Fitzgerald v Kuku Djungan Aboriginal Corporation
[2014] QLC 52
•9 December 2014
LAND COURT OF QUEENSLAND
CITATION: Fitzgerald v Kuku Djungan Aboriginal Corporation [2014] QLC 52 PARTIES: Edmund Gerald Fitzgerald
(applicant)v Kuku Djungan Aboriginal Corporation
(respondent)FILE NOS: MRA026-14
MRA028-14
MRA029-14DIVISION: General Division PROCEEDING: Determination of compensation payable for grant of mining leases DELIVERED ON: 9 December 2014 DELIVERED AT: Brisbane HEARD ON: Heard on the Papers
Decision reserved 5 September 2014HEARD AT: Brisbane MEMBER: WA Isdale ORDER: 1. In the case of ML 20713 compensation is determined in the amount of One Hundred and Twenty Dollars ($120) per annum for the whole area of 5.1052 ha.
2. In the case of ML 20714 compensation is determined in the amount of Twenty Dollars ($20) per annum for the whole area of 0.8591 ha.
3. In the case of ML 20716 compensation is determined in the amount of One Hundred and Eighty Dollars ($180) per annum for the whole area of 8.2336 ha.
4. The applicant miner shall pay the respondent landowner the annual compensation within 30 days of the date of grant of the relevant tenure and thereafter on the date of the anniversary of the grant of the relevant tenure.
CATCHWORDS: MINING LEASE – determination of compensation – factors to be considered
Mineral Resources Act 1989, ss 279, 281(3) and (4)
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 (1986-87) 11 QLCR 64APPEARANCES: Not applicable
Background
These matters arise from the granting of mining leases. As the parties have not been able to agree on the amount of compensation payable by the applicant miner to the respondent the Mining Registrar has, as required by the Mineral Resources Act 1989 (MRA), referred this to the Land Court to be determined. Tenure ML 20713, Court file MRA026-14, has a surface area of 5.1052 ha and is for a term of 10 years. It is located 60 km west north-west of Mareeba. Tenure ML 20714, Court file MRA028-14, has a surface area of 0.8591 ha and is similarly located. Tenure ML 20716, Court file MRA029-14, has a surface area of 8.2336 ha and is located approximately 30 km north-west of Mareeba. All are in respect of silver ore, gold, and tin ore.
In all cases, the parties have requested that the Court determine compensation on the papers.
The respondent’s position
The solicitors for the respondent, P & E Law, have provided written submissions. They advise that the respondent landowner relies on their letter dated 19 May 2014 and the affidavit of Michael Douglas Neal, solicitor, which was provided with it. The solicitors inform the Court that their client has considered the compensation statement provided by the applicant, Mr Fitzgerald. The material discloses that the respondent opposes the granting of the tenures, a matter not before this Court, and is of the view that the lands are of particular importance, including some of sacred importance to the people such that no amount of money could fully compensate for mining activities on it. Exhibited to the affidavit of Mr Neal is legal, tenure, and mapping information of assistance to the Court. The respondent does not agree to any mining taking place on the land. The respondent’s solicitors point out that the tenures fall within the National Heritage listed Ngarrabullgan cultural heritage site. The solicitors inform the Court that the respondent does not have the resources to provide more material in relation to the importance of the land to the members of the respondent or to Djungan people as a whole. The respondent asserts that it is not appropriate for it to discuss monetary compensation in view of its ethical stance against mining on the land. The respondent’s solicitors state that it will abide by the orders of the Court, save any relating to costs.
The applicant’s position
The applicant miner has provided the Court with a compensation statement and offers to pay the respondent compensation at the rate of $10 per hectare per year.
The applicant miner’s offer is based on the following submissions, which are set out in the applicant miner’s compensation statement:
“1) These mines are old underground mines that have been worked in the late 1800’s early 1900’s and have been costeaned by bulldozer and have been drilled by a mining company in the 1980’s. It is narrow vein mining and we intend reopening the old workings on a similar scale as the old timers, with two or three men working on the project.
2) Any waste rock that cannot be returned underground will be dumped on existing old dumps, photos of old dumps and existing surface disturbance attached.
3) It is planned that the ore, about 60 tons per week, will be trucked via existing bulldozed tracks and public road to another site for processing
4) The leases cover a surface area of approximately 15Ha, we estimate that about 50% of that area has previously been disturbed, and expect that we will disturb little more than that in future.
5) The recent Land Court ruling Fitzgerald v Struber (2014) QLC 20, handed down compensation at $10.00 per hectare plus an additional amount of $1.00 per hectare, for a mining lease on Palmerville Station, Kondraprangia Station is the same type of country and is about 40klms away in a straight line. I have attached a copy of that Land Court ruling.
6) I was a joint holder and manager of a 100,000 Ha grazing lease running around 4000 head of cattle between 1983 and 2000, in an area where there were a few small mining operations, and I saw first hand how little impact small mining has on a grazing operation on a grazing lease of this size. In light of the miners ready access to heavy machinery, the mining activity can actually be a positive for the grazing management, in earthworks and fire fighting etc, if a cooperative approach is adopted by both parties from the outset. We are applying to lease approximately 15 ha on the edge of KDAC’s total lease area of 148 thousand Ha and we feel the impact on their day to day operation will be insignificant.”
The applicant has provided photographs of existing dumps and disturbance and a copy of the Decision of this Court in Fitzgerald v Struber.[1]
[1][2014] QLC 20.
The solicitors for the respondent have informed the Court by their letter of 28 August 2014 that the respondent has considered the miner’s compensation statement.
The compensation
The Court must settle the amount of compensation in respect of the matters set out in s 281(3)(a) of the Act. They are:
“(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 applicable law
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 these matters, no agreements in registrable form have been lodged with the Mining Registrar and the matters have been referred to the Court for determination.
The issues which must be considered by the Court are set forth in s 281(3) and (4) of the MRA.
Although s 281 sets out the matters to be considered, it does not define any method of assessment. In Smith v Cameron,[2] 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.”
[2](1986-87) 11 QLCR 64, 74 – 75.
In Shaw v Heritage Holdings Pty Ltd,[3] 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.”
[3](1992-93) 14 QLCR 139, 146.
In Mitchell v Oakhill and Mitchell,[4] 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.”
[4](10 March 1998) unreported.
In determining compensation under s 281 of the MRA, the Court has adopted the same approach that Deputy President Smith (as he then was) took in Richardson v Barrett.[5] The matters set out in the section are matters to be taken into account in determining compensation, rather than being separate heads of compensation requiring separate treatment to arrive at an accumulated figure.
[5][2001] QLRT 89, 9, 10, 14.
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.[6] Care must also be taken to ensure that there is no “doubling up” of compensation. This Court is a specialised Court and will apply its own expertise in order to assist it to perform its function.
[6]Horn v Sunderland Corporation [1941] 2 KB 26, 43 per Jacobs J.
Section 281(3) of the MRA states that the Land Court must determine compensation in terms of money only.
Determination of compensation
The Court is required to determine the compensation which the applicant miner must pay to the respondent landowner. In the present proceedings it is not able to make any order which would give effect to the respondent’s wish that mining not take place. The Court must determine compensation on the basis of the material which has been provided to it.
Taking into account the material provided, which has been referred to above, compensation is assessed in relation to all the categories of compensation set out in s 281(3) and (4) of the MRA. Compensation in relation to all categories except s 281(4)(e) is determined in the amount of Ten Dollars ($10) per hectare per annum. The additional amount under s 281(4)(e) to reflect the compulsory nature of the action taken under the MRA will be a further Ten Dollars ($10) per hectare per annum. In the case of each tenure, the calculation will be made on the basis of each area being rounded up to the next whole hectare.
Orders
1. In the case of ML 20713 compensation is determined in the amount of One Hundred and Twenty Dollars ($120) per annum for the whole area of 5.1052 ha.
2. In the case of ML 20714 compensation is determined in the amount of Twenty Dollars ($20) per annum for the whole area of 0.8591 ha.
3. In the case of ML 20716 compensation is determined in the amount of One Hundred and Eighty Dollars ($180) per annum for the whole area of 8.336 per ha.
4. The applicant miner shall pay the respondent landowner the annual compensation within thirty (30) days of the date of grant of the relevant mining lease in the case of the first year of the relevant tenure and thereafter on the date of the anniversary of the grant of the relevant tenure.
WA ISDALE
MEMBER OF THE LAND COURT
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