Tuesday, 30 June 2009

CRL sand case update (mid 2009)

In our last newsletter we reported the unanimous decision of the Redland City Council in August, 2008, to reject a proposal by a Consolidated Rutile Ltd subsidiary to take sand from the island and sell it to the construction industry. Such sand is not a ‘mineral’ under the Mineral Resources Act. The application involved the establishment on the island of a significant new extractive industry, which on the figures provided by the mining company could last for 98 years. The mining company claimed in its application to the Council that up to 10 extra jobs would be created if its proposal was approved.

CRL has appealed the decision. In early April, there was a two-day hearing of several preliminary points of law which could bring the appeal to an end. The court has reserved its judgement.
However, there has been another development, which will become very significant if the court decides the preliminary points in CRL’s favour. Prior to the State election on 21 March, several FOSI and SIMO members emailed the Premier, Anna Bligh, endorsing a leaflet authorised by FOSI, SIMO and the Quandamooka Land Council, which called for her assistance in preventing the sand export proposal. Members should have received a copy of this by email (if you did not please advise us of your email address for future contact).

Premier supports Redland Council decision

The response sent on Premier Bligh’s behalf by her senior policy advisor on 16 March, 2009, included these statements:
“The Bligh Government supports Redland Shire Council's decision to refuse Development Approval to remove and sell sand from Stradbroke Island” 
“The Bligh Government recognises that Stradbroke Island is a valuable natural asset to the people of south-east Queensland. The Bligh Government also recognises that this is an area that needs to be protected and preserved for future generations.”
The Premier’s response also supported the development of eco-tourism and the creation of more national park on the island. The Bligh government has yet to act on its support for the Council’s decision.

Government support for decision to reject CRL’s proposal
The Bligh government support for the Council decision is hardly surprising. There are five key reasons which explain both the unanimous council decision and the Bligh Government’s support for it. They are:-

1. The unacceptable loss of amenity in Dunwich resulting from the hundreds of extra truck trips. Even on CRL’s figures, there would be an additional 134 truck movements passing along the route through Dunwich each day. That is, additional to the mineral sands operation, which generates 62 truck movements per day on the same route. However, if smaller than 30 tonne trucks were used (which many suspect), there would be about 200 extra truck movements per day – more than a 300% increase in trucks!

2. The land from which it is proposed to take the sand is zoned ‘conservation’ in the Redlands Planning Scheme, approved and gazetted by the State Government in 2006. The proposed activity, not surprisingly, is listed as ‘an inconsistent use’ in this Scheme;

3. This land is not designated as a sand resource extraction area in state government regional plans which are intended to set aside areas of land for various purposes in a planned and rational way, having regard to the needs of the wider community.

4. The same land is subject to an unresolved native title claim in the Federal Court of Australia and the sand export application to Council was not even supported by the consent of the registered native title claimants.

5. The proposed use of the CRL Dunwich special lease on Moreton Bay to store the sand and load it onto barges would deter tourists and others because of the resulting unacceptable increases in noise and dust levels and the chaotic traffic conditions caused by the vast increase in truck movements. This loading dock lease is located immediately adjacent to the ferry and barge terminal where the vast majority of tourists arrive, along with residents and others. 

Government steps which will result in withdrawal of appeal
The state government can demonstrate its support for the council decision and in the process bring about a speedy end to the appeal case in one of 3 ways –

(a) Treating the sand sale agreement/permit issued by then DNR Forestry department in October, 2007 as terminated.

(b) Indicating that it will not amend the two state government leases at Dunwich to allow the land to be used for construction sand purposes.

(c) Declining to renew two expired mining leases 1117 and 1121, where the sand proposed to be taken is situated.

If the state government communicates its intention to support the council decision in any one of these ways, CRL’s subsidiary will have no alternative but to withdraw its appeal.

Mineral sand stock piles on the island ... sand miners want to shift the focus of their NSI operations from high value/low volume mineral sand mines to high volume/low value construction sand quarries – at the island’s expense. 
None of these issues forms a part of the Council decision and therefore are not issues in the appeal before the Planning and Environment Court. They are all solely within the jurisdiction of the State Government and outside the Court’s powers. Only the State Government can make a decision on each of these – decisions which need to be made soon in the interests of all concerned. Otherwise, if the preliminary points are decided in favour of the mining company, the case is scheduled to proceed to a full hearing, resulting in all parties devoting scarce resources to a very expensive and potentially lengthy court appeal.

Available steps
The available steps will now be addressed in some more detail:

(a) The Forestry Act sand sale permit
The State Forestry Department entered into an agreement with the CRL subsidiary in October, 2007 authorizing the mining company, subject to Council approval, to take and sell the sand (which is owned by the state under the Forestry Act), in return for the princely sum of $1 per tonne for royalties. This paved the way for the application to council for development approval.

The agreement was entered into without any public consultation – a totally unacceptable and undemocratic arrangement. Its terms were kept secret and a copy of it was not provided by the mining company to the Council nor our legal representatives, despite the general obligation to disclose all relevant documents, until our lawyers threatened a court application to force its disclosure in March, 2009. Minutes before the deadline for the court application, it was finally disclosed.

In the light of the pre-election, pro- council decision statements made on the Premier’s behalf, it is possible that the Forestry Department was on a frolic of its own when it entered into this secret agreement with the mining company. Given the sensitivities – the area is zoned ‘conservation’, the unresolved native title claim, the fact that NSI is almost universally acknowledged for its splendid bio-diversity and in need of protection etc, it is surprising the agreement was made. Fortunately, it was expressed to be subject to development approval by the Council with no mention of any appeal rights. So all the government has to do is rely on the council rejection decision (which it says it supports) and treat the agreement as terminated. Inevitably, that would result in the appeal being withdrawn.

(b) The two Dunwich state government leases
CRL proposes to use the Moreton Bay lease (next to the ferry and barge terminal) to store and load the sand onto barges. It also proposes to use the Dunwich leased land, which houses its offices and weighbridge, for its construction sand plans.

The written terms of each lease restrict the land’s use to ‘mineral sand’ purposes. The Land Act prohibits use for any other purpose than that specifically stated in the lease. The mining company realises that it cannot proceed with its plans, even if successful in court, unless the State government agrees to amend the leases. It has made an application to the government to amend the wording of the lease terms to include ‘construction sand’ purposes as a permitted use. The Redland Council, as the responsible planning authority, has been consulted by the government as to its views and, unsurprisingly, consistent with its rejection of the proposal, the Council has given notice that it opposes the amendment of these leases. Naturally it expects its decision rejecting CRL’s plans to be respected and supported by the State Government. There is only one way for the government to do that – refuse the application to amend the terms of the leases. Once that occurs, CRL would have no alternative but to withdraw its appeal, resulting in substantial savings, particularly to Redland ratepayers, who may otherwise be required to expend up to half a million dollars in legal costs defending the council’s decision.

(c) The two expired mining leases
There are two expired mining leases 1117 and 1121 which are particularly relevant because the sand which CRL proposes to remove and sell is located on these two expired leases. CRL has lodged applications with the government to renew these leases and FOSI and others have indicated that their renewal is opposed. Put simply, if the Government declines to renew those leases, as it should, in accordance with the relevant provisions of the Mineral Resources Act, then that will end the construction sand proposal and open the way immediately for a new era for North Stradbroke Island - national parks and eco-tourism and the resulting greater number of permanent jobs, as opposed to mining and its temporary and ever-dwindling number of jobs. 

Conclusion
It is to be hoped that the Bligh government will act soon on its support for the council decision. If the mining company is successful in the preliminary

legal points stage – judgement of the court is currently reserved – the case will be scheduled to proceed to a very expensive full hearing. Assuming the Bligh government intends to honour its support for the Council’s decision, it needs to communicate its intentions without delay. If it does so, CRL will have no alternative but to withdraw the appeal.

Shrinking dunes ...if the State won’t act to stop CRL’s construction sand operations, many millions of tonnes of sand will be removed from the island (above). Photo: CRL. 
This is an unusual case. The court appeal relates only to the decision of the Council refusing its approval of CRL’s application. A success in court for the mining company does not translate into its plans proceeding, as is usual with court successes. The Planning and Environment court has no role to play in the State government’s decision on the applications to renew the expired mining leases, nor the State government’s decision on the applications to amend its leases at Dunwich, nor its decision on treating the sand sale agreement as at an end. All three are solely within the State government’s jurisdiction. The unanimous decision of the Redland City Council and the Bligh government’s support for that decision, logically leads to only one outcome.

In these circumstances the government does have a duty to bring what would be wasteful disputation to a speedy end. We hope this occurs soon.