Maximus Resources Ltd v Jon Bennett Alton, Arthur James Fowler & Richard Gordon Teusner (NO.3)

[2010] SAWC 1

Wardens Court of South Australia

(District Court Administrative and Disciplinary Division)

MAXIMUS RESOURCES LTD v JON BENNETT ALTON, ARTHUR JAMES FOWLER & RICHARD GORDON TEUSNER (NO.3)

[2010] SAWC 1

Judgment of Senior Warden Dr Cannon

25 March 2010

ENERGY AND RESOURCES - MINERALS - MINING FOR MINERALS

Owner of land, notice of entry, preliminary point

MAXIMUS RESOURCES LTD v JON BENNETT ALTON, ARTHUR JAMES FOWLER & RICHARD GORDON TEUSNER (NO.3)
[2010] SAWC 1

1. This is a further application filed on 21 December 2009 by Maximus Resources Ltd (Maximus) for permission to undertake a drilling program over land that is exempt from mining due to the proximity of dams, springs and residences. 

2. The circumstances of exemption are the same as set out in my judgment between the same parties on 4 July 2008.  In addition, there was an objection to entry and the use of declared equipment by the owner of the land where the drilling program is proposed, Mr Richard Gordon Teusner.  His land has been leased for two years from 1 January 2009 to J.S. and M.A. Teusner (Exhibit R1, annexure 3) for $75/ha per annum.  Other than the additional interest of J.S. and M.A. Teusner, and the timing of the program, the proposal is broadly the same as that on which I ruled in that earlier judgment.  Those differences led me to require a fresh application but I have accepted the evidence from the earlier case and I expect my judgment here to be consistent with my earlier judgment. 

3. This matter was listed for directions on 2 February 2010 and set for trial on 3 March 2010.  There was an adjustment to 4 March 2010 and then an adjournment of the trial date.  The trial continued and was heard on 16 March 2010.

4. Whilst writing my judgment I have noted that the application is framed as a removal of exemptions to mining.  As a preliminary point I raise the owners’ rights to object to entry (ss.58A and 59 of the Mining Act 1971 (SA)) and compensation (s.61):

   61—Compensation

   (1)     The owner of any land upon which mining operations are carried out in pursuance of this Act shall be entitled to receive compensation for any economic loss, hardship and inconvenience suffered by him in consequence of mining operations.

   (2)     In determining the compensation payable under this section, the following matters shall be considered:

   (a)any damage caused to the land by the person carrying out the mining operations; and

   (b)any loss of productivity or profits as a result of the mining operations; and

   (c)     any other relevant matters.

   (3)    The amount of the compensation shall be an amount determined by agreement between the owner and the mining operator or, in default of agreement, an amount determined, upon application by an interested party, by the appropriate court.

   (4)     The appropriate court, in determining compensation under this section, shall take into consideration any work that the mining operator has carried out, or undertakes to carry out, to rehabilitate the land.

   (5)     Upon the hearing of an application for compensation under this section, the appropriate court may order a mining operator to carry out such work to rehabilitate the land as the Court thinks fit.

   …

5. ‘Owner’ is broadly defined as (s.6):

   “owner” of land means—

   (a)     a person who holds a registered estate or interest in the land conferring a right to immediate possession of the land; or

   (b)     a person who holds native title in the land; or

   (c)     a person who has, by statute, the care, control or management of the land; or

   (d)     a person who is lawfully in occupation of the land;

6. J.S. and M.A. Teusner have a leasehold interest which puts them in lawful occupation in terms of the definition.  They should be parties and notice of entry (s.58A) and notice of the intention to use declared equipment (s.59) should be given to them.  Absent that, mining cannot proceed.  This may have occurred and they may have then objected.  It may be that the earlier notice to Mr R.G. Teusner is sufficient.  In any event, the rights being pursued here are well known to the parties.  I canvassed them in my earlier judgment of 4 July 2008 (at para.38):

   Mr Teusner’s position is different.  His rights come as an objection to entry and to drilling.

7. I quoted the relevant sections.

8. Mr John Teusner gave evidence and pursued arguments for compensation.  I have heard fresh evidence and submissions and, for the reasons I gave at paras.36-41 of my July 2008 judgment, I remain of the view that I should let the proposed exploration proceed on conditions to minimise the effect of the mining operation and compensation for those effects that cannot be removed.  I am still considering the appropriate conditions and terms of compensation to be imposed.  However, if I am correct that J.S. and M.A. Teusner, who are in lawful occupation of the land, are not parties, then no order I make will bind them.  If they have not received the notices, or have effectively received notices and raised objections, then mining cannot proceed.  I invite Maximus Resources Ltd to consider this position whilst I continue to consider the matter.  I give liberty to apply.