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Unimin Australia Limited v State of Queensland.

Country/Territory
Australia
Type of court
National - higher court
Date
Jul 2, 2010
Source
UNEP, InforMEA
Court name
SUPREME COURT OF QUEENSLAND
Seat of court
Brisbane
Judge
Chesterman, CJ
Atkinson, J.
Reference number
[2010] QCA 169
Language
English
Subject
Environment gen., Mineral resources
Keyword
Mining
Abstract
Unimin conducted sand mining operations under a mining lease 1108 granted under the Act for silica sand mining purpose. Unimin’s principal interest was to extract silica sand for use in manufacturing glass.It did not require any additional permit for its extraction of such silica sand as it was a 'mineral' within the meaning of section 6(1) (Meaning of mineral) of the Act. However, Unimin’s extraction also resulted in the extraction of a lower purity silica sand, which was unsuitable for the manufacture of glass.but sold for use in specialty white mortar and white renders because of its colour or lack of colour. The principal issue before the Supreme Court was whether the lower grade sand was a 'mineral'within the meaning of the Act. The Supreme Court concluded that the lower grade sand was mined because its colour rendered it saleable and its colour was a physical property or characteristic, not one of its chemical properties. Accordingly, it was held that the lower grade sand was not a'mineral' within the meaning of the Act as it was not mined for use for its chemical properties. Unimin brought the appeal.The Court, found that: (a) all of the sand for the purpose of section 6(3)(b) of the Act should not be treated the same way merely because the lower grade sand was subsequently separated out, particularly since Unimin knew, at the time of extraction or winning, that a portion of the sand won would be used in the production of mortar and renders, rather than in the manufacture of glass. The definition of mine under section 6A extend to the separation of the two grades of mineral. This ground was therefore not sustainable. (b) Unimin intended, at the time of extracting or winning, to use the portion of the sand which would be identified as the lower grade sand, in mortar and renders, having regard to its knowledge that a portion of the sand won would not be suitable for the manufacture of glass and its intention that, once it was separated out, it would be used in mortar and renders. This ground was therefore not established. (c) The Supreme Court’s finding of the meaning of 'chemical properties' under section 6(3) being properties which contribute at least to the reactivity of the material within other materials, not extending to purely physical characteristics such as colour - albeit colour is a function of chemical composition was reasonable and reached by orthodox means. The Supreme Court had used the experts’ evidence in a reasonable manner to determine the meaning of chemical property, there was no accepted technical meaning for it and the experts’ evidence was irrelevant and inadmissible under the circumstances The Appeal Court reaffirmed the Supreme Court’s reasoning that the relevant difference between the two grades of sand was their usability, rather than their purity, for the purpose of determining its qualification as a mineral within the meaning of the Act. It noted that the lower grade sand was used for its colour (hence, its physical property), as opposed to the higher grade sand, which was used in the production of glass (which ordinarily involved chemical reaction) for its chemical properties. This ground was therefore also not established. (d) With respect to the fourth ground, the fact that it was difficult in construing the term chemical properties under the Act did not necessarily mean the term was ambiguous. (e) Other circumstantial evidence such as the conditions of the environmental authority issued to Unimin for the subject mining operation, the opinion expressed by the State of Queensland (Respondent) in relation to Unimin’s predecessor’s mining operation, and the Respondent’s acceptance of royalty payments in respect of both grades of sand, was irrelevant to the proper construction of the term mineral.
Full text
COU-156807.pdf