Collins v Kuku Djungan Aboriginal Corporation

[2014] QLC 37

LAND COURT OF QUEENSLAND

CITATION:

Collins v Kuku Djungan Aboriginal Corporation [2014] QLC 37

PARTIES:

Michael Dowse Collins
(applicant)

v

Kuku Djungan Aboriginal Corporation
(respondent)

FILE NO:

MRA137-14

DIVISION:

General Division

PROCEEDING:

Determination of compensation payable for grant of mining lease

DELIVERED ON:

28 October 2014

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 26 September 2014

HEARD AT:

Heard on the Papers

MEMBER:

PA Smith

ORDER:

1.    Compensation is determined in the total sum of Five Hundred and Fifty Dollars ($550).

2.    Michael Dowse Collins pay the total compensation of $550 to Kuku Djungan Aboriginal Corporation within two months of the grant of ML 20708.

CATCHWORDS:

MINING LEASE – determination of compensation – factors to be considered

Mineral Resources Act 1989

Fitzgerald v Struber [2009] QLC 76
Horn v Sunderland Corporation [1941] 2 KB 26
Mitchell v Oakhill and Mitchell (10 March 1998) unreported
Richardson v Barrett [2001] QLRT 89
Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139
Smith v Cameron (1986) 11 QLCR 64

APPEARANCES:

Not applicable

Background

1. The applicant Michael Dowse Collins (the miner) has applied for Mining Lease (MLA) 20708. The application was made on 23 November 2012 and seeks a term of 10 years.

2. The MLA is located on land which is owned by the Kuku Djungan Aboriginal Corporation (the landholder). There is also access to the MLA across the landholders’ land, such access having a length of 172 metres.

3. MLA 20708 has an area of 4.96 ha.

Principles of compensation

1. Section 279 of the Mineral Resources Act 1989 (MRA) provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the Mining Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In this matter, no agreement has been lodged with the Mining Registrar and the matter has been referred to the Court for determination.

2. The issues which must be considered by the Court are set forth in s 281(3) and (4) of the MRA.

3. Although s 281 sets out the matters to be considered, it does not define any method of assessment. In Smith v Cameron,[1] the Land Court held:

   “The section in my opinion merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation. No doubt each case will depend on its own facts and circumstances but it seems to me that either method is open to the valuer.”

   [1](1986) 11 QLCR 64 at p 74 and 75.

4. In Shaw v Heritage Holdings Pty Ltd,[2] the Land Court said:

   “The method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift from one method to another.”

[2](1992-93) 14 QLCR 139 at p 146.

1. In considering Mitchell v Oakhill and Mitchell,[3] the then President of the Land Court, referring to s 281(3) of the MRA, found:

   “the latter section does not prescribe a method of assessment. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to.”

   [3](10 March 1998) unreported.

2. In determining compensation under s 281 of the MRA, I have adopted the same approach I took in Richardson v Barrett.[4] This means that the matters set out in the section are concepts to be taken into account in determining compensation, not a notion of separate heads of compensation requiring separate and discreet treatment to arrive at an accumulated figure.

   [4][2001] QLRT 89 at paragraphs 9, 10 and 14.

3. The overriding principle is of equivalence, ensuring that, so far as money can do it, the landholders are placed in the same position as if the mining leases were not granted.[5] Of course, great care must also be taken to ensure that there is no “doubling up” of compensation.

   [5]Horn v Sunderland Corporation [1941] 2 KB 26 at 43 per Jacobs J.

The Evidence

1. Following the procedures set out in Practice Direction 5 of 2013, the Court wrote to the parties setting out a timetable for the delivery of material and submissions.

2. The miner made submissions in response to the Court’s request. He referred to a previous authority of the Land Court in determining compensation and submitted that an appropriate amount for compensation is $10 per ha per year. The miner indicated that the proposed mining will be an opening up of old workings from the late 1800’s and early 1900’s. Spoil will be dumped on existing dumps.

3. No material has been supplied to the Court by the landholder in response to the Court’s request. No valuation evidence has been provided by either party.

Determination

1. Having considered the evidence in this matter, and taking into account my decision in Fitzgerald[6] where I allowed the sum of $10 per hectare per year for the area of land covered by the mining lease and $5 per hectare per year for access, it is appropriate that I make a like award for MLA 20708 in this matter.

   [6]See Fitzgerald v Struber [2009] QLC 76.

2. As the access is very short, I have included the area of access into the MLA area and rounded same to 5 ha. Allowing $10 per hectare per year for the mining land amounts to $50 per year.

3. Taking into account the 10 year renewal term of MLA 20708, this amounts to compensation of $500, to which I award the additional sum of $50 under s 281(4)(e) of the MRA to reflect the compulsory nature of the grant of the mining lease. This results in total compensation under all heads in the sum of $550.

4. Due to the small amount of compensation involved, I order that the miner pay the total compensation of $550 to the landowner within a period of two months of the grant of MLA 20708.

Orders

1.     Compensation is determined in the total sum of Five Hundred and Fifty Dollars ($550).

2.     Michael Dowse Collins pay the total compensation of $550 to Kuku Djungan Aboriginal Corporation within two months of the grant of MLA 20708.

PA SMITH

MEMBER OF THE LAND COURT