Oosen v Emu Creek Bar-Barrum Aboriginal Corporation

[2008] QLC 23

LAND COURT OF QUEENSLAND

CITATION:  Oosen v Emu Creek Bar-Barrum Aboriginal Corporation [2008] QLC0023

PARTIES:In the matter of Mining Lease 20069 Application by Neville Oosen for determination of compensation payable to Emu Creek Bar-Barrum Aboriginal Corporation.

FILE NO:MLC00213/2007

PROCEEDING:  Application for determination of compensation

DELIVERED ON:                  31 January 2008

DELIVERED AT:                   Brisbane

HEARING DATE:                 Heard on the papers

MEMBER:Mr FW Windridge, Judicial Registrar

ORDER/S:1. I determine total compensation under s.281 in the sum of Forty Dollars ($40).

2.    I direct that the miner pay the total compensation in the sum of Forty Dollars ($40) to the landowner within 2 months of notification of the renewal of the mining lease by the Mining Registrar.

CATCHWORDS:                  MINING LEASE – DETERMINATION OF COMPENSATION

Mineral Resources Act 1989, ss 279, 281

Smith v Cameron [1986-87] 11 QLCR 64

Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139

Mitchell v Oakhill and Mitchell (10.03.98) unreported

APPEARANCES:  Not applicable – Heard on the papers

Background

1. The applicant Neville Oosen (the miner) seeks the renewal of Mining Lease 20069 in the Mareeba District.  The application for renewal for a term of 5 years was lodged at the office of the Mining Registrar Mareeba on 22 June 2007.  The lease was initially granted for the extraction of granite , and will continue to be used for such purpose.  

1. The lease is located on Lot 540 on OL 450, being an occupation licence ( No. 540).  Access is through the same lot.  There is no evidence of current use although a QVAS Report indicates the land is zoned rural for cattle grazing and breeding.  The lease is over an area of 1.95ha.  I round off the area to 2ha.  

The Act

1. Section 279 of the Mineral Resources Act 1989 (“the Act”) provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court.  In this instance, no agreement has been lodged with the Registrar and the matter has been referred to the Court for determination.  

1. The matters which must be considered by the Court are set forth in s.281(3) of the Act. Although s.281 sets out the matters to be considered, it does not define any method of assessment. The following Land Court case Reports may offer some guidance in determining the approach to be adopted. In Smith v Cameron (1986) 11 QLCR 64, the Land Court held at p.74…

“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.  No doubt each case will depend on its own facts and circumstances  but it seems to me that either method is open to the valuer.”

1. In Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139, the Court at p.146 said:

“the method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift from one method to another.”

1. In considering Mitchell v Oakhill and Mitchell (10 March 1998) unreported, the President of the Land Court, referring to s.281(3) of the Mineral Resources Act, found

   “the latter section does not prescribe a method of assessment. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to.” 

The evidence

1. Neither party sought to appear before the Court, and the matter has been dealt with on the papers.  No party filed statements or submissions.  Some documentation in relation to factual matters was provided by the Registrar.  Where necessary, I have referred to these documents for the purpose of accuracy.

1. There was no formal valuation evidence to consider therefore the Court does not have that assistance in arriving at a determination.  Due to the small area involved, the cost of a valuation would far outweigh any award for compensation.  Due to the small area involved, co-use or co-occupation would not be feasible.  

1. Prior determinations and agreements for leases and claims in the Mareeba area range from about $5/ha/year to $15/ha/ year.  

1. In summary, there was no evidence called to support any claim under any other head of compensation, nor was any matter raised which would necessitate consideration under paragraphs (a), (c), (d), or (e) of subsection 4 of s.281 of the Act.

Access

1. From details provided in the copy of the application for renewal, it appears access is  through the same background tenure as the lease.  The absence of any evidence leaves the Court in a position where it can not make any award for access.  I make no award for access.

Quantum

1. In making this determination I take into account that the only other viable use of the land is low intensity grazing, apart from its current use as a low impact mine site.  A document provided by the Registrar is a QVAS Report. This Report discloses that the total leasehold area of the background tenure is 213890 hectares valued at $240,000 as at 30 June 2006.  This equates to approximately $11.25/ha unimproved value, or rounded off to $12/ha, to a value of $120 for the total lease area of 2ha.  As the lease renewal is for a period of 5 years, I allow a discounting factor of 75%.  Compensation is assessed at $120 for the period of 5 years, discounted down to $30 due to the small area of the lease and the short term of the renewal.

1. Having regard to all the circumstances, I consider that the following award will satisfy the requirements of s.281 for the term of the renewed lease for the limited purposes authorised by the renewal of the lease. Drawing on the limited evidence that is available, I determine compensation under Part 7 of the Mineral Resources Act 1989, to satisfy all heads of compensation set forth in ss.3 of s.281 of the Mineral Resources Act 1989 shall be the sum of $30 for the term of the renewal. The compensation award is therefore $30. I further award the sum of $3 under s.281(4)(e) to reflect the compulsory nature of the action taken under this part, making a total award of $33. I round off the award to $40.

Terms of payment

1. In relation to the terms, conditions and times when payments should be made, I take into account the quantum of the order, the size of the lease and the term of the renewal.  In these circumstances, I order that the miner pay total compensation to the landowner in the sum of $40 within a period of two 2 months from notification of renewal of the mining lease by the Mining Registrar.

FW WINDRIDGE
JUDICIAL REGISTRAR