Melvin v McClymont

[2022] QLC 20

LAND COURT OF QUEENSLAND

CITATION: 

Melvin & Anor v McClymont [2022] QLC 20

PARTIES:

Leslie Melvin
(applicant)

Janet Melvin
(applicant)

v

Malcolm McClymont
(respondent)

FILE NO:

MRA062-22

PROCEEDING:

Determination of compensation payable for grant of mining claim

DELIVERED ON:

18 November 2022

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 4 November 2022

HEARD AT:

On the papers

MEMBER:

JR McNamara

ORDERS:

1.       In respect of the application for grant of MC 300372, compensation is determined in the amount of Two Hundred and Twenty Dollars ($220) per annum representing the diminution of the use made or which may be made of the land ($200 plus 10%).

2.       The holder of MC 300372 must pay the amount set out in order 1 to the respondent within one (1) month of the date of the grant of MC 300372 by the Department of Resources, and then annually on the date of the grant of MC 300372 by the Department of Resources.

CATCHWORDS:

ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the applicants had applied for the grant of a mining claim situated on the land of the respondent – whether and, if so, what compensation was payable under s 85 of the Mineral Resources Act 1989 – where compensation was decided on little to no evidence

Mineral Resources Act 1989 s 85

APPEARANCES:

Not applicable

[1]Etheridge Shire is a region historically known for gold mining. In recent times gemstone mining has become popular in the area. Leslie and Janet Melvin (the Melvins) are two such gemstone miners. The Melvins have applied for MC 300372 (the Mining Claim).  Their application was first lodged in June 2021. The Mining Claim is located about 30km north-west of the township of Mount Surprise, on the western boundary of Mount Surprise Station, a pastoral property owned by Malcolm McClymont.

[2]Before the Mining Claim can be granted, the Melvins must agree compensation with Mr McClymont, or if not agreed, compensation must be determined by the Land Court on the basis of the statutory criteria in the Mineral Resources Act 1989 (MRA).[1] Despite the parties apparently reaching agreement, no compensation agreement has been signed and lodged with the Department of Resources. This gives the Land Court jurisdiction to decide compensation.

[1]Mineral Resources Act 1989 s 85.

The Mining Claim

[3]The area of the Mining Claim is about 0.09 ha. It is accessed via a 230m long track that connects to O’Brien Creek Road. The Mining Claim is near several other mining claims which are held by other parties. The material that has been filed provides little other information regarding the Mining Claim. The Resource Authority Public Report indicates gemstones, specifically topaz, are to be mined.

Mount Surprise Station

[4]There is very little information about Mount Surprise Station, its size, the scale of enterprise, or its development or use particularly in the area of the Mining Claim. Based on farming trends in the area, the Station is likely used for cattle grazing.

Issues

[5]Compensation must be determined on the basis of the statutory criteria. The criteria are directed at any or all loss a landholder might suffer if they are deprived of the land, if their land is devalued, if the use of the land is diminished, if their land is severed, and for any loss and expense suffered as a result of the mining claim.

[6]At the review of this matter on 5 August 2022, Mr Melvin and Mr McClymont informed the Court that they would continue to communicate with each other in order to reach an agreement as to compensation. In a subsequent review on 16 September 2022, which Mr McClymont did not attend, Mr Melvin informed the Court that an agreement had been reached. Mr Melvin stated that he had posted a signed copy of a compensation agreement to Mr McClymont but he had not received a response.

[7]In the circumstances orders were made for material to be filed to enable the Court to determine compensation.

[8]In apparent compliance with the orders a copy of what appears to be the compensation agreement that Mr Melvin referred to at the 16 September 2022 review was filed (the draft agreement). No other material was filed by either party.

[9]The draft agreement states that the miner would pay the landowner a flat amount of $200 pa for the ten year term of the mining claim. The basis for deciding that this amount is appropriate compensation is not stated.

[10]The draft agreement includes a raft of conduct measures that the miner would undertake with respect to the Mining Claim, including:

1.          an agreement to maintain the access road to the Mining Claim;

2.          that the miner would abide by the principles outlined in the Department of Natural Resource and Mines Land Access Code (2016) and the Livestock Production Assurance Program;

3.          all vehicles and machinery entering the property (assumed to be Mount Surprise Station) be washed down or otherwise free of plant and animal materials;

4.          the miner remain on the granted access and tenement, with any planned deviations to be discussed with the landowners;

5.          only the miner, employees and contractors access the Mining Claim for the purpose of mining; and

6.          existing station roads are kept clear and unobstructed at all times.

[11]Matters concerning conduct such as those listed above are not compensable items. They are not outcomes that I can order.  Some might be conditions of grant under the MRA, or perhaps obligations under the Environmental Protection Act 1994, or relevant to the Land Access Code. I would however observe that having offered these conduct measures, it is reasonable for Mr McClymont to expect that the Melvins will comply with them.

What compensation is payable for deprivation and/or diminution of the land: s85(5)?

[12]As mentioned above, I have little material upon which to determine compensation. Relevant matters regarding the Mining Claim include: that it is very small in size, being 0.09 ha; mining for topaz on a claim of this size is likely to be small-scale and conducted seasonally; gemstone mining usually occurs in dry riverbeds; and there is unlikely to be any significant impact on grazing activities as a result of mining activities.  There will be no deprivation of the surface of the land, no diminution of the land’s value, and any diminution in its use will be minor.  There will be no severance of any part of the land, and no evidence of loss of surface rights of access.  There is no evidence of any other loss or expense arising from the grant of the Mining Claim.

[13]Taking these matters into account and acknowledging the apparent agreement of the parties that $200 pa for the term of the grant is appropriate compensation, I award that amount.

Additional amount to reflect the compulsory nature of the payment: s85(6)(e)

[14]Pursuant to s 85(6)(e) of the MRA, in assessing the amount of compensation payable under s 85(5), an additional amount shall be determined to reflect the compulsory nature of the action taken which shall not be less than 10% of the aggregate amount determined under s 85(5). I award the usual uplift of 10%. 

Conclusion

[15]Compensation must be paid to Mr McClymont as follows:

Head of compensation	Amount ($)
Diminution of the use made or which may be made of the land: s 85(5)(c) – per annum for the term granted	$200
Additional amount to reflect the compulsory nature of the payment: s 85(6)(e)	10%

Orders

1. In respect of the application for grant of MC 300372, compensation is determined in the amount of Two Hundred and Twenty Dollars ($220) per annum representing the diminution of the use made or which may be made of the land ($200 plus 10%).

1. The holder of MC 300372 must pay the amount set out in order 1 to the respondent within one (1) month of the date of the grant of MC 300372 by the Department of Resources, and then annually on the date of the grant of MC 300372 by the Department of Resources.