McGrath v Emu Creek Bar-Barrum Aboriginal Corporation

[2014] QLC 40

LAND COURT OF QUEENSLAND

CITATION:

McGrath v Emu Creek Bar-Barrum Aboriginal Corporation [2014] QLC 40

PARTIES:

William David McGrath
(applicant)

v

Emu Creek Bar-Barrum Aboriginal Corporation
(respondent)

FILE NO:

MRA167-14

DIVISION:

General Division

PROCEEDING:

Determination of compensation payable for grant of mining lease

DELIVERED ON:

17 November 2014

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed on 12 November 2014 (closing date for objections under Rule 36A of the Land Court Rules 2000)

HEARD AT:

Heard on the Papers

A/JUDICIAL REGISTRAR:

LA Farrell

ORDER:

1.    Compensation is determined in the total sum of One Thousand and Sixteen Dollars ($1,016).

2.    The applicant is to pay the respondent the total compensation amount of One Thousand and Sixteen Dollars ($1,016) within two (2) months from the notification of the grant of ML 20587.

CATCHWORDS:

MINING LEASE – determination of compensation – factors to be considered – no material provided by either party

Mineral Resources Act 1989, ss 279, 281
Land Court Rules 2000, Rule 36A

APPEARANCES:

Not applicable

1. This matter involves a referral to the Land Court pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of a mining lease.

Background

1. On 30 July 2008, Mr William David McGrath (the applicant) applied for a mining lease (ML 20587) over land located approximately 6km south of the town of Petford in the Mareeba District. The purpose of the proposed lease is for the mining of tin.

2. The area of the proposed lease is identified in the application as 49.2414 ha. The lease is partly over land owned by the applicant[1] and partly over another lot, Lot 540 on OL 450 (Lot 540), which is State land held by the respondent under an occupation licence.

   [1]        The land is in fact co-owned by the applicant with a Ms Sharron Lesley McGrath.

3. The lease is sought for a term of three (3) years.

4. Lot 540 is currently used for grazing.

Relevant Legislation

1. Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court. In this matter, no agreement has been lodged with DNRM and the matter has been referred to the Land Court for determination.

2. An “owner” of land which is the subject of a mining lease and any surface access to the mining lease land is entitled to receive compensation[2]. The respondent in this case is an “owner” of land for the purposes of the MRA by virtue of paragraph (g) of the definition of “owner” in Schedule 2 of the MRA which provides:

   “owner, of land, means—
   …
   …
   (g)    for a person who holds land from the State under an Act (other than an Act about mining or petroleum) under another kind of lease or occupancy (other than occupation rights under a permit under the Land Act 1994) of the land—the person;
   

   [2] See s 279(1)(a) of the MRA.

   …”

3. The occupation rights held by the respondent in this case do not fall within the stated exception because of the effect of s 480 of the Land Act 1994 which provides that an occupation licence is taken to be a “licence” issued under that Act. It is not therefore a “permit” under the Land Act 1994. Accordingly, the respondent is entitled to receive compensation under the MRA for the grant of the proposed mining lease to the extent that it affects Lot 540.

4. Section 281 of the MRA identifies the matters which must be considered by the Court in determining the compensation. In particular, s 281(3)(a) provides that an owner of land is entitled to compensation 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.

5. Section 281(4) enables various additional factors to be included in the compensation determination. In the present case, only paragraph (e) is relevant. It provides as follows:

   “(4) In assessing the amount of compensation payable under subsection (3)—
   ….

   (e)an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount … shall be not less than 10% of the aggregate amount determined under subsection (3).”

The Conduct of the Proceedings and Evidence

1. On 21 August 2014, the Land Court registry wrote to the parties setting out a timetable for the delivery of material and submissions in accordance with Land Court Practice Direction 5 of 2013. A follow up letter was sent to the parties on 29 September 2014.

2. Neither party responded to the Court’s letters or submitted any material to the Court.

3. On 29 October 2014, the Land Court registry again wrote to the parties advising the Court’s intention to proceed with the determining the matter pursuant to Rule 36A of the Land Court Rules 2000. No objection was received from either party.

4. The absence of any compensation or valuation evidence makes the task of the Court in determining compensation very difficult. As Member Jones said in Unimin Australia Limited v Freeman[3]:

   “I realise that my determination of compensation in this case is the result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”

   [3] [2007] QLC 76 at [14].

5. Fortunately, with respect to the North Queensland area, the Court is able to obtain assistance from a number of determinations of compensation under the MRA relating to grazing land. It has been stated on numerous occasions that prior determinations in the Mareeba area range from about $5 per hectare per year to $15 per hectare per year[4].

   [4]Oosen v Emu Creek Bar-Barrum Aboriginal Corporation [2008] QLC 23; Re Fitzgerald & Anor [2009] QLC 15; Re Fitzgerald and Hughes [2009] QLC 73; Re Kimmoth & Poole [2009] QLC 117; Donovan v Struber & Anor [2009] QLC 160.

6. Most recently, Member Smith in Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor[5] allowed the sum of $10 per hectare per year for the area covered by mining and $5 per hectare per year for access in respect of a renewal of a mining lease in the Mareeba District. Member Smith relied particularly on the Court’s decision in Fitzgerald v Struber[6], which followed a formal hearing with sworn evidence from both parties.

   [5] [2014] QLC 38.

   [6] [2009] QLC 76.

Determination

1. Although it appears from the application material that the proposed lease operations will involve alluvial mining, in the absence of any detailed information about this aspect I will treat all surface area as being of equal value for the purpose of this determination despite the fact that normally the bed of a stream would be valued less than adjoining lands[7].

   [7]        Wood v Everingham & Anor [2007] QLC 126.

2. Having considered the limited material in this matter and the Court’s previous decisions cited above, and taking into account all heads of compensation in s 281(3) of the MRA, I assess compensation for ML 20587 in the sum of $10 per hectare per annum for the area covered by the mining operations and $5 per hectare per annum for access.

3. Information supplied by DNRM indicates that the size of the proposed mining area on Lot 540 is approximately 30ha, which equates to $300 per annum.

4. In relation to access, DNRM has estimated the length of the proposed access over Lot 540 as approximately 1.56km. The mining lease application specifies that the width of the access required is 10m, so this equates to an access area of 15,600m² or 1.56ha. This results in a compensation amount of $7.80 per annum for access, which I will round to $8 per annum.

5. Adding together both sums leads to a total amount of $308 per year which over a term of three years, amounts to compensation of $924.

6. Under s 281(4)(e) of the MRA, I will award an additional sum of $92 (rounded) to reflect the compulsory nature of the grant of the mining lease.

7. This results in total compensation under all heads in the sum of $1,016.

Terms of Payment

1. I order that the applicant pay the total compensation amount of $1,016 to the respondent within a period of two (2) months from the notification of the grant of the mining lease by DNRM.

Orders

1.     Compensation is determined in the total sum of One Thousand and Sixteen Dollars ($1,016).

2.     The applicant is to pay the respondent the total compensation amount of One Thousand and Sixteen Dollars ($1,016) within two (2) months from the notification of the grant of ML 20587.

LA FARRELL

A/JUDICIAL REGISTRAR