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To Submission INDEX TO SUBMISSION 1. Introduction…………………………………………………………………………………………..…Page 1 - 2 2. The Bills Before Parliament……………………………………………………………….….….Page 2 - 3 3. Background Issues…………………………………………………………………………….….….Page 3 3.1 The Expiry of the main Enterprise mining lease and the sale of Enterprise Mine………………………………………………………………….………Page 3 - 4 3.2 No entitlement to renewal of expired leases, including the key ML 1117………………………………………………………………………….…..…..Page 4 - 5 3.3 Sibelco’s unlawful dealings in non-mineral sand……………….……..…….Page 5 - 6 3.4 The North Stradbroke Island Protection and Sustainability Act 2011 - renewal of key expired leases……………………………………………...Page 6 - 7 3.5 Former Premier intended 2019 end date for Enterprise mine to be final and “forever”……………………………………………………………………..Page 7 3.6 The Indigenous Land Use Agreement with the State Government - 15 June, 2011……………………………………………………………………………....Page 7 - 8 3.7 The Federal Court’s recognition of native title - 4 July 2011…….….…Page 8 3.8 The Newman Government Amendments - November, 2013…….…..Page 8 - 9 3.9 The ‘cash for legislation’ deal………………………………………………………….Page 9 3.10 The Current status of QYAC’S High Court challenge…………………….….Page 9 3.11 Direct and indirect employment - 86 FTE jobs on the island from 2015………………………………………………………………………………………………..Page 9 - 10 3.12 The uncompleted Federal Environment Department investigation Into the legality of Enterprise……………………………………………………….…Page 10 3.13 The Fraser Island Inquiry………………………………………………..……………….Page 10 - 11 3.14 Particulate Matter (PM) air borne pollution from the Enterprise Mine - second largest in SEQ……………………………………………………………Page 11 4. Conclusion…………………………………………………………………………………………….….Page 11 - 12 List of attachments 1. Opinion of Peter Callaghan and Andrew Boe dated 3 November 2010; 2. Letter from CRL to ASX dated 13 May 2009; 3. Memorandum of Advice of Hon. Tim Carmody, SC dated 4 April 2012; and 4. Letter from QLS to Scrutiny of Legislation Secretariat dated 4 July 2012. 1. INTRODUCTION I write to the committee as a concerned citizen, house owner and frequent part-time resident of Point Lookout on North Stradbroke Island for the past 25 years. I have a detailed knowledge of background issues, including legal issues, relevant to a thorough assessment of the Bills, including compliance with fundamental legislative principles. I also write as a lawyer, who practised extensively in the criminal law field for nearly 30 years, regarding the administration of criminal justice in Queensland as it relates to Stradbroke sand mining company Sibelco, whose criminal responsibility for large scale potentially fraudulent activity in removing and selling non-mineral sand from the Island, is yet to be properly determined. It is astonishing that, in these circumstances, the parliament and the committee are actually being asked to consider a Bill introduced by the Katter Australia Party to further extend Sibelco’s Enterprise mining leases to 2024.1 The Katter Australia Party, which frequently claims to be concerned about foreign ownership in Australia, including in the mining industry2 has no prior association with North Stradbroke Island, which is a very long way from the electorates of its two members of the Queensland parliament, Robbie Katter and Shane Knuth. Why would the Katter Party introduce a Bill to benefit a foreign mining company when the superior Courts effectively have ruled that it engaged in substantial unlawful activity? In December, the Australian Tax Office revealed that in 2013/14 Sibelco earned $412 Million in Australia but paid no income tax here. Its profits also go overseas. Wouldn’t this situation normally be at the heart of the Katter Party concern about foreign ownership? In November 2009 and July 2010 respectively, in a civil case brought by Sibelco in attempting to avoid criminal charges, the Supreme Court of Queensland and the Court of Appeal unanimously ruled that Sibelco, then called Unimin, had no lawful authority to sell non-mineral sand as it had been doing for a decade. In the words of former Chief Justice de Jersey, with whom the other two judges agreed (my underlining):- (4)The principal issue before the learned primary Judge was whether the lower grade sand is a “mineral” within the meaning of the Mineral Resources Act. If it is then, as with the higher purity sand, it may be extracted without the need for permits and approvals under the Integrated Planning Act 1997 (now the Sustainable Planning Act 2009 (Qld)), and lawfully sold; if not, the contrary position applies. (5)The learned Judge held that the B grade silica sand is not a mineral, essentially because, in terms of the legislation, it is not “mined for use for its chemical properties”: it is mined because its colour renders it saleable, and its colour is not one of its chemical properties, but simply a physical property or characteristic. The Court of Appeal agreed with Justice Applegarth, the Trial Judge. Curiously, neither court was referred to the Forestry Act provision requiring a permit under that Act, in addition to any other approval, before non-mineral sand could be taken and lawfully sold. Also, again curiously, neither Court was informed that a former Mines Minister was implicated in an alleged authorisation of early sales of non-mineral sand. That evidence first emerged in a media release issued by Sibelco after these superior court proceedings. It followed from these court decisions and other known facts that Sibelco engaged in the unlawful 1 Enterprise mine leases 1117 and 1120 current expiry date is 31 December, 2019 – Schedule 1 of the Act. 2 https://www.kattersaustralianparty.com.au/move-to-stop-the-sell-off-of-australia/ 1 removal and sale of up to 100,000 tonnes of non-mineral sand for at least a decade (eg see 7.30 report referred to below). A conservative retail value of the sand sold by it and its predecessor may be in the vicinity of $80 million.3 The unlawful sales continued even during Sibelco/Unimin’s criminal trial4, normally something treated very seriously by our criminal courts, if brought before them. It has not yet been brought before the courts. Sibelco’s criminal responsibility remains unresolved. Although two “extraction” charges were laid within days of Justice Applegarth’s decision, a charge under the Forestry Act was not commenced until mid-2010 and one day after the limitation period expired. Accordingly it was dismissed by the Magistrate.5 A five year prosecution of the “extraction” charges failed on legal technical grounds in 2015.6 They were charges which were destined to fail. Charges which focused on the unlawful sales which followed the removal of the sand from the ground, were called for. As a matter of law, there were no genuine prospects of convictions on the “extraction” charges because there were clear technical defences available which were known to the prosecuting department. I refer to an article I had published in the Brisbane Times last year for further details.7 No steps have yet been taken to prosecute Sibelco on stealing and fraud/misappropriation charges, despite a legal opinion from highly respected specialist criminal law counsel that there is a prima facie case against Sibelco on these charges. A copy of their legal opinion dated 3 November, 2010 is attached. The unresolved criminal responsibility for what may be large scale fraud and theft should mean that further extension of the company’s sand mining leases is completely inappropriate. For further discussion about Sibelco’s unlawful dealings in non-mineral sand, see section 3.3. Imagine the outrage if a Bill was introduced into parliament which, if passed, would hand a multi-million dollar benefit to an ordinary citizen’s business when there existed unresolved criminal responsibility relating to substantial unlawful activity over a decade, in the same business. Why should it be different when the intended beneficiary is a multi-national mining company? In 2011 and 2013 this serious issue fell on deaf ears. Will it do so again? 2. THE BILLS BEFORE PARLIAMENT The Government’s Bill seeks to repeal the 2013 Newman Government amendments and re-instate the 2019 end date for the Enterprise mine legislated by the Bligh Government in 2011, with a slightly increased Restricted Mine Path of 344 hectares, in lieu of 337 hectares. The Katter Australia Party’s Bill proposes an amendment to the Newman Government amendments that would potentially lead to another extension of sand mining at this mine to 2024. It is potential, because no application can be made for the extension of Enterprise mining leases until 2019 in the case of ML 1117 and ML 1120, and later in the case of ML 1105. This is because section 11C of the current Act states that an application for renewal cannot be made more than 12 months before the current expiry date. In the case of ML 1117 and 1120, under Schedule 1, the current expiry date remains at 31 December, 2019. 3 http://www.news.com.au/national/north-stradbroke-sand-mining-company-should-be-charged-with-theft/story-e6frfkp9-1225830672751 4 http://www.abc.net.au/7.30/content/2014/s4145570.htm 5 http://www.sclqld.org.au/caselaw/QMC/2012/016 6 http://www.sclqld.org.au/caselaw/QMC/2015/002 7 http://www.brisbanetimes.com.au/comment/stradbroke-sand-mining-company-prosecuted-on-the-wrong-charges- 20150430-1mx98h.html 2 The Katter party claims its Bill is a compromise, but this ignores the relevant history of previous extensions of mining as well as the many other circumstances which should render a further extension out of the question. It is also noteworthy that the Bill was immediately welcomed by Sibelco.8 The company obviously would see 2024 as a stepping stone to its main goal of mining out the remaining heavy minerals, whether it takes until 2027, with a further extension by a future government, or 2024 (see the CRL letter referred to below) with two dredges operating outside the area proposed for mining by the Katter Party.
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