Fitzgerald & Anor v Struber & Ors
[2014] QLC 29
•5 September 2014
LAND COURT OF QUEENSLAND
CITATION: Fitzgerald & Anor v Struber & Ors [2014] QLC 29 PARTIES: Patrick Charles Fitzgerald and Kay Frances Fitzgerald
(Applicants)
v. Stephen Struber and Dianne Wilson-Struber
(Respondents)
And Chief Executive, Department of Environment and Heritage Protection
(Statutory Party)FILE NO/S: MRA079-11, EPA080-11 and MRA871-12 DIVISION: Land Court of Queensland PROCEEDINGS: Application for Mining Lease and Objections; Objections to draft environmental authority; Claim for compensation for grant of mining lease. DELIVERED ON: 5 September 2014 DELIVERED AT: Brisbane HEARD AT: Decision on the papers. MEMBER: His Honour, Mr WL Cochrane ORDERS: 1. Pursuant to s 269(1) of the Mineral Resources Act 1989, I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease ML 20659 be granted over the application area for the term sought.
2. Pursuant to s 222(1)(a) of the Environmental Protection Act 1994, I recommend to the Honourable the Minister for Environment and Heritage Protection that the environmental authority be issued in terms of the draft Environmental Authority No. MIC 201161110 issued on 24 February 2010.
3. The Applicants are to pay compensation in respect of ML 20659 in the following amounts:-
(a) A one off fee of $500 for inspection of the application documents and mining lease.
(b) $680 per year for the mining lease and access.
4.The Applicants are to pay the compensation, including the one off inspection fee, within three months of the notification of the grant of the mining lease by the mining registrar and thereafter annually in advance on the anniversary of the notification.
5. I direct that the Registrar of the Land Court send a copy of these reasons to the Honourable the Minister for Environment and Heritage Protection and to the Honourable the Minister for Natural Resources and Mines.
CATCHWORDS: Mining – Mining Lease – Recommendation – Objections – Mineral Resources Act1989 ss 238, 252, 269, and 422 – Mining – Mining Lease – Determination of Compensation – Mineral Resources Act 1989 s 281 – Pryce v Struber and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 32 - Environment – draft Environmental Authority – objections – Environmental Protection Act1994 – ss 219, 220, 222, 223
Baldwin v Struber [2012] QLC 0056
Dembrowski & Anor v Struber & Anor, Re [2006] QLRT 44
Mitchell v Oakhill and Mitchell (10 March 1998)
Pryce v Struber and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 32.
Re Wilkins and Mudge [2009] QLC 0075
Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139
Smith v Cameron [1986-87] 11 QLCR 64APPEARANCES: Not applicable – Heard on the papers.
Background
Files MRA079-11 and EPA080-11 were referred by the Mining Registrar for the Mareeba District on 8 March 2011 for determination by this Court in accordance with the Mineral Resources Act 1989 (MRA) and the Environmental Protection Act 1994 (EPA) for an application for ML 20659 and associated environmental authority together with objections. File MRA871-12 was referred by the Mining Registrar at Mareeba on 16 November 2012 for the determination of compensation for the grant of the mining lease following a request by the mining lease applicants. The proposed mining lease land is on a property known as Palmerville Station located a couple of hours drive northwest of Mareeba in Far North Queensland.
The description of Palmerville Station at the time the mining lease application was made was Lot 2 on CF 10 Palmerville Holdings Parish of Combar County of Chesterfield. Subsequently the Court was advised of a revised property description of Lot 14 on SP 250040.
The area in respect of which a mining lease is sought is 26.5001 Ha.
The application is for mining lease ML 20659 and seeks a term of 15 years.
The application for mining lease pursuant to s 245 of the MRA was made by the applicants on 9 February 2010.
Within their application, the applicants identified the mining lease as being for future ore reserves because they were presently mining other resources in the area.
The proposed lease is within the local government of the Cook Shire Council and the applicants indicate that the mining lease area will be used in the pursuit of gold and silver as well as for a mining camp, freshwater dam, workshop, storage of overburden, a tailings dam, a stockpile and for the location of plant.
The overall Palmerville Station area is used for grazing by the respondents.
A compensation agreement or determination is required but a compensation agreement in a proper form has been neither entered into between the parties.
The proposed lease area also incorporates an access road with a 10 metre width.
The application also included a completed application for an environmental authority (mining activities) together with the prescribed application fee and annual fee.
Although item 15.1 of the mining lease application relating to a mining program or an outline of the use proposed of the land was not ticked in the proforma application document, the applicants did include, as an annexure, a statement of a mining program in which they say as follows:
“We will be using a semi-mobile treatment plant. It will treat about 300 mt a day for five days a week, while there is water. We will have a series of bund walls in the creek.
The plant will be 1 case W36 loader, 2 Hitachi EX300 excavators, 1 grader, 2 U.D. trucks. The washing plant is launder, trommal, small jigg, 2.5 metre hopper fed by excavator. The wash will be stock-piled from the creek at the plant to be treated every second day. Rehab will be on a weekly basis. Once the water is gone we will be using a dry plant, this works in the creek and rehab will be done daily.
There will be a smoko shed but will live at our main camp.
There will be three persons working at this lease.
There will not be any chemicals used in this mining program.
Also between the three of us we have well over 100 years mining.”
In their signed statement they say that they own four UD 10 metre tip trucks, two 30 tonne Hitachi EX300 excavators, two UH121 10 tonne Hitachi excavators, one case W36 wheel loader, one case W24 wheel loader, one Terex 72-61 wheel loader, one caterpillar 12E grader, one Dremco 720A grader, one Komatsu D155 bulldozer, one International 5 tonne truck, one Mercedes Benz prime mover truck, one 20 tonne float, one 40 tonne float for carrying machines around, three treatment plants comprising one mobile treatment plant, one semi-mobile treatment plant and one mobile day plant. They also own base camps containing sheds, a 40 foot donga, three caravans and two generator sets.
Their application does not identify with any precision the length of the access road proposed by them but a sheet setting out a GPS starting point and then a series of bearings and distances which constitute the path of the access route permits calculation of the length of the access way as being 17,318.9 metres in length with a proposed width of 10 metres so that the area occupied by the access road can be calculated to be 17.3189 Ha. It is possible but by no means clear that some of that distance may be over declared roads.
At the same time as the applicants made an application for a mining lease, they completed and submitted an application for an environmental authority (mining lease) for a Level 2 mining project.
They also certified, as was accepted by the relevant statutory party, that the proposed mining activity met the prescribed criteria for a code compliant environmental authority (mining lease) for a level 2 mining project.
In the application they certified that they would be able to comply with the standard environmental conditions of the Code of Environmental Compliance for Mining Lease Projects (the Code).
The documentation included an interim statement of account held by them with the ANZ bank which showed, generally, ongoing credit balances in that account and as at 11 December 2009 a positive credit balance of in excess of $3,000. By 23 December 2009 the balance in that account was $17,905.47.
By correspondence received by the Department of Mines and Energy at Mareeba the Department of Environment and Resource Management notified the mining registrar that the Department of Environment and Resource Management had assessed the application for the environmental authority and had decided to grant Environmental Authority No. MIC 201161110 which notice of decision together with the relevant standard environmental conditions in the Code constituted the draft environmental authority for this application.
Pursuant to the requirements of the EPA the applicants were required to publish a notice about the application giving public notice and advising that objections may be made to the grant of the authority.
The applicants carried out that public notification.
On 4 March 2011 the respondents Stephen Struber and Dianne Wilson-Struber lodged an objection to both the mining lease and the grant of the environmental authority (mining lease).
Communication with the respondents with respect to the procedures of this Court has been difficult.
It appears that the respondents do not presently have the benefit of a mail service. Previously, in other matters before this Court, mail was able to be delivered by plane but it appears that the airstrip has closed and/or the post office has declined to continue that mail service. There is no other relevant address for service for the respondents.
Correspondence sent from this Court to the respondents has been returned as undeliverable.
The Land Court went to the trouble of engaging a process server to attempt to achieve service on the respondents but that too was unsuccessful.
Other mining matters before this Court have suffered the same difficulties. See for example, Baldwin v Struber [2012] QLC 0056.
Ultimately the Court became aware that a North Queensland solicitor, Ms Anne English (of the firm Bottoms English in Cairns), was acting for the respondents in other matters and so copies of Court documents were sent to Ms English at her office in Atherton.
On or about 11 June 2013 the Registrar of the Land Court, Mr Hayden created a file note recording that he had rung the respondents telephone number on Tuesday, 11 June 2013 and was able only to listen to a voicemail advising to leave a message. Mr Hayden left a message advising the respondents that this Court had been advised by Anne English that she had recently provided to them correspondence sent from this Court to her office relating to a number of matters.
Mr Hayden’s file note records that in a voicemail message he advised that any submissions or responses requested by this Court should be delivered by 1 July 2013 (as was also reflected in the Court’s correspondence delivered by Ms English) failing which the Court would proceed to make a decision on the basis of the evidence presently held by it.
No submissions were received from the respondents in response to either the message left by the Registrar or in response to the Court’s correspondence which I am satisfied was passed on by Ms English to the respondents.
In their notice of objection form the respondents advise the following grounds of objection:-
“Not given the opportunity to inspect the APP M.L. 20659 and access rd before objection date 28 days middle wet season not complying with Environmental Code of Compliance on previous mining leases.
The proposed mining method will not comply with the environmental authority application signed off on.
The Miners have failed to comply with:
1. Mineral Resource Act 1989
2. Mineral Resource Regulations 2003
3.The Code of Environmental Compliance for Mining Lease Projects; on previous M.L.
The Mareeba Mines Department and Cairns DERM office have failed to inspect mining lease activities on a regular program on the property to enforce their legislation, on previous M.L.
The miner “Statement of Mining Program and Environmental Authority Application on M.L. 20659, shows the miner is going to continue non-compliance. The non-compliance issues are out of control.
To rectify this situation the landowner will have to engage a environmental scientist to investigate these mining leases and report on requirements needed. Engage contractors to repair to requirements and the miners be responsible and accountable for expenses caused before any compensation agreement can proceed.”
Despite being given the opportunity to place material before the Court, the respondents have failed to do so and accordingly the various failures alleged against the miners and the relevant departmental officers remain unclarified and unparticularised.
Unsurprisingly the applicants have filed no material in response to those allegations because they remain in the dark as to what the alleged matters of non-compliance actually were.
Section 268(2) of the MRA gives this Court the power to take such evidence, hear such persons and inform itself in such manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence.
Section 220 of the EPA provides as follows:
“220 Objections decision hearing
(1) The Land Court may, of its own initiative, make orders or directions it considers appropriate for a hearing for the objections decision (the objections decision hearing).
(2) The orders or directions must, as much as practicable, ensure the objections decision hearing happens as closely as possible to hearings under the Mineral Resources Act for each relevant mining tenement.”
In the present case the objection to the mining lease and the objection to the application for an environmental authority were to be heard and determined together along with the determination of the matter of compensation.
Section 222(1) of the EPA identifies the nature of the decision which I am entitled to make in respect of the environmental authority namely, a recommendation to the EPA minister that:
“…
(a) the application be granted on the basis of the draft environmental authority for the application; or
(b)the application be granted, but on stated conditions that are different to the conditions in the draft; or
(c)the application be refused.”
Section 223 of the EPA identifies the matters to be considered for the objections decision and specifically provides that I must consider the following:
(a) the application documents for the application;
(b) any relevant regulatory requirement;
(c) the standard criteria;(d)to the extent the application relates to mining activities in a wild river area – the wild river declaration for the area;
(e)each current objection;
(f)any suitability report obtained for the application;
(g)the status of any application under the MRA for each relevant mining tenement.
With respect to my obligation in the context of the objections to the grant of the mining lease s 268(3) of the MRA provides:
“(3)The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.”
The MRA and EPA do not contain any provisions which entitle me to go beyond the ambit of the relevant objections.
In all the circumstances of this case, given the ample opportunities which were provided to the parties to put further material before the Court, I am satisfied that this is a case in which it is appropriate for the Court to make a determination on the papers.
In addition to the mining registrar’s report for the Land Court, which exhibited all of the correspondence received in respect of the application by Mr and Mrs Fitzgerald, the Court also received, on 17 December 2012, correspondence from The Australian Mining and Exploration Titles Services Pty Ltd under the signature of one Fiona Abbey setting out additional information in respect of the application by Mr and Mrs Fitzgerald (“The AMETS letter”).
Section 269 of the MRA
Section 269(4) of the MRA provides that the Land Court, in making a recommendation to the Minister that an application for a mining lease shall be granted either in whole or in part, must take into account and consider a number of specified matters.
Each of the matters required to be considered pursuant to s 269(4) of the MRA are discussed below.
Section 269(4)(a) – Whether the provisions of the Act have been complied with.
In all of the circumstances I am satisfied that the provisions of the Act have been complied with and no material has been provided to the Court identifying any areas of non-compliance. The fact of the objections by the respondents to the application satisfies that they were made aware of the application by the applicants.
Section 269(4)(b) – Whether the area of land applied for is mineralised or the other purposes for which the lease is sought are appropriate.
I am satisfied as a consequence of the material lodged by the applicants with their mining lease application that the area of the lease is likely to be mineralised and that the uses proposed on the mining lease are appropriate and thus I am satisfied that the requirements of s 269(4)(b) have been satisfied.
I am further comforted in reaching that point of satisfaction by the large number of other mining leases extant on Palmerville Station.
The AMETS letter of 17 December 2012 also points out:
“The area applied for is surrounded by granted and application mining leases and well known as a historical alluvial gold mining area of Far North Queensland.
Section 269(4)(c) – If the land applied for is mineralised, whether there be an acceptable level of development and utilisation of the mineral resources within the area applied for.
The expressed intentions of Mr and Mrs Fitzgerald as set out in the annexure to their mining lease application have been quoted in paragraphs [13] and [14] above.
Having regard to the matters set out in the preceding paragraph I am satisfied that the evidence as a whole establishes that there will be an acceptable level of development in accordance with that proposed and there will be a utilisation of the mineral resources within the area applied for.
Section 269(4)(d) – Whether the land and the surface area of the land in respect of which the mining lease is sought is of an appropriate size and shape.
Having regard to the machinery and equipment proposed to be used by Mr and Mrs Fitzgerald and having regard also to the various maps and plans which were attached both to the mining lease application and to the AMETS letter of 17 December 2012 I am satisfied that the land sought to be utilised and the surface area of that land are of appropriate size and shape.
Section 269(4)(e) – Whether the term sought is appropriate.
In their application Mr and Mrs Fitzgerald explain that the lease currently being sought was to be held as a sort of back-up reserve area as they are bonafide miners and do not have any other income. Presumably they intend to move from one lease to the current lease as they reach a point where they are inclined to mine the resource.
They further explain that the reason for the 15 year term of the lease sought is that they have other leases in the area and would be working those leases first.
I am satisfied that the term of 15 years sought by the applicants is an appropriate term given the relatively small size of the proposed lease area and the manner in which this particular lease is intended to “fit in” with other leases currently being exploited by the applicants.
Section 269(4)(f) – Whether the applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease.
On the evidence before me I am satisfied, from the bank statement and from the long list of machinery and equipment, that Mr and Mrs Fitzgerald have the financial and technical capabilities to carry on mining operations under the proposed mining lease. Moreover, there is a complete absence of any evidence to establish that they do not have the necessary financial and technical capabilities to carry on the proposed mining operations.
Section 269(4)(g) – Whether the past performance of the applicant has been satisfactory.
No evidence was advanced before me either from the relevant statutory party or from the respondent objectors to suggest that there was any aspect of Mr and Mrs Fitzgerald’s previous conduct as miners which demonstrates unsatisfactory performance and accordingly I am satisfied that there is no past performance history which demonstrates any reason why their past conduct has been other than satisfactory.
Section 269(4)(h) – Whether any disadvantage may result to the rights of holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences.
On the evidence before me there are no holders or applicants for any tenures who would be disadvantaged by the grant.
In all of the circumstances I am satisfied that no disadvantage will result to the holders of any existing exploration permits or mineral development licences or any existing applicants for exploration permits or mineral development licences.
Section 269(4)(i) –Whether the operations to be carried on under the authority of the proposed mining lease will conform with sound land use management.
The evidence before me in this and other cases involving Palmerville Station establishes that the current use of the totality of the land area, apart from some existing mining leases, is for low intensity grazing and the land is otherwise capable of being used for mining purposes.
The area alienated to the proposed mining lease is a very small fraction of the total land area held by the respondents and I am satisfied that utilisation of a mining lease to extract existing mineralisation conforms with sound land use management. In any event any loss to the respondents from their low intensity grazing operation will be incorporated into any compensation agreement or determination.
Section 269(4)(j) – Whether there will be any adverse environmental impact caused by those operations and if so, the extent thereof.
I see no basis for finding that the proposed activities are likely to result in any adverse environmental impact so long as they are compliant with the requirements of the Code.
In coming to this view I have taken into account any potential impact of the proposed mining activity on the owner and occupier of the adjoining land.
In my view the objections raised by the respondents are entirely speculative and in particular the objections fail to articulate any proper basis for concern about environmental impacts.
To the extent that it may be relevant I am satisfied that the Code adequately sets out the miner’s obligations and the EPA contains sufficient provisions to enable enforcement proceedings to be taken.
I am satisfied that there are unlikely to be any adverse environmental impact caused by the proposed mining activities.
Section 269(4)(k) – Whether the public right and interest will be prejudiced.
There is nothing before me to suggest that there is any available evidence (let alone evidence adduced before me) that the public right and interest would be prejudiced by the proposed grant. Indeed, the grant of the lease will permit the timely exploitation of existing mineralisation on the subject property.
Section 269(4)(l) – Whether any good reason has been shown for a refusal to grant the mining lease.
In my view, having regard to all of the evidence referred to above and, paying particular regard to the matters set out above, I cannot identify any particular or good reason for not granting a lease over the whole of the application area.
Section 269(4)(m) – Whether the proposed mining operation is an appropriate land use taking into consideration the current and prospective uses of that land.
On the basis of my findings in respect of criteria (i), (j), (k) and (l) as set out above, I have come to the view that the proposed mining operation is an appropriate land use taking into consideration the current and prospective uses of the land.
Conclusions under the MRA
For the reasons which I have set out above my decision in this matter is to recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease No. ML 20659 be granted over the application area for the term sought.
Environmental Authority and appropriate conditions
The applicants applied for an environmental authority (mining lease) for a Level 2 mining project pursuant to the provisions of the EPA.
On 24 February 2010, the Department of Environment and Resource Management advised the applicants that they had assessed the application and had determined to grant draft Environmental Authority No. MIC 201161110.
In their application, the applicants had certified that their proposed mining activities met the prescribed criteria for a code compliant environmental authority (mining lease) for a Level 2 mining project.[1]
[1] See the Code and Schedule 1A of the now repealed Environmental Protection Regulation 1998.
The objections to the grant of the environmental authority, as referred to above, raise issues of alleged non-compliance with the conditions that attach to other mining leases held by the applicants.
They also included allegations raised against the statutory party alleging a failure to be sufficiently vigilant in respect of compliance matters.
As indicated above with respect to the application for a mining lease the respondents have been afforded ample opportunity to particularise their complaints.
Nothing has been forthcoming and accordingly the Court is left in a position where the relevant statutory authority has assessed the application, decided that it complies with the criteria necessary to categorise it as a Level 2 mining project and issued a draft environmental authority.
I have come to the view, in the circumstances of the way in which this matter has progressed through the Court and having particular regard to the ample opportunity provided to the respondents to place additional material before the Court, that the draft environmental authority requiring compliance with the Code is appropriate there being no evidence to the contrary and no evidence which would warrant the imposition of additional conditions.
In those circumstances, pursuant to s 222(1)(a) of the EPA, I recommend to the Honourable the Minister for Environment and Heritage Protection that the environmental authority be issued in terms of draft Environmental Authority No. MIC 201161110 issued on 24 February 2010.
Compensation
Section 281(3)(a) of the MRA requires the Court to settle the amount of compensation and provides that an owner of land is entitled to compensation with respect to a number of aspects of the intrusion by the miner onto that land for:
(i)deprivation of possession of the surface of land of the owner;
(ii)diminution of the value of the land of the owner or any improvements thereon;
(iii)diminution of the use made or which may be made of the land of the owner or any improvements thereon;
(iv)severance of any part of the land from other parts thereof or from other land of the owner;
(v)any surface rights of access;
(vi)all loss or expense that arises;
as a consequence of the grant or renewal of the mining lease.
The MRA goes on in s 281(4) to enable various additional factors to be included in the compensation determination but does not define any particular method of assessment of that compensation.
In a number of cases the Court has made observations about the absence of any prescription as to a method of valuation.[2]
[2]See Smith v Cameron [1986-87] 11 QLCR 64 and Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139. See also Mitchell v Oakhill and Mitchell (10 March 1998) unreported.
Pursuant to s 7 of the Land Court Act2000, this Court is not bound by the rules of evidence and may inform itself in the way it considers appropriate but, at the same time, must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other Courts.
Because of the way in which this matter has unfolded and because of the failure of the current landowners (the respondents) to place any material before the Court to assist it in its determination, I regard it as appropriate to have reference to previous decisions of this Court in respect of mining activities on Palmerville Station.
In the matter of Pryce v Struber[3] I determined in respect of a mining lease on Palmerville Station that compensation in a figure of $5/Ha should be payable in respect of the mining lease area and $2.50/Ha should be paid in respect of the access which was sought.
[3] Pryce v Struber and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 32.
In the Pryce decision I made reference to the decision of the then Mining Referee in Dembrowski & Anor v Struber & Anor, Re [2006] QLRT 44 (26 May 2006) where the Mining Referee ultimately determined[4]:
“[21]There will be a negligible effect, if any at all, on the management of the pastoral holding. Principally, only the alluvial material in the stream bed will be disturbed. This disturbance will be minimised and returned to natural contours as soon as the stream suffers flooding. I am not satisfied that any award other than a nominal award is justified. The stream bed is the property of the State. Any banks or land which are included within the lease boundaries are not part of the plan of operations and will not be disturbed. While the rate per hectare may appear to be low, I take into account that only the stream alluvium is to be mined and processed. Should the lease be terminated before expiration of the full term, the landowner has the financial benefit of some overpayment. Having regard to the foregoing, I determine compensation as follows at the rate of $10.00 per year for a renewed term of 10 years.”
[4] Dembrowski & Anor v Struber & Anor, Re [2006] QLRT 44 (26 May 2006) page 4 para [21].
Relevantly in the Pryce decision I made the following observations:-
“Judicial Registrar O’Connor has observed[5]:
[5] Re Wilkins and Mudge [2009] QLC 0075 (29 May 2009), page 2 para [5].
It is not an uncommon occurrence for either of both parties in a compensation matter before the Court to fail to comply with the Practice Direction. The absence of detailed compensation evidence from both sides clearly makes the task of the Court in determining compensation difficult. In the circumstances, I adopt the analysis of the legislative provisions, compensation principles and methodology applied by Mining Referee Windridge in Re Wallace & Ors & Evans [2006] QLRT 93.”
In Wallace & Ors & Evans, Mining Referee Windridge observed:
“The evidence
…
[8]There was no formal valuation evidence to consider therefore the Court does not have that assistance in arriving at a determination. Due to the small area involved, the cost of a valuation would far outweigh any award for compensation. Due to the small area involved, co-use or co-occupation would not be feasible, and the land owner has notionally lost the use of the lease area of approximately 8ha for the term of the renewal. However, as the intention is to extract tin, gold and gravel from the creek alluvium, the mining operation will have little or no effect on the grazing operation.
[9]Prior determinations and agreements for leases and claims in the Mareeba area for alluvial gold or tin operations range from about $1.00 per hectare per year to $3.00 per hectare per year.
[10]In summary, there was no evidence called to support any claim under any other head of compensation, nor was any matter raised which would necessitate consideration under paragraphs (a), (c), (d), or (e) of subsection 4 of section 281 of the Act.
Access
[11]From details provided in the copy of the application for renewal, it appears access is partly through the same property. There are no details of this access or the effect it will have on the operations of the landowners. Access is in all probability a track that is used by any number of persons who have leases, claims or prospecting tenures in the area. I award a nominal sum of $10.00 in relation access to the lease, noting that the term of the renewal is not of a short duration.
Blot on title
[12]The loss of land through a mining tenure of lengthy duration has been accepted by the Land Court as similar to permanent acquisition for a limited time (Smith v Cameron (1986-87) 11 QLCR). In this instance, the renewed lease is over an area of 8 Ha, and the term of the renewed lease is 21 years. In the absence of any evidence, I make no allowance for any perceived blot on title. I note that a mining lease grants the right to mine on a limited area for a limited time. Other than the right to mine, the grant of a lease does not create any interest or title in the land. There is no endorsement or registration of the lease on the background title document.”
In his decision, Mining Referee Windridge, took into account, as seems appropriate in the present case, that the only viable use of the land is low intensity grazing if pasture is available in the alluvial beds.
He concluded that mining operations on the lease would have no measurable effect on the operations conducted on the property and, while there would be some minor effect which would the noise of machinery and the movement of people and vehicles on or about the lease area and along the access road, there was no evidence of severance of one part of the property from any other part.”
My observations in the Pryce case remain entirely apposite in the present case.
The determination of compensation in the present case is somewhat complicated by virtue of the fact that the parties had, seemingly, entered into a compensation agreement on 13 August 2011.
In a hearing conducted at Cairns on 29 August 2011 consideration was given to whether or not the parties had reached agreement on the issue of compensation.
A document signed by both the applicants and the respondents was provided to the Court which purported to be a compensation agreement pursuant to s 279 of the MRA.
That agreement recorded as follows:
“As of the 1st of July a fee of $500 be charged for inspection of application mining lease and paper work involved $500
Compensation for ML 20659 being $20/HEC/Year for 26.5 HEC $530
Compensation for ML 20659 Access Rd 3 Klm at $50/KLM/Year $150
Total $1,180Main water dam is to be constructed and maintain at the miners expense for the term of the mining lease and left in a stable sound and clean state for the landowner after mining.
Mining method stationery (sic) high level
Plant site small water dam, processing plant, rock filter dam wall containing sand tailings. Stone size no larger than 6 inch or 150mm at plant site. Plant site determined by miner and landowner and capacity of processed material.
This mining lease 20659 access road to be contoured graded with the land to reduce erosion problums (sic) and a maintence (sic) program worked out between miner and landowner.
Rehabilitation completed prior to wet season.
Record photographs of the area prior to and following mining be supplied to landowner.
Monitoring of water quality at plant site dam, sample and photo before processing starts, prior to wet season and water escaping plant site dam. Be supplied to landowner every 12 months.
If non compliance occurs the miner will in occur penaltys (sic) and costs to the landowner.
If mining method changes this compensation contract is not valid.
This contract will confirm if the miner works in with the environment, the miner will be working in with the landowners.”
As I explained to the parties, that agreement was bad for a number of reasons. In the first place it deals with matters of reinstatement and environmental obligations which are more properly covered by the conditions of the environmental authority.
Secondly, it is expressed in terms which, were it a contract, it would be almost certainly found to be unenforceable because of uncertainty as to the intention of the parties.
Thirdly, the purported agreement speaks in terms of generalities which are so broad that it would be impossible to determine whether there had been compliance with obligations or not. That is to say the obligations themselves on either the miner or the landowner are not clear. One simple example will suffice to demonstrate that. The agreement provides, as set out above;
“If non compliance occurs the miner will in (sic) occur penalties and costs to the landowner.”
I indicated to the parties my concerns with the purported compensation agreement and upon hearing my explanation each of the parties accepted a proposition by which Mr Laird, the solicitor who was appearing before me for the Department of Environment and Resource Management, was willing to act as a sort of legal clearing house to create a document which reflects what they really intend to be contained within their compensation agreement and to identify what additional conditions, if any, ought be applied to the draft environmental authority.
It was also intended to resolve any inconsistencies between the Code and the conditions agreed between the parties.
Notwithstanding the willingness of Mr Laird to facilitate the creation of a document which reflected the agreed arrangements with respect to compensation, no such document has emerged.
The mining registrar at Mareeba was concerned that the compensation agreement went beyond the framework or boundaries required for a properly formed compensation agreement.
The compensation agreement was referred to the Department of Environment and Heritage Protection. On 16 November 2012 that department responded with their review of the requirements of the compensation agreement. Their position was set out as follows:
“The department’s position with respect to each requirement of the compensation agreement is:
1.“Main water dam is to be constructed and maintained at the miners expense for the term of the mining lease”
This matter is not relevant to the environmental authority.
2.“The main water dam is to be left in a stable sound and clean state for the landowner after mining”
This requirement is specifically covered by the Code of Environmental Compliance conditions 23, 29, 30, 34, 35, 38.
Additional Code of Environmental Compliance conditions which pertain to maintenance of the land are covered by conditions 3, 6, 7, 8, 9, 10, 11, 12, 13, 17, 18, 21, 23, 24, 25.
3.“Mining method stationary high level”
The department does not have any specific requirements with respect to mining methodology and therefore does not have a position with respect to this requirement.
4.“Plant site small water dam, processing plant, rock filter dam wall containing sand tailings. Stone size no larger than 6 inch or 150mm at plant site. Plant site determined by miner and landowner and capacity of processed material”.
The meaning of this requirement is not discernable and requires further clarification.
5.“The Mining Lease 20659 access road to be contoured graded with the land to reduce erosion problems and a maintenance program worked out between the miner and landowner”.
To the extent that this requirement concerns the environmental authority see the Code of Environmental Compliance conditions 17 and 18.
6.Rehabilitation completed by the wet season.
To the extent that this requirement concerns the environmental authority see Code of Environmental Compliance condition 29. It is also noted that the applicant attest in the statement of mining program within the mining lease application that rehabilitation will be conducted on a weekly basis.
7.Record photographs of the area prior to and following mining to be supplied to landowner.
This requirement is a matter to be incorporated within the Plan of Operations which the applicant must devise in accordance with condition 1 of the Code of Environmental Compliance.
8.Monitoring of water quality at plant site, sample and photo before processing starts, prior to wet season and water escaping plant site dam be supplied to landowner every 12 months.
This requirement is a matter to be incorporated within the Plan of Operations which the applicant must devise in accordance with condition 1 of the Code of Environmental Compliance. With respect to water quality, it is noted that the applicant attests in the statement of mining program within the mining lease that no chemicals are to be used in the mining program.
9.If non compliance occurs the miner will incur penalties and costs to the landowner.
This matter is not relevant to the environmental authority.
10.If mining method changes this compensation contract is not valid.
This matter is not relevant to the environmental authority.
11.This contract will confirm if the miner works in with the environment, the miner will be working in with the landowners.
This matter is not relevant to the environmental authority.
Summary
On 24 February 2010, the delegate of the department issued a Notice of Decision which provided that the environmental conditions that are to apply to this application are those contained within the Code of Environmental Compliance for Mining Lease Projects.
The department has considered the additional requirements devised by the applicant and objector and considers that these requirements are encompassed by the Code of Environmental Compliance and as such no additional conditions are required to be imposed by the Land Court.
In conclusion, it is the department’s submission that there is no basis for the inclusion of additional environmental conditions and the only outstanding matter for the Land Court to determine is the matter of compensation.”
It seems fairly clear to me that the purported compensation agreement cannot be allowed to stand and accordingly this Court needs to make a determination as to what is the compensation payable pursuant to the provisions of the MRA.
In the correspondence which was sent to the parties (and to the respondents via Ms English) I had made the following observations about the purported compensation agreement.
“This matter was last mentioned before His Honour Mr Cochrane Land Court Member on 29 August 2011. On that occasion while His Honour commended the parties for having reached an agreement which was said to deal with both environmental issues and compensation the form of the Order crossed the boundaries between the Mineral Resources Act and the Environmental Protection Act.
Following lengthy discussion before His Honour in Court it was agreed that Mr Laird from DERM would act, in a sense, as a clearing house to enable the parties to give proper notice to him of the terms that they had agreed with respect to any additions which needed to be added to the requirement for compliance with the general Code of Environmental Conduct as well as the terms of the compensation reached between the parties. The Court has heard nothing from the parties since that date. As matters stood at the time this matter was last adjourned it seemed that agreement had been reached that compensation in respect in ML20659 between the Struber’s and the Fitzgerald’s involved:-
A one-off fee of $500 for inspection of the application.
Compensation for ML20659 to be $20 per hectare per year for an area of 26.5 hectares calculating at $530 rental per year.
Compensation for access is to be $50 per kilometre per year for a three kilometre access calculating to $150.The outcome of those calculations set out above is that the agreed compensation is apparently $1,180 as a first up payment with a figure of $680 to be paid thereafter on an annual basis (which excludes the initial inspection fee).
The remainder of the Compensation Agreement provided to the Court contained conditions which do not relate to compensation but relate to, it might be said, the conduct of the mining operation on the land and some environmental issues.
His Honour expressed concern that many of the matters set out in the Signed Compensation Agreement are already encompassed by the Code of Environmental Conduct and it really required clarification as to what additional conditions might be included in any Environmental Permits.
The conditions set out in the signed agreement were as follows:- (there followed terms set out in para (95) herein)
…
Until such time as the matters with respect to the environmental conditions and compensation are properly clarified the Court is quite unable to progress the matter further. All that remains to be done is for the parties either through Mr Laird or otherwise to advise the Court as to what they propose. The matter of compensation appears to be entirely clarified and all that really remains is for clarification of what if any environmental conditions are to be imposed additional to those contained within the Code of Environmental Conduct.
Accordingly, His Honour has asked me to direct the parties to advise the Court within 21 days of their proposals following which His Honour will consider any material received and draft and deliver Orders accordingly which reflect the content of the Signed Compensation Agreement provided to the Court and which appropriately amend the Environmental Conditions.”
As indicated above no response was received from the respondents despite the Court being satisfied that the respondents had received the letter through the good offices of Ms English.
Mr and Mrs Fitzgerald did however write in terms saying:
“In answer to our phone call on 14/11/12 we have spoken between us (Patty, Denny and myself) about the compensation agreement between Steven and Dianne and ourselves. We have come to a conclusion that we would be happy to pay what the other miners pay Palmerville. We expect no more or no less than other miners.
We signed the other compo agreement as we thought we could get it done and be able to get the lease granted. But we have since found out we cannot get along with them to do this. There (sic) inspection fee is too high and we would not be paying that as it overrides EPA and other departments. We would like to have a new compensation agreement similar to other miner (sic) in the area.”
That correspondence was received by the Court on 15 November 2012.
There is no suggestion in that correspondence that a copy had been provided to the respondents or that any attempt had been made to provide a copy to the respondents so that I infer that the respondents remained ignorant of the inclination of the Fitzgeralds to back away from the dollar terms reflected in the compensation agreement entered into by them with the respondents.
The clear intimation of the correspondence sent out at my direction by this Court on 26 October 2012 was that I regarded the dollar amounts as having been agreed and clearly the respondents were entitled to rely upon that even if they decided not to reply in any formal way.
Accordingly, I come to the view that the appropriate compensation is determined in the following way:-
(a) A one off fee of $500 for inspection of the application documents and mining lease.
(b) $20 per hectare per year for an area of 26.5 hectares calculating out rental of $530 per year
(c) $50 per kilometre per year for a three kilometre access calculating to $150.
(d) The miner is to pay the compensation including the one off inspection fee within three months of the notification of the grant of the mining lease by the mining registrar and thereafter annually in advance on the anniversary of the notification.
Accordingly, compensation for the mining lease and access is determined in the amount of $680.
I note that the agreement between the parties is that access is of a distance of three kilometres which is contrasted with the figures referred to by me earlier in this decision which suggests that the access may traverse a distance of some 17 kilometres.
In my view the compensation amounts ought be paid on an annual basis and in advance with the first payment to be made within three months after the grant of the lease by the relevant Minister.
The figures embodied in the compensation determination made by me contrast somewhat sharply with other determinations made in respect of other mining leases currently on Palmerville Station but, as I say, the determination reflects dollar figures agreed between the parties.
HIS HONOUR, WL COCHRANE
MEMBER OF THE LAND COURT
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