Rosane Pty Limited v T & P Clarke; N Perry & R Armstrong v T & P Clarke

[2009] NSWLEC 1282

Land and Environment Court

of New South Wales

CITATION:

Rosane Pty Limited v T & P Clarke; N Perry & R Armstrong v T & P Clarke [2009] NSWLEC 1282

PARTIES:

APPLICANT (Matter No: 09/80001)
Rosane Pty Limited

APPLICANTS (Matter No: 09/80002)
N Perry & R Armstrong

RESPONDENTS (Both Matters)
T & P Clarke

FILE NUMBER(S):

80001 & 80002 of 2009

CORAM:

Moore SC - Dixon C

KEY ISSUES:

APPEAL - MINES AND MINERALS :-
Access arrangement
Review of arbitrator's determinations

LEGISLATION CITED:

Mining Act 1992
Mining Regulation 2003

DATES OF HEARING:

11, 12, 13 and 14 August 2009

EX TEMPORE JUDGMENT DATE:

14 August 2009

LEGAL REPRESENTATIVES:

APPLICANTS
Mr L Moore, solicitor
Moore & Co Solicitors

RESPONDENTS
Mr P Long, solicitor
Long Howland

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
DIXON C

14 August 2009

09/80001 Rosane Pty Limited v T & P Clarke
09/80002 N Perry & R Armstrong v T & P Clarke

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: Kayrunnera Station, as noted in the arbitrator’s report, is a property of approximately 48,000 ha located some 200 km to the north-east of Broken Hill. Two exploration licences that are in contention in these two separate proceedings (being heard jointly) exist over the property.

2 On Tuesday 11 August, we had the opportunity to undertake an extensive view of the property and were assisted in that by being accompanied during the whole of the inspection by Mr Clarke, one of the two landholders of the property, and Mr Creasy, a principal of one of the applicants in the proceedings (for most of the inspection). To inspect a paddock on the property known as the Ocean Dam paddock, Mr Creasy was replaced by Mr Ivey who has given expert evidence on behalf of the applicants in both proceedings. The legal representatives of the parties accompanied us throughout the view.

3 As is the practice of this Court, that which was said during the course of the site inspection (although given informally) was nonetheless evidence in the proceedings and those participating in the inspection were advised of this before the proceedings commenced. It will be the general practice of the Court (consistent with its practice in elements of what might be regarded as its general merit review jurisdictions – as is the case with a review of an arbitrator’s decision on access arrangements in Class 8) to follow this practice of treating what is said during the course of a site inspection as evidence in the proceedings provided it is material and relevant.

4 In the first matter that is before us, Rosane Pty Limited (Rosane) was granted an exploration licence 6761 on 30 April 2007 over a significant portion of Kayrunnera. Mr Rogers, the arbitrator whose determination on an access arrangement is the subject of these proceedings involving Rosane Pty Limited, gave a final determination dated 22 April 2009.

5 Mr Perry and Mr Armstrong, whose exploration licence is over a significantly smaller proportion of Kayrunnera than that held by Rosane, were granted exploration licence 6854 on 8 August 2007. The arbitrator made a final determination with respect to an access arrangement concerning that exploration licence on 19 May 2009. This access arrangement is the subject of the second proceedings.

6 It is important to note at this time that s 148 of the Mining Act 1992 (the Mining Act) gives a deal of procedural flexibility to the arbitrator and simply requires that the arbitrator act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. As a consequence of s 155 of the Act, we stand in the shoes of the arbitrator for the purposes of this review of his final determinations. We have carefully read the arbitrator’s final determinations and consider it appropriate to make a number of observations concerning them.

7 We commence by saying that the arbitrator is in a position analogous to that of a non-lawyer Commissioner of this Court exercising a merit review jurisdiction in classes 1, 2 or 3 of the Court’s jurisdiction.

8 As a consequence, as was recently confirmed by McFarlane JA in the Court of Appeal in Botany Bay City Council v Premier Custom Services (2009) NSWCCA 226 (3 August 2009), it is not appropriate in that jurisdiction, to approach an interpretation and understanding of the reasons of a Commissioner with a fine toothcomb. We take the same view with respect to any analysis of the reasons for and explanations given by an arbitrator under the Mining Act.

9 Having said that, however, arbitrators, like all decision makers exercising discretionary decision making powers, are, as a matter of procedural fairness and natural justice to the participants in the arbitration proceedings, required to give sufficient reasons for any decision that they make as part of their conduct of those proceedings so as to provide an explanation to the parties of the reasons why they have reached a particular conclusion.

10 Those reasons do not need to be extensive, but nonetheless they must be present. Sadly, in this case, on a number of critical elements in dispute between the parties (which, fortunately have also been [for a major part] the subject of agreement between the parties with the assistance of their advocates in these proceedings), the arbitrator gave either scant or no reasons whatsoever to enable the parties or the Court to understand the reasons why he had reached a particular determination. That is a matter of some concern to us and we would expect, given the way the proceedings have unfolded, it must have been of some concern to the parties to the proceedings as well.

11 We note that, in New South Wales, all land is divided, for the purposes of mining regulation, into numbered blocks and each block is divided into a number of units – each given an identifying letter of the alphabet. As a consequence, any point within the land mass of New South Wales is able to be referenced by an appropriate reference number and letter using this mapping system and that exploration licences are identified by the number and location of the units to which they are attached. That information, we have been advised (and accept), is publicly available. As a result, during the course of the proceedings, we have accepted that it has been appropriate to use units as an appropriate basis for reference to assist the parties and incorporate in the decision that we have reached.

12 We are undertaking a review of the arbitrator’s decision pursuant to s 155 of the Mining Act. We note that we have been provided with helpful Statements of Issues, in each of the proceedings, by Mr Moore, the applicants’ legal representative. By letter filed with the Court on 17 July, Mr Long, the respondents’ legal representative, indicated that, in general terms (subject to a number of smaller matters that have subsequently been raised during the course of the proceedings), the respondents merely sought adherence to the arbitrator’s determination.

13 Those positions, we are pleased to observe, have evolved a little during the course of the proceedings. The way the proceedings have been conducted has led to significant agreement on a number of previously contested matters between the parties (which agreements, we would hope – given some gratuitous comments made by the arbitrator in his decision about the relationship between the parties – might assist with that relationship prospering a little more in the future).

14 We turn, now, to the substantive matters that were pressed in the Statements of Issues filed by the applicants in the proceedings.

15 The first is an objection to cl 7.2 of the determination of the arbitrator, the determinations being essentially in largely identical terms (and, as we read them, the clause references are identical in each case). Clause 7.2, at the present time, provides that a licence holder “will not cross any other exploration licence area in order to access” their own licence area. Mr Long, on behalf of the landholders, proposed that that should be amended so that it simply referred to other exploration licences of the same type, that is, Category 1 licences, but that it should be maintained.

16 Both Mr Creasy and Mr Perry gave evidence that it was impossible to comply with in its present form as there can be multiple exploration licences over the same area of land depending on the nature of the minerals sought to be explored for. To continue to require the condition in its present form, we accept, could be an effective denial of access.

17 Further, there is no evidence before us that there is any particular disadvantage to the landholder by requiring access to be in the form proposed. There are, expressly, no particular safety grounds that are advanced to us for its maintenance. It is clearly in the broad environmental interest (and in the land management interests of the landholder) that the most direct access to an exploration licence area from a public road be effected. We are not satisfied that this condition would not act as an inhibition on that and, as a consequence, cl 7.2 is to be deleted.

18 We turn to cl 7.4. It is in the following terms:

7.4 The Licenceholder will give notice in writing to the Landholder or the Landholder's Representative at least 42 days in advance of the first date that the Licenceholder intends to enter upon the Lands. This notice will indicate the period(s) within which they wish to enter the lands and the number of consecutive days within each period they propose to be on the lands [eg 3 visits each of 10 consecutive days on the following dates].

19 We understand, as the applicants now understand this clause better, that they do not object to providing forty-two days notice in advance of the first date upon which they will exercise their rights pursuant to the exploration licences. Mr Moore also indicated that they did not object to the second sentence (provided that there was some basis upon which that could be modified – if, for some reason outside their control or for the efficiency of their operations, they needed to make variations).

20 As a consequence, we consider that it is appropriate to maintain the provisions of cl 7.4 but to require that an additional sentence be added to it that requires the licence holder to provide written notice (and that can be electronic written notice or physical written notice given pursuant to cl 15 of the access arrangement), if they propose to vary any of the periods that are provided for in the second sentence and that that notice is to be provided to the landholders prior to any such variation taking effect.

21 We turn to cl 7.5. It is in the following terms;

7.5 If wet weather precludes access for one or more days during a period for which notice has been given the Licenceholder may continue to access the land at the end of the notified period having informed the Landholder of his intention to do so, or may access the land at a later date having given the Landholder 14 days notice.

22 Clause 7.5, although originally objected to by the applicants, is in fact facultative of their access. The objection as we understand it is not pressed and even had it been pressed we would not have approved its removal as it is a sensible provision.

23 Clause 7.7 deals with the question of the licence holder providing information to the landholder with sufficient locational details to enable the landholder (for what Mr Clarke explained to us were safety reasons) to know where the licence holder will be on the landholder’s land. This clause is in the following terms:

7.7 At the beginning of each week that the Licenceholder intends to be in the licence area, the Licenceholder will provide the Landholder with sufficient locational details to enable the Landholder to establish the whereabouts of the Licenceholder on the Landholders land at any time.

24 During the course of the final submissions a proposal was agreed to between the parties that, provided the nature of the notice given was confined to a four-unit area, this would be an appropriate form of notice to be given. We do not see any reason to interfere with that agreement between the parties.

25 Clause 7.8 deals with giving notice of any drilling operations to be undertaken on the land. It is in the following terms:

7.8 Prior to the commencement of any percussion or diamond drilling operations, the Licenceholder will inform the Landholder of the GPS references for each proposed drilling operation and will consult with the Landholder about the most appropriate the access route for each proposed drilling site. No more than 7 workers per drilling rig will enter the property.

26 At the present time, this clause relates to GPS references and includes a restriction on the number of persons who might operate a particular drilling rig. We understand the position that the parties have agreed to is that, provided the GPS reference is deleted and the unit within which drilling is to be undertaken is substituted, there now is no objection to the first sentence of that clause. We accept that that would be a sensible compromise position.

27 The requirement that there be no more than seven workers per drilling rig was, on our suggestion, as we understand, it accepted by the parties to be varied so that it would require that no-one, other than those workers that are necessary for and/or ancillary to the operation of the drilling rig, would be permitted to enter the property as part of the drilling activities. That would permit a geologist and a field hand, for example, accompanying the drilling rig and drilling workers but would not enable a gratuitous attendance of people not necessary for or associated with the drilling operation. That sentence should be amended to reflect that.

28 Clause 7.9 relates to drilling within a one kilometre area (which expression we assume to be a radius) of a watering point. The clause is in the following terms:

7.9 The Licenceholder with consult with the Landholder about the timing of any drilling activity proposed to be conducted within 1km of a watering point. If a mutually convenient time for the proposed drilling cannot be agreed to within 5 days, the Licenceholder may commence drilling after 21 days from the date on which the Landholder was informed of the proposed drilling.

29 The exploration licence holders propose the deletion of the words “will consult” and proposed “will advise”. We do not see a difficulty with that because the regime is one that will give the landholders sufficient notice of the intended activity and the first sentence of provision 7.8 automatically provides for discussion about the access paths to be followed to access the drilling unit where the drilling is to be undertaken. However, the exploration licence holders, through Mr Moore, also suggested that there should be designated watering points as identified on a plan prepared (as we understand it by Mrs Clarke) that was Exhibit H in the proceedings (Exhibit H is appended to this decision). We consider that to be an appropriate arrangement – provided, as was not contested by the exploration licence holders, there is an opportunity for the Clarkes (provided they give appropriate notice to the exploration licence holders), as part of their property management to add additional watering points and that those additional watering points will also attract the protection of cl 7.9.

30 Clause 7.10 relates to consultation with the Catchment Officer (Enterprise Based Conservation) of the Western Catchment Management Board. This clause applies only to the access arrangement for Rosane because a very large area (in excess of 4,000 hectares), known as the Ocean Dam paddock, is subject to an environmental arrangement with the Catchment Management Board and a Property Vegetation Plan applies to it. The objection, although originally pleaded, is no longer pressed by Mr Creasy on behalf of Rosane and it will remain.

31 We note, at this point, that there have been provisions already discussed involving the communications between the exploration licence holders and the landholders. The terms of the exploration licences (and particularly the access arrangement that was determined by the arbitrator) require communications between the parties.

32 Clause 15.2 of the access arrangements set out the various methods that are available to effect that communication – whether physical or electronic or in other forms.

33 During the course of the proceedings, Mr Perry, particularly, offered to erect and utilise what we will now call, in shorthand, an “explorer’s letterbox” to be erected in the vicinity of the homestead (at the main road entrance point to the homestead) for the purposes of those communications. Mr Creasy, on behalf of Rosane indicated a preference for using electronic email connection as he had better onsite communications equipment.

34 We consider it appropriate to provide in the access arrangement applying to Mr Perry and Mr Armstrong, in cl 15.2, for the erection of an “explorer’s letterbox” at that location to facilitate communications between them and to require that that occur prior to the first access being undertaken for the purposes of exploration and that the erection of the letterbox is to be at Mr Perry and Mr Armstrong’s expense. We also consider it appropriate to permit it to occur for Rosane (if Rosane or, indeed, Rosane’s successor in title to the exploration licence at some future time) to have the ability to do so but we do not propose to require that that occur.

35 The next clause to which objection was raised is cl 8.1(a) that requires restoration work to commence upon “the completion of prospecting operations in the licence area”. The first observation we make is that a proper construction of that clause, in our view, does not mean that restoration work for any individual exploration activity has to be undertaken immediately that particular prospecting operation is concluded. It is merely a requirement that restoration conclude at the completion of prospecting operations in the totality in the licence area.

36 During the course of the proceedings we have heard evidence and had submissions about capping of drill holes, fencing of trenches and the like – trenching using a ditchwitch, for example, being contemplated as part of the exploration. We are satisfied that the condition, as presently written should remain as we understand that, on the basis of our construction of it, it is no longer opposed.

37 We have, also as we will deal with later, reached the conclusion that it would be appropriate, for reasons of enforcement opportunity for the landholder, to incorporate the terms of the exploration licence in the access arrangement. As we understand it, that will, therefore, incorporate in the access arrangement requirements for drill holes to be capped when they are not otherwise being used for exploration purposes and that trenches and the like are also to be fenced at times when they are not being used for exploration purposes. Thiswill have the effect of providing protection for stock and for persons from accidental injury.

38 We turn now to the question of insurance and indemnity in cl 9. There are four provisions in this clause all of which are objected to. The clause is as follows:

9.0 Insurance and Indemnity

9.1 The Licenceholder must effect and maintain a public liability insurance policy in respect of the exploration program for a minimum amount of $20,000,000.00 (twenty million).

9.2 The policy of insurance must be in the name of the Company and the interest of the Landholder noted.

9.3 The Licenceholder will give to the Landholder a copy of the policy and certificates of currency of the policy when it is renewed.

9.4 The Licenceholder is to indemnify the Landholder against all claims and all losses, liability and expenses incurred by the Landholder in connection with the Licenceholder's operations on the Land in so far as they relate to this Arrangement.

39 First is the requirement that each of the licence holders must effect and maintain a public liability insurance policy in respect of the exploration program for a minimum amount of $20 million.

40 Mr Perry and Mr Creasy both gave evidence that they maintained insurance policies in the sum of $10 million. Although it was not the subject of a formal tender, we were informed that there have been personal accident and injury decisions given by the courts of New South Wales with verdicts in excess of that sum. Whilst there might be a limited (one might hope extremely limited or non-existent) risk associated with exploration, that would be a risk prudently taken into account by an insurer when setting a premium. We do consider that it is appropriate to maintain the requirement proposed by the arbitrator that the public liability insurance policy be in the sum of $20 million rather than $10 million currently held.

41 The next subclause objected to requires that the policy of insurance should note the interests of the landholder. We understand it to be the position that each of the exploration licence holders has agreed that the existence of their activities on their particular exploration licence area (not confined to Kayrunnera but across the whole of their exploration licence areas) should be informed to their insurance companies. We consider that that be an appropriate course of events to adopt rather than requiring specific notation of Kayrunnera. That notation, as we envisage it, will necessarily encompass any exploration activities on Kayrunnera.

42 Clause 9.3 requires that the licence holders give the landholders a copy of the policy and certificates of currency of the policy when it is renewed. We think it is perfectly reasonable not only to require that those documents be provided to the landholder, but also to provide that if a certificate of currency has not been provided to the landholders, the access arrangement will specifically note (whilst we appreciate it is a right that arises in any event) that the landholder has the right to exclude the licence holder whilst ever such a policy of insurance is not current. We understand this is no longer opposed.

43 The next question that arises is whether or not the licence holder should give an indemnity to the landholder. That is provided in cl 9.4 of the access arrangement. It is in the following terms:

The licence holder is to indemnify the landholder against all claims and all losses, liability and expenses incurred by the landholder in connection with the licence holder’s operations on the land in so far as they relate to this arrangement.

44 Section 383C of the Mining Act provides a general immunity to landholders in the following terms:

383C General immunity of landholders

The landholder of land within which any person (other than the landholder) is authorised to exercise any power or right:

(a) by or under this Act, or
(b) by any authority, mineral claim, opal prospecting licence or permit under this Act,

is not subject to any action, liability, claim or demand arising as a consequence of that person’s acts or omissions in the exercise, or purported exercise, of any such power or right.

45 It is our view that s 383C in fact provides an indemnity that is arguably greater than the indemnity that is sought in cl 9.4 and is certainly no less than the indemnity that is sought in cl 9.4. Cl 9.4 is supplanted, in our view, by the statute and is therefore rendered unnecessary. It is to be removed.

46 We turn, now, to the question of camping. First, there was an initial proposal that there should be camping rights at large for those undertaking exploration on behalf of Rosane. No such right was sought by Mr Perry and Mr Armstrong. This issue arises because cl 7.15 of the access arrangement determined by the arbitrator prohibits such camping. No reasons were given by the arbitrator for this prohibition, although we do note that it was requested by the landholder. It is an example of a contended matter that should have been properly explained by the arbitrator in his determination.

47 As things now arise, as we understand it, the parties have reached an agreement that camping should be permitted on each exploration licence solely for the purposes of a single person camping with any drilling rig that might be carrying out drilling operations on that exploration licence – this being for the purposes of providing security to such drilling rig.

48 We are satisfied that that camping is capable of being permitted pursuant to s 141(1)(d) of the Mining Act relating to the conditions to be observed by the holder of the prospecting title when prospecting on the land. We have reached that conclusion after considering the definitions in the Mining Act of “prospect” and “prospecting operations” because we consider that the carrying out of drilling and necessary attendant security for it is an element that falls within the definition of “prospect”. These definitions are as follows:

prospect means to carry out works on, or to remove samples from, land for the purpose of testing the mineral bearing qualities of the land, but does not include any activity declared not to be prospecting by a regulation under section 11A.

and
prospecting operations means operations carried out in the course of prospecting.

49 We are not satisfied (but need not determine in these proceedings) whether or not camping at large (as contrasted to camping to secure a drilling rig being used in the course of prospecting) is capable of falling within the definitions of “prospect” and “prospecting operations”. That is a matter to be dealt with on another occasion.

50 We do note, for completeness, that s 11A of the Mining Act permits certain activities to be declared not to be prospecting for the purposes of the Act and that the Mining Regulation 2003, in cl 12, has made some provisions in that regard that do not impact on the consideration of whether prospecting encompasses camping or not.

51 We turn, now, to the question of compensation. Compensation arises pursuant to s 263 of the Mining Act:

263 Compensation arising under exploration licence

(1) On the granting of an exploration licence, a landholder of any land (whether or not subject to the licence) becomes entitled to compensation for any compensable loss suffered, or likely to be suffered, by the landholder as a result of the exercise of the rights conferred by the licence or by an access arrangement in respect of the licence.

(2) The holder of an exploration licence may agree with a landholder as to the amount of compensation payable, but an agreement reached is not valid unless it is in writing, signed by or on behalf of the parties to the agreement.

(3) Such of the provisions of an access arrangement (whether or not in writing) as relate to compensation have effect as an agreement for the purposes of this section.

(4) Payment of compensation under this section (other than compensation payable under an access arrangement agreed on as referred to in section 140 (a)) is taken, for the purposes of any security given by the licensee, to be an obligation under the licence.

52 Compensable losses are defined in s 262:

262 Definition

In this Division:

compensable loss means loss caused, or likely to be caused, by:

(a) damage to the surface of land, to crops, trees, grasses or other vegetation (including fruit and vegetables) or to buildings, structures or works, being damage which has been caused by or which may arise from prospecting or mining operations, or
(b) deprivation of the possession or of the use of the surface of land or any part of the surface, or
(c) severance of land from other land of the landholder, or
(d) surface rights of way and easements, or
(e) destruction or loss of, or injury to, disturbance of or interference with, stock, or
(f) damage consequential on any matter referred to in paragraph (a)–(e),

but does not include loss that is compensable under the Mine Subsidence Compensation Act 1961.

53 The arbitrator set out, under the heading of “Compensation”, the competing submissions of the parties and what we accept was the evidence given by Mr Clarke, in some respects, concerning what he understands to be payment rates being paid in the Broken Hill area together with material submitted on behalf of the exploration licence holders by Mr Harrison who has also given evidence in these proceedings.

54 The arbitrator set out that material and then proceeded to provide for a schedule of compensation that is in three parts (as he has set it out). One part of it, to which we will return, we do not believe correctly falls within the area of compensation.

55 The compensation comprises a table of disturbances and other compensation that we accept on the basis of the evidence and submissions is based on s 262(b) primarily but also is supported by ss 262(a) and part of 262(e). However, the arbitrator provided no reasons whatsoever for the adoption of the amounts that he has imposed on the parties, amounts that do not reflect any of the amounts, as we understand it, relevantly submitted by the parties.

56 This provides us, with respect to the table of disturbances, with a significant difficulty. We have evidence that we consider we are entitled to have regard to of the evidence recorded in the arbitrator’s decision as having been given by Mr Clarke about what are contemporary payments in the Broken Hill region. We are left with the position of Mr Harrison’s evidence in support of his rates (which, in cross-examination, included a concession that some of the rates [if not all of the rates] originally proposed by him had been being applied for a period of nearly twenty years), although he indicated and we accept that those rates had been modestly adjusted earlier this year.

57 To some extent we are concerned that the absence of reasoning by the arbitrator provides us with no basis upon which we can determine whether or not we should depart from the arbitrator’s determination. The arbitrator’s determination did not entirely reflect what was sought by the landholder. It certainly did not reflect what was sought by the exploration licence holders.

58 We are satisfied that (without having any regard to the movements in the price of gold over the intervening twenty years) it would be appropriate to adopt the arbitrator’s table of disturbances because we are satisfied that he had better evidence at the time of a comparative basis upon which he could do so and we are satisfied that, given that the rates proposed by the licence holders have not been adjusted significantly over a period of some eighteen or nineteen years, that it is not unreasonable not to disturb the arbitrator’s finding in that regard.

59 We note that, under the other compensation payable, there is now an agreement between the parties as to how that should be dealt with and the precise calculations (that arise from evidence we received from an expert Mr Ivey, who prepared a report on behalf of the applicants, and who also prepared some current comparable information that indicated that on his calculations the rates now offered on a per diem basis by the applicants in these proceedings might be regarded as generous), we do not need to proceed to do other than note that the agreement now reached for the items under (1) of “Other compensation payable” will require the drafting of an amended clause together with the precise calculations of the daily amounts for the Rosane area and for the Perry/Armstrong area.

60 As we propose to require preparation of short minutes to give effect to this decision, we would indicate that we are proposing to set the matter down for telephone mention before us, (although it may end up only being one of us), on 21 September unless settled short minutes reflecting this decision are not filed by agreement (in hard copy and electronically by e-mail to the Court) before that date.

61 We note that the compensation schedule includes a sum for occupational health and safety induction onto the landholder’s property. We not consider that such a sum could properly be awarded under the head of compensation and we understand that Mr Long, on behalf of the landholders, does not press it on that basis. On that basis we will return to that matter shortly.

62 It is appropriate that the access arrangement include a proper process for the making of payments that has, perhaps, a greater degree of specificity than currently provided for by the arbitrator. In that regard, we note that the arbitrator simply provided that payments were to be made within thirty days of the expiry of any exploration period. We consider it appropriate to provide greater certainty and that that be amended in the following terms:

• notice is to be given to the landholders in accordance with clause 15.2 of what items have been undertaken in the table of disturbances and the days upon which access has been had to each exploration licence;
• the notice is to be given within thirty days of the conclusion of each exploration period; and
• the notice is to be accompanied by the payment required (either on a per diem basis or pursuant to the table of disturbances).

63 There are two elements contained in the table of disturbances that are not multiple activities. They are a dust nuisance payment, one off, of $250 and a one off payment for the use of existing tracks of $500 in the case of Rosane and it may be, but I do not have it in front of me, a smaller amount for the other licence, but there is an amount for that For Mr Perry and Mr Armstrong. Whatever those amounts are, there is no time specified for the payment of them in the arbitrator’s determination. We are of the view that they should be paid to the landholders at the time of giving notice of the first intention to access the exploration licence pursuant to cl 7.4 of the access arrangement.

64 We are satisfied, on the evidence of Mr Creasy and of Mr Perry, that each has a satisfactory record-keeping basis that could be dealt with if there were any subsequent dispute (which we would hope would not be the case) about the days of access and the activities of a disturbance nature that will be the subject of the payment requirement.

65 We consider that Mr Perry and Mr Armstrong are jointly, severally and, in our view, unlimitedly liable for any payments under the access arrangement, but we propose that the access arrangement should specifically declare that that is the case.

66 We had in evidence an extract from the Australian Securities and Investments Commission’s records that discloses that Rosane is a $2 company. Having raise that matter, Mr Creasy has indicated that the directors of Rosane are prepared to give personal guarantees for any liabilities that Rosane might incur under its access arrangement. We therefore require that:

• such undertakings by each of the directors of the company are to be filed and served within twenty-eight days of today’s date;
• the access arrangement is not to commence until after those guarantees have been filed and served;
• should there be any change in the directors of Rosane Pty Limited or should there be any change in the proprietorship of the exploration licence held by Rosane Pty Limited such new guarantees in accordance with this requirement are to be filed within a similar period of twenty-eight days and served on the landholders (unless otherwise agreed to as is permissible under the access arrangement variation proposals).

67 That leads us to matters relating to flags and safety vests and OH&S induction courses. In this regard, we note that Mr Long does not rely on the compensation provisions but relies on s 141(1)(d) of the Mining Act as being a matter related to the conditions under which a person is entitled to enter the exploration licence for the purposes of exploration.

68 We are satisfied that there are, given the very large areas of land over which access is possible and the comparative uncertainty of the times and places where that access will now be undertaken (given that a four-unit notification area can encompass a location that could be up to nearly 7.2 kilometres in length), safety reasons so that it is appropriate to require flags on both vehicles of quad bike nature and on Landcruiser styles of vehicles. We do not consider it unreasonable to require light safety vests to be worn as well for those purposes at those times.

69 We have reached that conclusion because the landholders’ operations, on our understanding of the evidence Mr Clarke gave us informally during the course of the site inspection, include use by him and those assisting him of quad bikes, at least one aeroplane, and a large front end loader that he uses for earth moving purposes. It is, in our view, not merely in the interests of the landholder that there be proper safety precautions, but that there be proper safety protection afforded to the exploration licence workers as well.

70 We turn now to the question of the safety induction course (for which a one off payment of $500 is required by the arbitrator). We consider that it is appropriate (given that there is a potential conflict between the activities of the landholder and the more peripatetic nature of the activities of the exploration licence holders) that they be required to undertake a safety induction course. That is not done in satisfaction of the exploration licence holders’ occupational health and safety responsibilities. It is an acknowledgement of the necessity for the landholder to discharge the landholder’s occupational health and safety responsibilities. That is to be a payment of $500 upon completion of the original induction course to be given.

71 For reasons of certainty, we consider that it is appropriate to incorporate the terms of each exploration licence as existing or as varied in the terms of the access arrangement and to require that the exploration licence holders, if their exploration licence be varied, serve a copy of the varied exploration licence on the landholders within fourteen days of the variation being effected.

72 Finally, we propose to order that exhibits, other than Exhibits C, D, G, H and N, be returned to the parties.

73 Liberty is given, on two days notice, to re-list before one of us if there is any disagreement as to the necessary wording to give effect of our decision. Otherwise, we set the matter down for telephone mention on 21 September at a time that will be advised to the parties’ legal representatives.

Tim Moore Susan Dixon

Senior Commissioner Commissioner of the Court