Pryce v Struber
[2013] QLC 32
•7 June 2013
LAND COURT OF QUEENSLAND
CITATION: Pryce v Struber and Chief Executive, Department of Environment and Heritage Protection [2013] QLC 32 PARTIES: Malcolm Scott Pryce
(applicant)
v Stephen Struber and Dianne Wilson Struber
(respondents)and
Chief Executive, Department of Environment and Heritage Protection
(statutory party)FILE NOS: MRA287-12, EPA288-12 and MRA336-12 DIVISION: General Division PROCEEDING: Hearing for Application for Mining Lease and Objections to its Grant.
Objections to draft Environmental Authority.
Determination of Compensation on Grant of Mining Lease.
DELIVERED ON: 7 June 2013 DELIVERED AT: Brisbane HEARD AT: Mareeba MEMBER:: His Honour, Mr WL Cochrane ORDER: 1. I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease ML 20682 be granted over the application area.
2. I recommend, pursuant to Environmental Protection Act 1994, to the Honourable the Minister administering the Environmental Protection Act that the Environmental Authority be issued in terms of the draft Environmental Authority issued on 9 September 2011 without amendment.
3. The miner Malcolm Scott Pryce pay compensation in the sum of One Hundred and Seven Dollars and Fifty Cents ($107.50) per annum, such sum to be paid to the landowners within two months of the notification of the Grant of the Mining Lease by the Mining Registrar and thereafter annually in advance on the anniversary of the notification.
CATCHWORDS: Mining – Mining Lease – Recommendation – Objections – Mineral Resources Act 1989 ss 238, 252, 269, and 422
Environment – draft Environmental Authority – objections – Environmental Protection Act 1994 – ss 219, 220, 222, 223APPEARANCES: Mr Pryce in person.
No appearance by Mr S Struber or Mrs D Wilson Struber.
Statutory Party excused from appearing.
These decisions relate to an application made by Malcolm Scott Pryce for a mining lease (ML 20682) on a property located in Far North Queensland the lease of which is owned by Stephen Struber and Dianne Wilson Struber.
The matter which became files number MRA287-12 and EPA288-12 was referred by the Mining Registrar on 4 July 2012 for the Court to consider, pursuant to s 265 of the Mineral Resources Act 1989, the objections to the grant of the mining lease and the objections to the amendment of the Environmental Authority (Mining Lease or Mining Claim).
The matter which became MRA 336-12 was a referral by the Mining Registrar for the Mareeba District of the matter of the determination of the appropriate compensation to be paid pursuant to s 279(5) of the Mineral Resources Act 1989.
The Struber property is otherwise known as Palmerville Station and is used for low intensity grazing purposes.
Its formal description is Lot 14 on SP 208316. According to other documentation before the Court the description of Palmerville Station may have been amended from Lot 14 on SP 205316 to Lot 14 on SP 250040. I propose to use the formal description contained within the application at the time it was made but acknowledge that once the mining lease comes to be registered it will be in respect of the amended description of the land.
The mining lease application identifies the area applied for as being 19.5668 Ha in a locality 11 kilometres south east of Maytown on the Palmer River.
The land is located in the Cook Shire Local Government Area.
On 31 August 2011 Mr Pryce by his agent made an application for amendment for an Environmental Authority (Mining Activities).
It appears from the application for amendment of the Environmental Authority that Mr Pryce was the holder of a Exploration Permit EPM 19278 in respect of which he had already been issued an Environmental Authority MIC 202945511. His application was to add the mining lease area to that existing Environmental Authority.
In his application for an amended Environmental Authority Mr Pryce describes his mining activity in the following terms:
“Small scale alluvial gold mining in the lower parts of the creek bed by removing minerals and replacing creek bed material in a level compacted way. The proposed lease site follows the riverbed for about 1.2 kilometres and while slightly irregularly shaped it is generally rectangular.”
The lease had been marked out on 30 August 2011 and a term of 10 years was sought by Mr Pryce during which time he intended to seek to recover gold and silver.
Proposed on the mining lease area was a camp site and the location of a mobile wash plant.
The proposed access to the mining lease site was from gazetted road named Whites Creek Road and runs for a distance of 9.101 kilometres on a three metre width so that it constitutes a total area of 2.7303 Ha in addition to the mining lease site proper. The total lease area is thus 22.2971 Ha.
By letter dated 6 September 2012, the Statutory Party, The Department of Environment and Heritage Protection, wrote to the Land Court filing, by mail, the Statutory Party’s Statement of Position and requesting that they be excused from attending the hearing because they intended to rely upon their written Statement of Position and could, if necessary, provide the Court with further submissions.
By correspondence from the Court dated 6 September 2012 the Statutory Party was advised that they had been excused from attending the hearing.
The application by Mr Pryce identified his proposal as a Level 1 Mining Project and accordingly he was required to comply with the Code of Environmental Compliance (Mining Lease) which the Statutory Party had issued in January 2001.
On or about 9 September 2011 the Department of Environment Resource Management (as the Statutory Party was then known) issued a Notice of Decision identifying the Code of Environmental Compliance for Mining Lease Projects as constituting the Draft Environmental Authority for Mr Pryce’s application.
On or about 29 June 2012 Stephen Struber and Dianne Wilson Struber lodged an objection pursuant to ss 71 and 260 of the Mineral Resources Act 1989 and ss 216 and 217 of the Environmental Protection Act 1994 objecting both to the application for a Mining Lease and to the application for an Environmental Authority.
The grounds of objection raised by the Struber's were as follows:
“This miner has illustrated with paperwork provided he will not comply with the Environmental Code of Compliance. The map supplied by Mines Office of Mareeba are inaccurate and misleading.”
The facts and circumstances identified on the Objection Form by the Struber's as underlying their objection were as follows:
“Non compliance with the Environmental Protection Act ss 153, 154, and 155.
Code of Environmental Compliance for Mining Lease Projects ss 29, 34, 35.
This illustrates the MLA on southern side of river there is two tracks and starting point is not from a gazetted road.”
It is noteworthy that on the objection form where the pro forma required the identification of a postal address the Struber's wrote “no postal address”.
As indicated above on 1 August 2012 the Mining Registrar at Mareeba referred the mining lease application to this Court for determination of the question of compensation for the grant of a mining lease pursuant to s 279(5) of the Mineral Resources Act.
That was consequent upon a request by the applicant Malcolm Pryce for compensation to be determined by this Court in conjunction with the objections hearing referred to in the paragraph above.
The matters were set down for hearing by this Court in September 2012 and letters were sent to the parties setting out the requirements for the filing of statements of evidence at a time prior to the hearing.
The correspondence to the Struber’s was returned to the Land Court as being undeliverable.
There are a number of other matters before this Court involving the Struber’s and Palmerville Station and the Court has had considerable difficulty attempting to effect service of relevant documents on the Struber’s.
At my direction a record of all attempts made by this Court to contact the Struber’s to effect service of the Notice setting out the requirements of the Court and identifying the hearing day was made by this Court and included in the Court file.
The efforts made by the Court include posting and ringing telephone numbers identified by the Struber’s as contact numbers for them. A number of messages were left by Deputy Registrar Laaja on the Struber’s answering machine.
Notwithstanding the efforts of the Court, no contact was made by the Struber’s.
When the matters came on for hearing at Mareeba on 14 September 2012 there was no appearance by the Struber’s and no material had been filed by them.
Having given consideration to the effect of Rule 4 of the Land Court Rules which provides that where the Land Court Rules do not make provision for a matter in relation to a proceeding in the Court and where the Uniform Civil Procedure Rules 1999 would provide for such a matter then those Uniform Civil Procedure Rules apply in relation to the matter with necessary changes.
I was satisfied that I was entitled to proceed in accordance with the provisions of Rule 476 of the Uniform Civil Procedure Rules which deals with the non-appearance of the defendant at a trial. Accordingly, I made directions that I propose to continue to consider the matter and to determine it in the absence of the party having been satisfied that they had been given adequate notice.
There was a complication insofar as Mr Pryce who was unfamiliar with the requirements of the Court had not, himself, filed any material in support of his application.
I made Orders that Mr Pryce was to deliver to the Struber’s a statement including any relevant annexures setting out his contentions with respect to the objections lodged by the Struber’s and with respect to the issue of compensation and that he was required to attempt to serve the Struber’s by posting, by regular post, the statement and the annexures to two different addresses which the Court had as being appropriate to communication with them.
On or about 26 October 2012 Mr Pryce, by email, filed further material in the Court.
He subsequently on 27 October 2012 sent to the Court details of attempts by him to send by registered post material to the Struber’s.
Those attempts were unsuccessful. The various documents were sent “return to sender” by Australia Post.
It might be noted that the addresses used by Mr Pryce in his attempts to serve his material upon the Struber’s with various addresses notified to the Court by the Struber’s together with an address which the Court had become aware, consequential upon other matters involving the Struber’s was an address which had been used by them.
There now seems to be no impediment to the Court hearing and determining the matter on the material which now has been placed before it.
Section 268(2) of the Mineral Resources Act gives this Court the power to take such evidence, hear such persons and inform itself in such a manner as it considers appropriate in order to determine the relative merits of the application, objections and other matters and shall not be bound by any rule or practice as to evidence.
So far as the consideration of the objection to the Environmental Authority is concerned s 220 of the Environmental Protection Act 1994 (EPA)[1] as in force at September 2012 provides as follows:
“220 Objections decision hearing
(1) The Land Court may, of its own initiative, make orders or directions it considers appropriate for a hearing for the objections decision (the objections decision hearing).
(2) The orders or directions must, as much as practicable, ensure the objections decision hearing happens as closely as possible to hearings under the Mineral Resources Act for each relevant mining tenement.”
[1] Now s 188 – see Environmental Protection Act 1994 as in force 3 May 2013.
In the present case the objection to the Mining Lease and the objection to the Application for an Environmental Authority are to be heard and determined together.
Section 222 of the EPA[2] identifies the nature of the decision which I am entitled to make in respect of the Environmental Authority namely that:
[2] Now s 190 – see Environmental Protection Act 1994 as in force 3 May 2013.
“…
(a) the application be granted on the basis of the draft environmental authority for the application; or
(b)the application be granted, but on stated conditions that are different to the conditions in the draft; or
(c)the application be refused.”
Section 223 of the EPA[3] identifies the matters to be considered for the objections decision and specifically provides that I must consider the following:
(a) The application documents for the application.
(b) Any relevant regulatory requirement.
(c) The standard criteria.(d)To the extent the application relates to mining activities in a wild river area – the wild river declaration for the area.
(e)Each current objection.
(f)Any suitability report obtained for the application.
(g)The status of any application under the Mineral Resources Act for each relevant mining tenement.
[3] Now s 191 – see Environmental Protection Act 1994 as in force 3 May 2013.
With respect to my obligation in the context of the objection to the grant of the Mining Lease s 268(3) of the MRA provides:
“(3)The Land Court shall not entertain an objection to an application or any ground thereof or any evidence in relation to any ground if the objection or ground is not contained in an objection that has been duly lodged in respect of the application.”
The Acts (MRA and EPA) do not contain any provisions which entitle me to go beyond the ambit of the relevant objections.
Section 269 of the MRA
Section 269(4) of the MRA provides that the Land Court in making a recommendation to the Minister that an application for a mining lease shall be granted either in whole or in part, must take into account and consider a number of specified matters.
Each of the matters required to be considered pursuant to s 269(4) of the MRA are discussed below.
In considering each of those matters I have, of course, had regard to the material filed by Mr Pryce and it should be noted there was no material filed by Mr and Mrs Struber which dealt at all with any of the matters set out in s 269 of the MRA.
Section 269(4)(a) – Whether the provisions of the Act have been complied with.
The application for a mining lease was accepted by the Mining Registrar at Mareeba and in the material delivered to me by the Mining Registrar there was no suggestion that any of the requirements of the MRA had not been complied with and, indeed, the material was accompanied by a certificate of application for mining lease 20682 together with a copy of certificate of public notice. The application by Mr Pryce attracted objections from Mr and Mrs Struber and accordingly I am satisfied that, in particular the public notice requirements have all been complied with.
In all of the circumstances I am satisfied that the Acts Provisions have been complied with.
Section 269(4)(b) – Whether the land applied for is mineralised or the other purposes for which the lease is sought are appropriate?
In his application for a mining lease Mr Pryce asserts that the area is mineralised and the Court is aware of a number of other mining leases which exist on Palmerville Station. The area has, historically, been demonstrated to be mineralised and has been subject of a prospecting permit issued to Mr Pryce.
I am satisfied that the area of the lease is likely to be mineralised and thus that the requirements of s 269(4)(b) have been satisfied.
Section 269(4)(c) – If the land applied for is mineralised, whether there be an acceptable level of development and utilisation for the mineral resources within the area applied for?
In his additional information provided pursuant to s 265 of the Mineral Resources Act Mr Pryce describes his proposal as “small scale alluvial gold mining in the lower parts of the creek bed by removing minerals and replacing creek bed material in a level compacted way.
In his original application for a mining lease Mr Pryce set out the mining program proposed, the method of operation and an indication of when mining operations might be expected to start.
His application stated as follows:
“The intended method of operation is a small scale Environmentally friendly mobile mine. The methods we have adopted are from previous experience with mining in New Zealand and Canada where the environmental impact is monitored and scrutinised very heavily. These methods are very low impact on the environment. Our method of operation consists of excavating mineral rich materials from the river system using a conventional backhoe/excavator in and around rock bars on the main riverbed. They are immediately washed with a mobile rotating trommel screen with the 10mm minus material fed directly into a Horizontal Centrifuge collecting all heavy minerals. This method does away with sluice style of collection and allows the sand tailings to be fed directly back to the riverbed where they once lay. Following on top of the sand tailings is the 10mm oversize material to lock down the sand tailing by way of a pivoting conveyor. This method is by far the best possible way to mine a River system and some of the benefits are that you remove the material by digging, then fill the dug area with sand tailing, then lock the surface with small and large rock. This then allows the rock to settle back into the sands naturally and no sand will cause problems down stream. Revegetation can occur naturally as the sands are still in the system and have not been removed. Also the rehabilitation occurs as you slowly move you mobile plant down the river system. This method does away with truck haulage causing a bigger impact on the environment and reduces the amount of operating machinery. Mining will occur only after the wet and as it will be mobile then so will be the camp. No infrastructure will be required nor wash plant site.
Operations will start immediately upon granting of the Mining Lease subject to weather conditions and wet season etc.”
I am satisfied that the evidence as a whole establishes that there will be an acceptable level of development, in accordance with that proposed and there will be a utilisation of the mineral resources within the area applied for.
Section 269(4)(d) – Whether the land and the surface area of that land are of an appropriate size and shape?
As indicated above the area proposed for the mining lease is generally rectangular lying along the creek bed and accordingly I am satisfied that the land sought to be utilised and the surface area of that land are of appropriate size and shape.
Section 269(4)(e) – Whether the term sought is appropriate?
Mr Pryce has applied for a term of 10 years which, in all of the circumstances is not an unusually long period of time for a mining lease. Further he explains that “due to the mineral bearing material positioned in the main Palmer River, wet seasons are longer than usual until waters retreat. With the congested rock bars crossing back and forth the retrieval of material is slow. So leaving extra headway for rehabilitation and unforseen circumstances I anticipate the period applied for is sufficient.”[4]
[4] See paragraph 3.4 of the Application for a Mining Lease.
Accordingly, I am satisfied that the term of 10 years sought by the Applicant is an appropriate term given the relatively small size of the proposed lease area.
Section 269(4)(f) –Whether the Applicant has the necessary financial and technical capabilities to carry on mining operations under the proposed mining lease?
Mr Pryce attached to his application for a mining lease a statement detailing his financial resources which included a photocopy of his bank statement showing a balance in excess of $100,000.
In Attachment 2 of his application Mr Pryce asserted as follows:
“Financial resources required for the project are minimal due to the size of the lease applied for and the fact that all machinery and plant costs have already been covered. Monies required while setting up on site are kept on hand and will easily cover all costs until such time as profit returns on the mining project.”
Earlier Mr Pryce had set out details of his approach to the proposed mining activity and satisfies me that he has sufficient machinery and excavators available to him to exploit the resource.
On the evidence before me I am satisfied that Mr Pryce has the financial and technical capabilities to carry on mining operations under the proposed Mining Lease. Moreover there is a complete absence of any evidence to establish that he does not have the necessary financial and technical capability to carry on the proposed mining operations.
I am satisfied that s 269(4)(f) of the MRA has been satisfied.
Section 269(4)(g) – Whether the past performance of the Applicant has been satisfactory?
Mr Pryce asserts previous experience in the mining industry and no evidence was placed before me which would lead to any finding that there has been no satisfactory past performance by Mr Pryce.
Section 269(4)(h) – Whether any disadvantage will result to the holders of existing exploration permits or mineral development licences or existing applicants for exploration permits or mineral development licences?
In his application for a mining lease Mr Pryce properly identified the existence of an Exploration Permit for Coal 2574 in the area where he seeks his mining lease.
His application was accompanied, as Attachment 5, by a letter from Coal Face Resources dated 3 May 2012.
Coal Face Resources are the holders of the Exploration Permit for Coal 2574 and in their correspondence say that:
“CFR has reviewed the information provided in your email, and given the small size of the ML and its location within our EPC, we believe that both resources can be developed if both parties work cooperatively.”
On the evidence before me there are no holders or applicants for any tenures who would be disadvantaged by the grant.
In all of the circumstances I am satisfied that no disadvantage will result to the holders of any existing Exploration Permits or Mineral Development Licences or any existing Applicants for Exploration Permits or Mineral Development Licences.
Section 269(4)(i) –Whether the operations to be carried on under the authority of the mining lease conform with sound land use management?
The evidence before me in this and other cases involving Palmerville Station establish that the current use of the totality of the land area, apart from some existing Mining Leases, is for low intensity grazing and the land is otherwise capable of being used for mining purposes.
The area alienated to the Mining Lease is a very small fraction of the total land area held by the Respondents and I am satisfied that utilisation of a Mining Lease to extract existing mineralisation conforms with sound land use management. In any event any loss to Mr Struber from his low intensity grazing operation will be incorporated into any compensation agreement or determination.
Section 269(4)(j) – Whether there will be any adverse environmental impacts, caused by those operations and if so, the extent thereof.
I see no basis for finding that his activities are likely to result in any adverse environmental impact so long as they are compliant with the requirements of the Code of Environmental Compliance for Mining Lease Projects.
In coming to this view I have taken into account any potential impact of the proposed mining activity on the owner and occupier of the adjoining land.
In my view the objections raised by the Struber’s are entirely speculative and in particular the objections fail to articulate any proper basis for concern about environmental impacts.
To the extent that it may be relevant I am satisfied that the Code of Environmental Compliance – Mining Lease Projects adequately sets out the miner’s obligations and the EPA contains sufficient provisions to enable enforcement proceedings to be taken.
Section 269(4)(k) – Whether the public right and interest will be prejudiced?
There is nothing before me to suggest that there is any available evidence (let alone evidence adduced before me) to suggest that the public right and interest would be prejudiced by the proposed grant. Indeed, grant of the lease will permit the timely exploitation of existing mineralisation on the subject property.
Section 269(4)(l) – Whether any good reason has been shown for a refusal to grant the mining lease?
In my view having regard to all of the evidence referred to above and , paying particular regard to I cannot identify any particular or good reason for not granting a lease over the whole of the application area.
Section 269(4)(m) – Whether the proposed mining operation is an appropriate land use taking into consideration the current and prospective uses of that land?
On the basis my finding in respect of criteria (i), (j), (k) and (l) as set out above I have come to the view that the proposed activity is an appropriate land use taking into consideration the current and prospective uses of the land.
For the reasons which I have set out above my decision in this matter is to recommend to the Honourable the Minister for Mines and Energy that Mining Lease No. ML 20682 be granted over the application area.
Environmental Protection Act 1994 considerations.
Part of the referral to this Court was consequential upon an objection form lodged by the Struber’s in respect of the proposed granting of an Amendment to an Environmental Authority which had earlier been granted to Mr Pryce.
That application was made on 31 August 2011 and was said to include a proposal to add a new mining tenement to an existing Environmental Authority. That amendment is referred to above at [9].
Pursuant to Chapter 5 – Environmental Authorities and Environmentally Relevant Activities, Part 5, Subdivision 3, upon referral to this Court of an objection the Court then has an obligation to conduct a hearing for the objections decision.[5]
[5] See s 188(1).
The nature of the decision by this Court in respect of that objections hearing is set out in s 222 (as the Act existed in September 2012)[6] (because in this case the Draft Environmental Authority was issued).
[6] Now s 190 – see Environmental Protection Act 1994 as in force 3 May 2013.
Section 223 (as the Act existed in September 2012)[7] sets out the matters to be considered for the objections decision and in particular requires consideration of the following matters:
(a) the application;
(b) any response for an information request;
(c) any standard conditions for the relevant activity or authority;
(d) any draft environmental authority for the application;
(e) any objection notice for the application;
(f) any relevant regulatory requirement;
(g) the standard criteria;
(h) the status of any application under the Mineral Resources Act for each relevant mining tenure.
[7] Now s 191 – see Environmental Protection Act 1994 as in force 3 May 2013.
In the present case no information request was made by the Department of Resource Management at the time the application was made and a notice of decision issued on or about 9 September 2011 advising that the notice of decision and all relevant standard environmental conditions in the Code of Environmental Compliance for Mining Lease Projects constitute the draft Environmental Authority for this application.
That decision notice required publication of the application and raised the prospect of objections which came to fruition with the objection lodged by Stephen Struber and Dianne Wilson Struber.
As set out earlier in this decision the grounds of objection are in somewhat cryptic terms and no attempt was made by the Struber’s to clarify or further articulate their concerns.
No evidence of any failure to comply with any parts of the Code of Environmental Compliance for Mining Leases has been advanced by the Struber’s.
On or about 6 September 2012 the Department of Environment and Heritage Protection filed in this Court a statement of position in which it set out the history of the application for the amendment to the Environmental Authority (Mining Activity) for a Level 2 Code Compliant Mining Lease Project.
That statement of position pointed out that by operation of the Environmental Protection Act 1994 the Draft Environmental Authority for the application is taken to be all relevant environmental conditions for the mining lease project. (See s 167(2))[8] The Position Statement set out and satisfied me that the Applicant had complied with all of the requirements of s 154 of the EPA. That establishes that the application was validly made under Chapter 5 of the EPA.
[8] Of the Environmental Protection Act 1994 as it existed in September 2012.
With respect to the specific grounds of objection relating to conditions 29, 34 and 35 of the Code the Statutory Party informed the Court that:
“The Department does not consider there to be any conflict between any material that accompanied the application and the rehabilitation conditions of the Code that form the grounds of the objection.”[9]
[9]See letter Department of Environment and Heritage Protection, 6 September 2012 at paragraph 19 of the Position Statement.
The Position Statement went on to inform the Court that the Department considered that the standard environmental conditions contained in the Code of Environmental Compliance for Mining Lease Projects were appropriate for the Level 2 Compliant Activity and accordingly the Statutory Party submitted that the Court should make a recommendation that the application be granted on the basis of the Draft Environmental Authority for the application.
In all of the circumstances having regard to those matters set out in s 190(1) of the EPA I am satisfied that the application of the Code of Environmental Code for Mining Lease Projects will adequately protect and provide for any environmental issues which may arise in the course of the activities proposed by Mr Pryce.
Accordingly, I recommend, pursuant to the Environment Protection Act 1994, to the Honourable the Minister administering the Environmental Protection Act that the Environmental Authority be issued in terms of the Draft Environmental Authority issues on 9 September 2011 without amendment.
Compensation Pursuant to the Mineral Resources Act
On 1 August 2012 Mr Pryce requested that compensation for his mining lease application ML 20682 be decided by the Land Court in conjunction with and at the same time as the objection hearing.
The question of compensation referral is provided for in s 279(5) of the Mineral Resources Act provides that the Land Court may hear and determine the matter of compensation as if the referral was an application made under s 281.
Section 281(3) sets out the matters in respect of which compensation is founded.
That section provides:
“281 Determination of compensation by Land Court
…
(3) Upon an application made under subsection (1), the Land Court shall settle the amount of compensation an owner of land is entitled to as compensation for—
(a) in the case of compensation referred to in section 279—
(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; and
(b) in the case of compensation referred to in section 280—
(i) diminution of the value of the land of the owner or any improvements thereon;
(ii) diminution of the use made or which may be made of the land of the owner or any improvements thereon;
(iii) all loss or expense that arises;
as a consequence of the grant or renewal of the mining lease.”
In the present case no information at all has been received from Stephen Struber or Dianne Wilson Struber.
The correspondence sent to them was returned to the Court and, as indicated above, all attempts to otherwise serve material upon them have failed.
Mr Pryce in response to the directions of the Court did file material on 26 September 2012. In that material he set out in some detail the basis upon which he contended compensation ought be calculated.
With respect to the mining lease itself he said this:
“The lease is situated over the main Palmer River and is 19.5668 Ha in size as per maps supplied.
Access is from a gazetted road namely Whites Creek Road and runs for a distance of 9.101 kilometres at 3 metres in width being 2.7303 Ha leading to the MLA 20682 as per map supplied.
Mining activities will temporarily disturb the alluvial river wash in the lower parts of the river bed and immediately put back the way it was. The river bed is made up of a mass of rock bars crossing back and forth for the entire length of the lease with Alluvial deposits in between these bars. There is no pastoral grasses where mining activities will be performed as these areas are on the banks of the River and will not be disturbed by excavation or haulage roads due to our small footprint and environmentally friendly way of mining. See photos attached of rocky grounds. This is also how the label was given to the proposed lease on the mining application as ‘Rocky River’.
It is my opinion that with wet seasons putting a stop the mining operation for five - six months of the year due to the alluvial deposits in the lower lying area of the river. And the lack of disturbance of pastoral lands then losses to the pastoral owners will be minimal.”
Mr Pryce contends that the compensation should be $5 per hectare for the mining lease payable to the landowners in advance yearly for the period of ten years upon approval of the lease application from the Mining Registrar.
In coming to make that submission Mr Pryce relies upon several decisions previously handed down by this Court.[10]
[10]Palmer River Pty Ltd v Kingsley [2011] QLC 0019, Vaughan v Struber & Anor [2007] QLC 0080 and Aurelius v Terry [2010] QLC 0010.
With respect to access Mr Pryce contends as follows:
“This proposed access road has been set down and used for decades and can be seen on 4 x 4 maps, GPS systems and topographical maps and so, no extra disturbance of the ground will have to occur as the wheel ruts/tracks are well set in the ground.
There is compensation already paid to the landowners over the proposed road and is used for access ML 3076, 3077, 6719, 40079.
There are a number of unofficial users of the road for recreational camping and fishing and accessing mining leases all of which do not pay compensation to the landowner.
For this reason compensation claimed for the loss of potential grazing land and income (none will be lost) and a zero compensation is sought.”
In support of that contention Mr Pryce refers to decision of Saxby v Struber & Anor.[11]
[11] Edward John Saxby v Stephen Struber and Dianne Wilson Struber [2012] QLC 0049.
This Court has observed on a number of occasions, in the context of s 281 of the MRA, that while that section relevantly requires the Court to settle the amount of compensation, an owner of land is entitled as compensation for a number of aspects of the intrusion onto that land 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
The Act goes on in s 281(4) to enable various additional factors be included in the compensation determination the Act does not define any particular method of assessment.
In a number of cases the Court has made observations about the absence of any prescription as to a method of valuation.
For example in Smith v Cameron [1986-1987] 11 QLCR 64 the Land Court held:
“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.”[12]
[12] P. 74.
In relation to the terms, conditions and times when payments should be made I take into account the quantum, the order, the size of the mining lease and the period for which the mining lease will operate and in the circumstances I order that the miner pay compensation in respect of ML 20686 in a total sum of $107.50 per annum such sum to be paid within two months from the notification of the grant of the mining lease by the Mining Registrar and thereafter annually in advance on the anniversary of the notification.
Similar observations have been made in Shaw v Heritage Holdings Pty Ltd[13], and Mitchell v Oakhill and Mitchell[14].
[13] (1992-93) 14 QLCR 139.
[14] (10 March 1998) unreported.
Pursuant to s 7 of the Land Court Act 2000 this Court is not bound by the rules of evidence and may is not bound by the rules of evidence and may inform itself in the way it considers appropriate but, at the same time must act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities and forms or the practice of other courts.
Because of the way in which this matter has unfolded and because of the failure of the current landholder to place any material before this Court to assist it in its determinations I regard it as appropriate to have regard and reference to the previous decisions of the Judicial Registrars of this Court.”
I have given some consideration to a decision of Mr Windridge as the Mining Registrar in Dembowski & Anor & Struber & Anor, Re [2006] QLRT 44 (26 May 2006). In that decision involving the same landholders the presiding Member ultimately determined[15]:
[21]There will be a negligible effect, if any at all, on the management of the pastoral holding. Principally, only the alluvial material in the stream bed will be disturbed. This disturbance will be minimised and returned to natural contours as soon as the stream suffers flooding. I am not satisfied that any award other than a nominal award is justified. The stream bed is the property of the State. Any banks or land which are included within the lease boundaries are not part of the plan of operations and will not be disturbed. While the rate per hectare may appear to be low, I take into account that only the stream alluvium is to be mined and processed. Should the lease be terminated before expiration of the full term, the landowner has the financial benefit of some overpayment. Having regard to the foregoing, I determine compensation as follows at the rate of $10.00 per year for a renewed term of 10 years.”
[15] Dembowski & Anor & Struber & Anor, Re [2006] QLRT 44 (26 May 2006) page 4 para [21].
At the end of the day the Court is left really only with the contentions which have been extracted from material set out above provided by Mr Pryce.
The Court has commented on a number of occasions previously about the difficulty of determining compensation in circumstances where scant or no evidence is provided to the Court.
For example, Judicial Registrar O’Connor has observed[16]:
“It is not an uncommon occurrence for either of both parties in a compensation matter before the Court to fail to comply with the Practice Direction. The absence of detailed compensation evidence from both sides clearly makes the task of the Court in determining compensation difficult. In the circumstances, I adopt the analysis of the legislative provisions, compensation principles and methodology applied by Mining Referee Windridge in Re Wallace & Ors & Evans [2006] QLRT 93.”
[16] Re Wilkins and Mudge [2009] QLC 0075 (29 May 2009), page 2 para [5].
In Wallace & Ors & Evans, Mining Referee Windridge observed:
“The evidence
…
[8]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, and the land owner has notionally lost the use of the lease area of approximately 8ha for the term of the renewal. However, as the intention is to extract tin, gold and gravel from the creek alluvium, the mining operation will have little or no effect on the grazing operation.
[9]Prior determinations and agreements for leases and claims in the Mareeba area for alluvial gold or tin operations range from about $1.00 per hectare per year to $3.00 per hectare per year.
[10]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 section 281 of the Act.
Access
[11]From details provided in the copy of the application for renewal, it appears access is partly through the same property. There are no details of this access or the effect it will have on the operations of the landowners. Access is in all probability a track that is used by any number of persons who have leases, claims or prospecting tenures in the area. I award a nominal sum of $10.00 in relation access to the lease, noting that the term of the renewal is not of a short duration.
Blot on title
[12]The loss of land through a mining tenure of lengthy duration has been accepted by the Land Court as similar to permanent acquisition for a limited time (Smith v Cameron (1986-87) 11 QLCR). In this instance, the renewed lease is over an area of 8 Ha, and the term of the renewed lease is 21 years. In the absence of any evidence, I make no allowance for any perceived blot on title. I note that a mining lease grants the right to mine on a limited area for a limited time. Other than the right to mine, the grant of a lease does not create any interest or title in the land. There is no endorsement or registration of the lease on the background title document.”
In his decision, Mining Referee Windridge, took into account, as seems appropriate in the present case, that the only viable use of the land is low intensity grazing if pasture is available in the alluvial beds.
He concluded that mining operations on the lease would have no measurable effect on the operations conducted on the property and, while there would be some minor effect which would the noise of machinery and the movement of people and vehicles on or about the lease area and along the access road, there was no evidence of severance of one part of the property from any other part.
Those observations are entirely apposite in the present case. The Mining Referee also found that the lease was taken out for alluvial mining and was a low impact operation. Again, those observations apply to the present case.
In Wallace & Ors the Referee allowed $1.00 per annum per hectare for the term of the renewal on the notional area of 8 Ha and awarded an additional sum of $10.00 for access.[17]
[17] Jacek Andrew Zaborszczyk v Stephen Struber and Dianne Wilson-Struber [2012] QLC 0053
In all of the circumstances and having regard to the figures contended for by Mr Pryce and not responded to by the Struber’s and having regard, in particular, to the fact that the mining operation proposed by Mr Pryce seems to have a negligible impact upon the pastoral carrying capacity of the property. I come to the view that a figure of $5 per hectare payable in advance on the grant of the lease and thereafter annually is an appropriate amount to be paid by way of compensation for the mining lease itself.
As to access I do not accept the contention by Mr Pryce that the amount payable in respect of access should be nil. He proposes to make use of some 2.7 Ha for the purpose of access and I come to the view that it is appropriate that some amount should be paid for using that access. All additional users contribute in some way to the wear and tear on rural access roads and I see no basis upon which Mr Pryce should be entitled to a “free ride” for his access to his mining lease.
My view is that the access area ought be rounded to 3 Ha and $2.50 per hectare paid in respect of that area.
With respect to the mining lease it is appropriate that the area should be rounded up to 20 Ha so that the annual compensation payable in respect of the mining lease and the access is $107.50 per annum payable in advance.
That figure is made up of 20 Ha x $5 per hectare for the mining lease together with 3 Ha x $2.50 per hectare by way of compensation for utilisation of the access.
I should record that because of the broad-brush approach which I have necessarily had to take in coming to a decision about the appropriate amount of compensation the figures decided by me above should be taken to have included the amount required to be allowed by s 281(4)(e) of the MRA.
No party has sought an order in respect of costs and, in any event, in my opinion there would be no proper basis for any award of costs.
ORDERS:
1.I recommend to the Honourable the Minister for Natural Resources and Mines that Mining Lease ML 20682 be granted over the application area.
2.I recommend, pursuant to Environmental Protection Act 1994, to the Honourable the Minister administering the Environmental Protection Act that the Environmental Authority be issued in terms of the draft Environmental Authority issued on 9 September 2011 without amendment.
3. The miner Malcolm Scott Pryce pay compensation in the sum of One Hundred and Seven Dollars and Fifty Cents ($107.50) per annum, such sum to be paid to the landowners within two months of the notification of the Grant of the Mining Lease by the Mining Registrar and thereafter annually in advance on the anniversary of the notification.
HIS HONOUR, MR WL COCHRANE
MEMBER OF THE LAND COURT
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