O'Shane v Indigenous Land Corporation

[2016] QLC 76

LAND COURT OF QUEENSLAND

CITATION:

O’Shane & Anor v Indigenous Land Corporation
[2016] QLC 76

PARTIES:

Patrick Daniel Michael O’Shane & Hamish William Bergerson
(applicants)

v

Indigenous Land Corporation
(respondent)

FILE NO:

MRA247-16

DIVISION:

General Division

PROCEEDING:

Determination of compensation for grant of mining lease.

DELIVERED ON:

8 December 2016

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 5 September 2016.

HEARD AT:

Heard on the papers

JUDICIAL REGISTRAR:

GJ Smith

ORDERS:

1.     In respect of ML 100068 compensation is determined in an amount of $440 per annum.

2.     The applicants pay compensation to the respondent the amount set out in Order 1 within three months of the date of grant of the mining lease by the Department of Natural Resources and Mines and in each subsequent year on the anniversary of the date of grant.

CATCHWORDS:

MINING LEASE – referral – grant – mining lease area –  access – determination of compensation – absence of expert or valuation evidence – use of Court judgments for determination purposes.

Mineral Resources Act 1989 s 279, 281

Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor [2014] QLC 38

Re Fitzgerald & Anor v Struber & Anor [2009] QLC 76

Unimin Australia Limited v Freeman [2007] QLC 76

Wallace & Ors v Bottomer & Ors [2015] QLC 23

Wills v Minerva Coal Pty Ltd [No.2] (1998) 19 QLCR 297

APPEARANCES:

Not applicable

1. This proceeding concerns a referral to the Land Court by the Chief Executive, Department of Natural Resources and Mines (DNRM) pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of Mining Lease 100068 (ML 100068).  

Background

1. The applicants, Patrick Daniel Michael O’Shane and Hamish William Bergerson (the miners) seek the grant of a mining lease located on land described as Lot 198 on SP 273726 (the subject land).  The relevant area comprises a mining lease area of 37.98 ha and a 3.3 ha access track across the subject land which is owned by the Indigenous Land Corporation (the landowner).  These areas will be rounded to the next full hectare for calculation purposes.

2. The subject land is located approximately 9 km south-east of the town of Laura within the Cook Shire local government area and is used for grazing purposes. 

3. The specific Land Court reference and tenure details are set out as follows: 

Court Reference	Tenure ID	Area	Term	Lease Purpose
MRA247-16	100068	37.98 ha	15 years	Gold/Tin

1. On 15 February 2016 a Certificate of Application for ML 100068 was issued by the Mineral Assessment Hub.

Relevant Legislation

1. Section 279 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. Section 281 MRA identifies the matters which must be considered by the Court when determining 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.”

3. 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).”

4. The assessment to be undertaken in accordance with s 281 was discussed in Wills v Minerva Coal Pty Ltd [No.2][1] as follows -

   “It is beyond question as I have written above that the primary source of law is the statute under consideration and it seems to me that the learned Member acknowledged this when he said:

   ‘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.’

   Section 281 MRA neither prescribes nor suggests a method of assessment or valuation either. The selection of an appropriate method is a matter for the relevant expert, however, there is one warning that I should post. If the expert was to approach the assessment of compensation by simply accumulating figures assessed independently under each of the items listed in s.281(3)(a)(i) to (vi) and without regard to the prospect of a matter being dealt with under more than one item, the chance that there will be a duplication of items assessed will be high.”

   [1](1998) 19 QLCR 297 at p 315.

The Conduct of the Proceedings and Evidence

1. On 1 July 2016, the Land Court registry wrote to the parties setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No. 6 of 2015. 

2. No material was received by the Court from either the miners or the landowner in accordance with the timetable set out in the correspondence from the Court dated 1 July 2016. In the circumstances I consider it is appropriate to proceed to determine the issue of compensation pursuant to s 281 of the MRA.

Determination

1. In the absence of any materials or other valuation evidence, I consider the views of Member Jones [as he then was] regarding the nature of the assessment process in Unimin Australia Limited v Freeman[2],  are relevant:

   “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.”

   [2][2007] QLC 0076.

2. Accordingly, it is considered that the most helpful guide for determining compensation is provided by Land Court determinations from the local mining district which have been based on evidence tested by cross examination, full submissions and where an inspection of the relevant lease area has been undertaken as part of the proceedings. 

3. For the present determination I consider that Fitzgerald & Anor v Struber & Anor[3] (Fitzgerald) is the most instructive judgment for assessment purposes from within the Mareeba mining district. Fitzgerald involved multiple applicants and resulted in a determination of $10 per ha per annum in respect of mining areas and $5 per ha per annum for access areas.  In a later decision of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor[4] the Court determined the sum of $10 per ha per annum for the mining lease areas and $5 per ha per annum for access.  More recently in Wallace & Ors v Bottomer & Ors[5], Member Smith determined compensation at $10 per ha per annum for the mining area of a renewed lease within the Mareeba mining district.

   [3][2009] QLC 0076

   [4] [2014] QLC 38.

   [5] [2015] QLC 23.

4. Based on these earlier judicial determinations of compensation I consider that $10 per ha per annum in respect of the mining area and $5 per ha per annum in respect of the access area is an appropriate amount of compensation in respect of ML 100068.

5. The assessment of compensation in respect of proposed ML 100068 concerns both mining lease and access areas. Mapping data provided by DNRM confirms that the area of the mining lease within the subject land is 37.98 ha (rounded to 38.00 ha) with an associated access track of approximately 3.3 ha (rounded to 4 ha).

6. The final determination in respect of ML 100068 is as follows:

   Area covered by mining lease – 38 ha @ $10/ha          = $380.00 per annum

   Area covered by access –     4 ha @ $  5/ha      = $  20.00 per annum

   add s 281(4)(e) re: compulsory nature of grant  = $  40.00 per annum

   Total= $440.00 per annum

Orders

1. In respect of ML 100068 compensation is determined in an amount of $440 per annum.

2. The applicants pay compensation to the respondent the amount set out in Order 1 within three months of the date of grant of the mining lease by the Department of Natural Resources and Mines and in each subsequent year on the anniversary of the date of grant.

   GJ SMITH
    JUDICIAL REGISTRAR