections of the Act, which relate to the matters.
| Number of individual matters considered |
Section of the Act |
|---|---|
| 8 | 15(6) |
| 4 | 15 |
| 2 | 9 |
| 2 | 31 |
| 2 | 43(1)(e) |
| 2 | 88 |
| 1 | 23 |
| 1 | 25A |
| 1 | 32 |
| 1 | 38 |
| 1 | 41AA |
| 1 | 78 |
Eight matters (or 30%) of the total related to questions of the ability of an applicant or a licensee being able to comply with the provisions of s. 15(6) of the Mineral Resources (Sustainable Development) Act 1990.
The next most significant group of matters related to the five disputes between licensees and private landholders under either s. 88, s. 78 or s 43(1)(e) of the Act. Such cases represented 19% of the total. These actions were brought about by both licensees and by private land holders.
There were four disputes relating to applications for licences under s. 15 (not considering those relating to s. 15(6)) and this accounted for 15% of the total.
The following table summarises the nature and status of any dispute referred to the Mining Warden under section 97. This is prescribed by s. 105 (2)(a) of the Act.
| Case Number | Nature of the Dispute | Outcome |
|---|---|---|
| 05/22 | A dispute between the holder of an exploration licence and the landowner (in this case the Department of Sustainability and Environment) in relation to the removal of tailings from the licence. | The Mining Warden ruled that the material was not the property of the licensee. However there was a serious issue in relation to the transport and use of potentially contaminated material. DSE has agreed to alter its procedures and the EPA reviewed the potential impact of these operations. |
| 06/02 | A dispute between a licensee and a land holder concerning access to private land. | The dispute has been resolved with both parties agreeing to an amended compensation agreement and certain conditions relating to access to the land. |
| 06/06 | A dispute between a licensee and a land holder concerning access to private land. | Following the involvement of the Mining Warden and conciliation between the parties, the dispute has been resolved. Clear guidelines have been established for the licensee to follow when accessing the private land in question. Compensation was paid. |
| 06/07 | A dispute between two licensees concerning the ability of one of the licensees to comply with the provisions of s. 15(6) of the Act. | The Mining Warden ruled that the evidence provided was insufficient to establish a prima face case for a dispute and therefore dismissed the matter. |
| 06/08 | A dispute between a licensee and the DPI in relation to an order made under s. 41AA of the Act. | The Mining Warden brought the parties together and a satisfactory agreement was entered into in relation to the matters in question. |
| 06/09 | A dispute between an applicant for a licence and the DPI in relation to a proposal to cancel the application. | Following discussions with the applicant, he decided to withdraw the application. |
| 06/11 | A dispute between a number of joint holders of a mining licence and the DPI. | Following the investigation into the matter, the Mining Warden ruled that much of the dispute is commercial in nature although some matters do relate to the administration of the Act by the Department. The licensees were invited to resubmit their plaint within the terms of the jurisdiction of the Mining Warden. |
| 06/12 | A dispute between an applicant for a licence and the Department relating to delays in the processing of the application. | The matter was investigated and the exploration licence was granted. |
| 06/14 | Arising from a complaint from a local land holder, the matter of whether an extractive industry operation has installed a gold recovery circuit and is recovering gold illegally was raised. | This dispute had also been the subject of a previous Ministerial reference to the Mining Warden. After collaboration with the Department, various inquiries are made and a site inspection occurs. There is some evidence that a gold recovery plant had been on site but this has subsequently been removed. |
| 06/16 | A dispute between an applicant for a licence and the Department relating to delays in the processing of the application. | The matter was investigated and the mining licence was granted. |
| 06/18 | A dispute between a licensee and the Department relating to the cancellation of a licence. The Department has informed the licensee that the licence was to be cancelled as no mining work plan had been applied for over the licence. | The licensee had been conducting bulk sampling on the site and at the time of the dispute sent some additional material for assay. The result from this last assay had been disappointing, as had the previous assays. On this basis, the licensee relinquished the licence. |
| 06/19 | A dispute between two licensees concerning an application for a mining licence. | Following the investigation and on the advice from the Victorian Government Solicitors Office, the Mining Warden found that a dispute within the meaning of s. 4 of the MR(SD)A did not exist and dismissed the plaint. |
| 06/20 | A dispute between a licensee and the Department in relation to the delay in the renewal of certain licences. | The licences involved became the subject of an investigation (case 06/23) requested by the Departmental Secretary within the provision of s. 98 of the MR(SD)A. |
| 06/21 | A dispute between an applicant for the renewal of a licence and the DPI in relation to a proposal to not renew the licence. | The Mining Warden conducted an investigation into the matter and two formal hearings took place. The Mining Warden is preparing a report to the Minister, along with a series of recommendations. |
| 06/24 | A dispute between two applicants for overlapping land as an exploration licence. | A formal hearing took place in relation to this matter. The Mining Warden recommended to the Minister that the decision taken by the Department in the awarding of priority in this matter be upheld. A recommendation in relation to the non-contested areas of land was also made to the Minister. |
| 07/01 | A dispute between a number of joint holders of a mining licence and the DPI. | Following a scoping hearing, the Mining Warden ruled that the dispute was essentially commercial and did not fall within the definitions of a dispute as provided by s. 4 of the MR(SD)A. The Department was represented at the scoping hearing and conceded a number of minor flaws in their procedures of the administration of the tenement and have since rectified the matters. |
| 7-Feb | A dispute between an applicant for the renewal of a mining licence, the Department and Parks Victoria in relation to the renewal of the licence and the authority issued under s. 40 of the National Parks Act. | Following discussions between the parties and a move to synchronise the issue of the two authorities to allow the licensee to resume operations late in 2007, the matter was resolved. |
| 7-Mar | A dispute between a land holder and a former licensee concerning the standard of rehabilitation of certain works on the private property. | The former licensee, after being contacted by the Mining Warden, has paid the landowner to finalise the rehabilitation on the site. |
| 7-Apr | Dispute between a licensee and a landholder concerning the terms of the compensation agreement in relation to operations on the private land. | The matter has been investigated and is yet to be finalised. |
| 7-May | Dispute between a licensee and a landholder concerning the terms of the compensation agreement in relation to operations on the private land. | The matter is being investigated and is yet to be finalised. |
The following table summarises the nature and status of any matter referred to the Mining Warden under Section 98. This is prescribed by s. 105 (2) (b) of the Act.
| Case Number | Nature of the matter | Outcome |
|---|---|---|
| 05/10 | Reference from the Secretary of the Department of Primary Industries as to the ability of an applicant to satisfy s. 15(6) of the Act. | The investigation is ongoing and likely to be reported on this financial year. |
| 05/16 | Reference from the Secretary of the Department of Primary Industries as to the ability of an applicant to satisfy s. 15(6) of the Act. | Following extensive investigation, the Mining Warden recommended that the company was ”fit and proper” within the meaning of s. 15(6) of the Act and that the appointed Manager under s. 47A was a competent person within the meaning of that section to manage the licence. |
| 8-Jun | An application was made by an applicant for a small mining licence to be granted without the consent of the holder of the overlying exploration licence. | Following the intervention of the Mining Warden and subsequent discussions between the parties, consent was given by the exploration licensee and the s. 25A action withdrawn. |
| 8-Aug | An application was made by an applicant for a small mining licence to be granted without the consent of the holder of the overlying exploration licence. | The Mining Warden recommended to the Minister that the waiver be granted. Part costs were awarded against the applicant in favour of the exploration licensee. |
| Jun-13 | Following a previous inquiry, report and recommendations (04/15) a 12 month review of the ongoing compliance of the licensee with s. 15(6) was requested by the Secretary. | Following investigations, review of financial and other material and interviewing several officers of the company, the Mining Warden found that the company remained compliant with s. 15(6) of the Act. |
| Jun-17 | Following representations to the Minister by a landholder and licensee concerning certain allegations against an exploration licence holder and the Department, the Minister requested the Mining Warden investigate the matter and prepare a report. | A review was conducted of all of the files some of which related back over 20 years. A hearing was conducted and several witnesses appeared in relation to the matter. The Mining Warden found that the allegations raised with the Minister against both the Exploration Licensee and the Department were not sustained. |
| Jun-23 | Reference from the Secretary of the Department of Primary Industries as to the ability of an applicant to satisfy s. 15(6) of the Act. | The investigation is ongoing and likely to be reported on this financial year. |
As required by s. 100(2) (c), the following other activities were commenced, conducted or completed during the financial year 2006-07.
In addition to the matters arising from s. 97 and 98 of the Act, four legislative matters were considered, which arose from applications made under s. 25A of the Act.
| Case Number | Nature of the matter | Outcome |
|---|---|---|
| 6/22 | An application was made by an applicant for a small mining licence for its grant without the consent of the holder of the overlying exploration licence. | The Mining Warden recommended to the Minister that the waiver not be granted. |
Other Matters
In addition to the matters that have been described above, the Mining Warden has continued to maintain strong and effective links with the significant operators and major stakeholder groups within the mining industry in this State.
Foremost of all of the stakeholders who have had significant dealings with this Office is the Minerals and Petroleum Division of the Department of Primary Industries. It is only natural that this Office should maintain a strong working relationship between itself and the Department whose job it is to regulate and promote mining in this State.
This office continues to liase closely with Victoria Police. In the previous report it was noted that Victoria Police had decided to discontinue the position of Mining Liaison Officer and to distribute the various functions of that position to other sections of the Force. This process has been ongoing in 2006-2007.
The flow of information and intelligence, which is often essential to the proper performance of the functions of the Mining Warden, has continued and has been enhanced by these changes.
This office has also maintained its links with a number of other Regulatory Agencies. These include the Australian Securities and Investment Commission (ASIC), the Australian Tax Office (ATO), the New South Wales Department of Mines and Energy and the Victorian Department of Sustainability and Environment (DSE), Workcover Victoria and a number of local Government Authorities. In all of these cases, a good rapport was established and any request for information or assistance was readily complied with.
Over the period, the Mining Warden and his staff have maintained a healthy and productive relationship with the Minerals Councils of Australia (Victorian Division), The Prospectors and Miners’ Association of Victoria and The Natural Gypsum Producers Association of Victoria.
Over the year, the Mining Warden has made a number of visits to mine sites and areas under investigation. These have included Bendigo Mining, Alliance Gold Mines at Maldon, Perseverance Mining operations at Fosterville, AGD Mining at Costerfield, exploration activities at Smeaton and Mount Stavely and tailings processing at Mount Egerton.
The Mining Warden has attended a number of presentations and seminars directly related to the Victorian mining industry. These include the Melbourne Mining Clubs Cutting Edge Series, Stakeholders Forum organised by the Minerals and Petroleum Division of Department of Primary Industries, The VIMP Launch hosted by GeoScience Victoria and the Regulators Forum hosted by Consumer Affairs Victoria.
The 2006-2007 year saw the retirement of the principal Legal Adviser to the Office of the Mining Warden Mr. John Butler from the Victorian Public Service.
He had advised this office for a number of years with the highest professional standard of legal advice. Fortunately Mr. John Cain the current Solicitor General has agreed to act as the principal Legal Officer to this office and we are very fortunate indeed in having a man of such high stature to fill this position.
Finally, I would like to publicly thank Minister Peter Batchelor and his staff for their support and co-operation with this Office and to my staff for their loyalty and unreserved assistance. Specifically I would like to thank Mr. John Butler for the work he has provided to this office. Further I would like to thank Mr. John Cain for taking the role of Principal Legal Adviser and I look forward to working with him into the future. I would also like to thank all other persons and agencies that I have dealt with during the period for the respect shown and co-operation with this Office.
