Jon Bennett Alton v Maximus Resources Limited - [2009] SAWC 1

Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
JON BENNETT ALTON v MAXIMUS RESOURCES LIMITED
[2009] SAWC 1
Judgment of Senior Warden Cannon
31 January 2008
MINING LAW
Exempt land - Conditions of Entry - Compensation

JON BENNETT ALTON v MAXIMUS RESOURCES LIMITED
[2009] SAWC 1

This is an extempore decision and I reserve the right to correct errors of syntax and grammar. I will not go into the facts in detail. They are set out helpfully in an affidavit of Mr Maddocks, which has been tendered. I have heard oral evidence from Mr Maddocks. The facts are not contentious, although there is some difference in the submissions and in relation to what is exempt.
It is now agreed that Mr Alton is an owner for the purpose of the Mining Act 1971 of property near the old Bird in Hand mine and the subject property is mostly covered by an exemption consequent upon his residence on the property. There are other exempt areas around dams and sheds. I do not think that they bear much upon the issues before me. The primary issue before me is that there is a proposal for exploration activity within an exemption, which is consequent upon a building used as a residence.
I make a clear distinction between the consequences of exemptions from dwelling houses and dams. The rights protected by a dwelling house are relevant to the residential status of the owners or whoever is living in it. The protection afforded to dams must be to the quality of water, protection of stock etc. They are different principles.
There is a preliminary issue as to the rights of Maximus to pursue this application at all. There are two aspects to that. One is whether Maximus was a party with the appropriate approvals in place to permit it to undertake activity on the exploration license and the second issue is whether the license holder had renewed the license at the time when the notice of entry was given.
It has been pointed out to me that s.30A (5) of the Mining Act 1971 allows retrospective renewal of an EL by the Minister, but that is of course provided the application for renewal had been made at least one month prior to the exploration of the license in accordance with s.30A (4). I do not have before me any information as to when the application for renewal was made to the Minister. It was not the issue that was here to be litigated. The issue here to be litigated was the exempt land implications.
If there is some point on the renewal, nothing I decide in this case has anything to do with that issue. If there is a problem with the renewal process, that is an issue for another day. Suffice for me to make it clear that in any order I make, I am making it on the assumption that the mining operator has the appropriate title status to undertake mining in the area.
Negotiations have occurred between the parties in good faith. They have not resolved it and there is no reason to criticise either of them in the conduct of those negotiations. These are sensitive and difficult issues. It seems to me that both parties have approached the issues conscientiously. There are lots of questions of principle involved. From the operator's point of view I am in effect not just deciding this case, I am setting a precedent for other landowners in the area who may be affected by this exploration activity.
I have recorded that most of the land is exempt and that is important. The principles dealing with objections to notice to entry for non-exempt land are quite different from the principles in dealing with an application for removal of exemption. Obviously because they both deal with the collision of quite different rights, the land owner's rights and the miner's rights over the same area of land, there will be common factors in determining both those applications, but the factors involved with exempt land are different. I turn to exempt land because that is what I am primarily dealing with.
I refer to the authorities that have been helpfully set out in the submissions before me. There are three additional authorities I have handed to parties that are more recent, but do not change the principles. They are Hillgrove Resources v Gaffney decided on 19 September 2006, Penrice Soda v Di Biase and ORS, 25 October 2006, and an earlier case of Creek v Terramin, a ruling given on 1 November 2004. The last has something to contribute to this case in that it is a similar circumstance to this case. I dealt with that case on site and it unfolded as a negotiation between the parties. It is all recorded in the judgment. The circumstance was similar to this in that it was a preliminary exploration including auger holes, sampling and the like.
The parties negotiated a payment of $200 as compensation for the intrusion and inconvenience of the sampling. I leave to one side the additional factor in the Creek case of drilling drill holes as opposed to hand auger sampling. That's a different issue and not before me today.
I note that the compensation was an agreement between the parties, not something I was called upon to fix as a principled independent determination of what was appropriate compensation, but I was a judicial officer undertaking my work and I was content that what they agreed was an appropriate agreement without having to independently assess it.
In relation to the various defences to any entry at all, I have already ruled that the validity of the exploration licence is not a matter I am determining today.
The next question is whether there is a combination of conditions and to the extent that they leave some imposition in place compensation that cannot be sufficient to remove the exemption. This is preliminary exploration and in accordance with the authorities it is clear that a combination of conditions and compensation can be constructed to permit this exploration to occur and so the exemption should be removed, but for this purpose only. The purpose is set out in the application and supporting documents and this is not a general removal of the exemption for all purposes.
There need to be conditions. I remove the exemption for the program that is described in the affidavit of Mr Maddocks of 23 January 2008. Without substituting for the detail in that affidavit I summarise that that involves walking the ground for a magnetic survey, a program of soil sampling using an auger drill of the nature of a post hole borer of about four inches diameter in the pattern of holes set out in the plan in the annexure 'I', an induced polarisation survey in the vicinity marked again on the plan in 'I' and the right to take rock chip samples on rock outcrops of interest using a handheld geological pick.
The conditions I impose are these. I start with the access vehicle. The access vehicle will be a four‑wheel drive vehicle, one at a time. There must be notice given to Mr Alton of the occasion of any work by telephoning him. Is that suitable, Mr Alton?
MR ALTON:Yes.
WARDEN:They must telephone Mr Alton not less than three days before the proposed entry.
MR COX:At the back of the affidavit, three conditions are set out that are proposed.
WARDEN:Three days, thank you. Not to conduct the exploration activities outside the hours of 7 a.m. and 5 p.m. on normal business days; not to take any dogs on the property; not to cause any fire hazard. I will impose it as a condition that it is a diesel vehicle because petrol vehicles can cause fire hazards. The vehicle to be a diesel vehicle; the vehicle is to carry a knapsack spray; to drive in a way as to avoid wheel spinning and other erosion; not to disturb stock beyond the minimum necessary to undertake the exploration work; to leave gates open or closed as they were found. Is there anything else, Mr Alton? I have gratuitously imposed these, but are there any that you think of?
MR ALTON:Other than financial, I think these were generally in line with indications Maximus were providing before. So if that's the case then I am satisfied by that.
The next question is, is the imposition of these conditions sufficient to remove the intrusion on the freehold owner? The intrusion here is the fact of it happening, as has been pointed out by Mr Alton; it is his property. I do not think there can be direct compensation for that because the miner does have rights, but, of course, not over the exempt land, so it is a factor to bear mind that an intrusion into actual exempt land around a residence is being permitted. There will not be much noise, but there will be noise. There will be holes bored by hand and dirt removed and although what is left will be restored, I accept the submission Mr Alton that these little postholes will result in some long-term minor disturbance for each of them. They will probably leave a slight indentation as the ground eventually settles.
I have heard the evidence today and I have heard it before, that there will be about a 30% excess of dirt once it has all been dug up and loosened, and you ca not get it all back in, even allowing for some being removed for the samples. Long term, there will be some effect.
There will be a generator running for about a day, a small one.
There will be a man walking around with a magnetometer and some chipping of rocks.
In totality I assess the value of that as $400. That is to be paid upon commencement. I will have the judgment typed, settled and distributed to the parties as soon as possible.
MR ALTON:I have thought of one other condition. It has been raised previously with Maximus, and I raise with the court that at certain times of the year it is less desirable to be driving vehicles etc on the property than at others. I ask for a condition as I understood that Maximus previously were intending to agree that there be agreement with me for the times that it be done.
That is, that if we have a heavy downpour and it's not a good time to be doing it on a given day thereafter, that I as I understood from my previous discussions with Maximus about this -
Yes. I make it clear. I have not tried to be exhaustive in the conditions that I have imposed. As a general comment I expect the exploration activity to be undertaken with sensitivity to the landowner's interests and the restoration of the land. I expect the landowner to be cooperative in allowing reasonable access. There should be, in addition to the three day's notice, a discussion between the parties anticipating when the activity is likely to occur, to allow the landowner a reasonable opportunity to point out any particular difficulties at any particular time, such as the land being too wet due to heavy downpour, so that vehicles would get bogged and cause erosion, particular problems with stock such as lambing and things like that.
I leave that to a sensible cooperation of the parties. I give liberty to apply if that cooperation breaks down.