Southern Titanium NL v Heidrich
[2009] SAWC 6
•7 June 2004
Wardens Court of South Australia
(District Court Administrative and Disciplinary Division)
SOUTHERN TITANIUM NL v HEIDRICH AND OTHERS
[2009] SAWC 6
Reasons for the Orders of Senior Warden Cannon
7 June 2004
MINING LAW
Generic terms and conditions with explanatory reasons
SOUTHERN TITANIUM NL v HEIDRICH AND OTHERS
[2009] SAWC 6Supplementary reasons published on 31 May 2004
Some additional issues have been raised that are consequential upon the need for me to provide fairly detailed minutes of order. I have had further submissions on those and I now publish final minutes of order. It is appropriate for me to give some brief reasons in explanation of those that were not agreed.
Bad Clay:
I was asked to amend this to also cover excessive salinity. I do not have sufficient information to be prescriptive as to this topic especially bearing in mind that some salt in clay would quite quickly wash out of the topsoil layer. I have added this to the definition of “Bad Clay”: “STNL shall also take into account expert advice of other factors that may make clay unsuitable for mixing with topsoil.”
End Date:
The Landowners ask me to hold the company to the proposed mining schedule. STNL seeks no time limits on when it might mine and a maximum of 15 years. I now give reasons for prescribing an end date. The mining operations proposed here will start some 3-4 years hence on Mrs Merton’s property and successively on the others until the last on Mrs and Mr Berger’s property in 10-11 years time. The mining will be an imposition and waiting for it is itself an imposition. It limits what landowners can do on the property in the vicinity of the mining. For example they are effectively limited in placing farming infrastructure on the area to be mined. They are entitled to some certainty in relation to when it will occur. Requiring mining to commence will provide some certainty to the later properties because they will see the effect of the operation, not just be talking about it. It would be an unfair imposition to leave this hanging over the Landowners’ heads for 15, or even less years, not even knowing whether it will happen at all. On the other hand STNL point out that economic conditions and changing techniques may slow the rate of mining and the possibility of finding alternative more attractive deposits may change the sequence. Once having secured the ability to mine it seeks to have flexibility in when it mines. In balancing these conflicting interests I order that mining be complete within 5 years of the first planned commencement date in the schedule submitted at the commencement of these trials: ie for Mrs Merton that is within 5 years of 3-4years or within 8 years. For Mrs and Mr Berger that is within 15 years. To fit with the normal financial year I shall order the time starts to run from 1 July 2004.
Rehabilitation of ML 6137:
I have changed this to refer to different soil types. I have made this obligation subject to access to do this being granted. I note that Mrs and Mr Heidrich seek to use access for this purpose as a bargaining chip to negotiate a change of what is agreed between them and STNL for the first lease. That is not before me. However, in the matters that are before me, it is in everyone’s interest that the ability to rehabilitate is proved on the first mining lease. Mr and Mrs Heidrich are parties to the proceedings that are before me, which does give me power to order access to their other land for that purpose. In the orders made for Mr and Mrs Heidrich and their company KRH Malleeview Pty Ltd I will order that they permit access to their land for the purpose of testing crop yields after mining on ML 6137.
Fuel and oils:
I have included clause 1.16 to cover this issue.
Crop testing:
I have left the extent of this to the Field Crop Expert. As requested I have allowed for fallow years after mining. To provide a finite number of years for the testing to be complete I have required at least 3 crops to be sown within 5 years (clause 2.8 and see clause 1.9.c)). I have clarified that if the comparative yield testing shows a loss of more than 10% compensation for the loss will be paid until it is remedied.
Total water usage:
I have been asked not to cap the total water use at the higher volume of 4,292ML per annum proposed by STNL. The water modelling was initially for a lower use of water and then extrapolated to the higher use of 4,292ML of water per annum. The effect of increased salination to and exhaustion of the aquifer are important issues to the freehold interest in the medium term and without evidence of the effect of water usage beyond 4,292ML pa I have no basis upon which to permit water usage beyond that level. I make the higher level of proposed water use a maximum.
Quiet enjoyment of the ML (clause 2.5):
It was suggested that I add words emphasising the need for this to occur on a co-operative basis. I agree with the idea but from a drafting point of view this is sufficiently expressed in clause 3.
Numbering:
I noticed the inconvenience caused by separate numbering systems for the Conditions and the Compensation so I have renumbered the Compensation clauses to follow consecutively.
In an actual loss calculation I have included the need to take into account hail or other relevant insurance (clause 9.2 a)
I have proceeded on the basis that the Greiger matter is settled. If it is not I shall make orders in relation to it.
The Bond:
I note the submission from PIRSA that the bond under the lease is not to secure any obligations that I impose. STNL accepts that I can make it a condition that the Minister require a Rehabilitation bond that in the opinion of the Minister is sufficient. I do so. In addition the parties and the Director of Mines accept that I have jurisdiction to impose a bond or require payment into court of a sufficient sum to secure performance of the conditions and compensation I have required. Payment into court is the most effective way of securing this. I have imposed conditions to that effect. The sum is calculated the following way. There will be a total loss of crop on the disturbed area for the year of mining. If the subsequent loss of yield is 10% it is to be paid for the three years of testing plus 20 times for compensation, a loss of 23x10/100=2.3. I shall work with the standard rate of $185 indexed because in principle that average yield notionally allowed for every year regardless of drought is a fair starting point to secure the obligations under these orders. At a practical level it is the only figure I have. The starting point then for the bond is a factor of the total loss for the year of mining plus security for the possibility of future loss of yield: 1+2.3=3.3x$185=$610.50. In addition there is the balance of the amenity payment of $75 ($100 less $25 paid in advance- Compensation clause 11) which gives a base bond calculation of $685.50 per hectare of the Disturbed Area. I round this to $700 per hectare to allow for agistment. The bond will need adjustment where a depression or mound is permitted and where a principle residence is permitted. Mounds and depressions are estimated to occupy 2 hectares and where they are permitted I shall add 2 hectares to the estimated Disturbed Area. For a principal place of residence I take the estimate of time (Mr Hazelwood: 78 days, and Mrs and Mr Berger: 78 days, say 11 weeks) and multiply it by $2000 per week. I see no need to provide security for the obligation to provide alternative accommodation for other non principle residences. Substantial infrastructure will be affected by the mining operation on Mrs and Mr Berger’s property and Mr Rohrlach. Mr Rohrlach has a higher risk of disease than do others. To secure those obligations I have added a broad axe security for each of those of $50,000. I note STNL’s submission that the bond under the Mining Lease covers the issue of infrastructure. That may be so but, as I have noted elsewhere my work in relation to exempt land and compensation for entry is separate from the lease and it is appropriate that I secure it separately. This is particularly so since PIRSA has made it clear that the Minister will not make any bond the Minister requires available for the obligations that I impose.
I have made the Bond repayable once items it secures are paid and in full after 6 years if no order is made, to allow for any extended period of comparative testing if there are fallow years.
Mr Rohrlach:
I shall add to the generic clause 1.15 reference to an appropriate expert to develop a preventative program for disease entry. In relation to the bore I have noted that Mr Rohrlach’s existing rights to water can be used in ensuring legal access to an alternative bore. I have noted that the field crop expert will need to be one for potatoes and that the value of the potatoes Mr Rohrlach grows needs to take into account their value as seed potatoes for Langhorne Creek. The other special clauses previously suggested by me have been adopted. As for scrub on the property NW of Mr Rohrlach’s land I shall include a condition requiring revegetation of that.
I have included the same clause for Mr Hazelwood to address his concerns over the scrub adjoining the racecourse.
Costs:
I refer to previous decisions. Costs are a matter of discretion. The usual rule applies to cases where a right is asserted and either upheld on the proven facts, or not upheld and the case dismissed and costs follow that result. That usual rule has problems of application to cases such as this where the court is finding a way to reconcile legitimate competing rights. There are problems of principle, because both parties may be in the right and problems of practice because there may be no clear victor. The exercise of the discretion as to costs in cases such as this needs careful consideration. In this case the STNL’s has established that it is an appropriate case for the exemption to be removed and the number of cases that it settled indicate that its generic offer was adequate for many, even allowing for the possibility of pressure of cost risks and other matters not known to me. STNL seeks to call evidence on the reasonableness of its approach before any cost order is made against it. The landowners in the cases before me have established principled objections to the generic offers and the conditions and compensation I have ordered are different from the generic offers. Both parties have been vindicated in bringing the matter to court and for an important and complicated project such as this the public interest may have been served by the public airing of the issues surrounding it. In the matters before me the first mining is not expected to commence before 3 to 4 years and the last 10 to 11 years. This is an unusual project to be conducted over many properties for many years. It would be normal to expect that the owners in the cases before me could have waited to see the actual mining operation and with the benefit of that decide whether to sign away the exemption on terms that may have been offered by the company. The need to decide these issues now, and under short time constraints was to serve the interests of STNL, and in particular to assure its potential financiers. I do not criticise it for that but it gives a powerful argument for me to allow the landowners who wanted to proceed with caution to exercise their rights to have the matter determined in court without expense to them. In the hearing STNL was well resourced. I have noted how useful it was for me to have at least one lawyer appearing for a landowner, especially Mr Amey who is experienced in the jurisdiction. Although his representation was specific to his client, having him at the bar table advantaged all the Landowners and it advantaged me. It provided a legally qualified opposition to STNL. If all the landowners had been unrepresented it would have been more difficult for me to conduct the trial and to have appeared neutral in it. In providing a fair process it also advantaged STNL in establishing a basis for a long term good relationship. Had the proceedings appeared unfair due to all the landowners being unrepresented the result would have less credible.
The fact that STNL has attempted to negotiate and inform the community in good faith does not alter these reasons that lead me to suggest I should make modest cost orders in favour of the landowners. I am reluctant to countenance any further evidence so I intimate my view as to costs. If STNL wish to bring evidence to convince me to a different view I shall hear what they wish to bring and if it may be relevant I shall give them the opportunity.
As to the parties’ personal expense the long held view of courts is that they are not properly the matter of compensatory cost orders. The parties can be awarded costs of attending to hear and give evidence. I reserved the issue of the sign on fee of $1,500, which STNL offered to the landowners, as part of this cost issue. I would order the sum of $1,500 be paid to each of the Landowners in the proceedings for me as full compensation for all their cost not otherwise ordered. I should allow the Landowners the reasonable costs of obtaining and calling experts who were accepted as experts and gave evidence. I should allow Mr Amey’s counsel fees at a reasonable rate and a modest getting up fee. Otherwise I should leave each party to pay its own costs.
Reasons and orders published with the personalised conditions on 7 June 2004
General notes on personalised conditions:
I have included the matters noted in the document I published on 31 May 2004 under the heading “Clauses to be inserted…”
In each personalised order I have accepted the information filed by STNL about the correct identity of the landowners and have included all landowners as parties bound by the orders. In relation to Mr Zerk I have bound the partnership that joined the proceedings and in relation to the Heidrich Trust I have bound the beneficiaries.
I note that the footnote describing the basis of calculating the bond failed to note the rounding up to $700. I have corrected this. The footnote should now correctly describe the different methods of calculating the bond. This is necessary to permit refunding of the bond.under 15.3
I accept that both the Minister’s bond and the bond I am requiring should be payable before mining for ore commences, not the mining operation.
I make these specific notes:
There are a few minor housekeeping changes not noted.
Rohrlach
I have noted that there are no residences on the land but I have left in a requirement to clean dust and security for existing sheds, which are in proximity to the strand.
In Clause 9.3 I took out $185 for calculating compensation for loss of productivity: if there is a loss of yield compensation must use actual loss method.
As for the bond there should be no crop loss in year of mining therefore 2.3x185= 425.5 plus balance of the amenity payment of 75= 500 x 47ha=23,500+50,000= 73,500.
Berger and Hazelwood
Clauses 1.2. e and 1.30 have been added as anticipated to require notice in relation to the principal residence. For Mr Hazelwood and Mr Rohrlach I also included clause 1.8.i dealing with the neighbouring scrub.
Heidrich
A clause has been added to 1.7 re access to ML 6137
Costs
I gave an intimation as to costs in my supplementary reasons published on 31 May 2004. I reserved STNL’s rights to call further evidence on this aspect. It has filed an affidavit of Mr Bosch and has stated it does not seek to call further evidence beyond that. I have considered the affidavit. It does not change my view. I now confirm cost orders in the terms intimated, namely:
I order the sum of $1,500 be paid to the Landowner(s) in each matter as full compensation for all their costs not otherwise ordered. I allow the Landowner(s) the reasonable costs of obtaining and calling experts who were accepted as experts and gave evidence. For Mr Rohrlach I allow Mr Amey’s counsel fees at a reasonable rate and a modest getting up fee. For Mr Rohrlach this encompasses the $1,500 and is not additional to it. Otherwise each party can pay its own costs.
GENERIC MINUTES OF ORDER
I ORDER under section 9 of the Mining Act 1971 (SA) that the land subject to this order shall cease to be exempt land subject to these conditions and orders for compensation which are made under all the powers vested in me by the Act
These conditions apply to Southern Titanium NL whose registered office is at Level 7, 22 King William Street ADELAIDE SA 5000 (herein with its successors and assigns called STNL) and
**********************************of ******************************** (herein with its heirs, executives, successors and assigns called the Landowner(s),INTERPRETATION
Unless the context otherwise requires the following terms in these orders have the following meanings:
“Actual Gross Margin” is fixed under clause 9.2 of COMPENSATION using this formula: Y x P – C where
Y is the yield per hectare for the reference crop, being that part of the crop which lies within 100m of the Disturbed Area on the Landowner(s)’ Land or, where there is no planted land within 100 m of the Disturbed Area, yield for an identical soil type as close as possible to the Cultivated Land, in the year that mining occurs on the Land,
P is the price realised for the reference crop after taking into account any awards or deductions for protein levels, moisture, screening issues and other bonuses or penalties evidenced by silo delivery dockets,
C is the variable cost of production fixed by agreement and if it cannot be agreed is fixed by the Field Expert.
“Annual Loss” is defined in clause 9.3 a. of COMPENSATION;
“Bad Clay” is clay in which the concentration of Boron is more than 10ppm or the pH is more than 9.3. STNL shall also take into account expert advice of other factors that may make clay unsuitable for mixing with topsoil.
“the Bond” is defined in clause 16;
“CPI” means the annual percentage change published in the Consumer Price Index All Groups Index Numbers for Adelaide provided by the Australian Bureau of Statistics, or the most similar index of price movements for South Australia that replaces it;
“Cultivated Land” means that part of the Disturbed Area that now is cultivated land for the purposes of the Mining Act 1971 (SA);
“Disturbed Area” means the greater of that area on the Landowner(s) land of the Mining Lease, as measured at the natural land surface, that is actually excavated or used as a construction site by STNL, plus an additional peripheral buffer width of 75 metres outside that same area, or the actual area of the Mining Lease on which the Landowner(s) is unable to effectively cultivate and harvest crops as a result of the Mining Operation and Mining Infrastructure, and as the context requires is used to describe STNL’s estimate of the Disturbed Area;
“DSE” describes the maintenance feed requirements of a 2 year old, 45 Kg liveweight Merino Wether with a body condition fat score of 2.
“End Date” means the ** day of ********** 2***;
(Merton 8, Rohrlach 9, Hazelwood 9, Heidrich/Irlam 10, Heidrich 11, Zerk 11, Neldner 12, berger 15)“Equivalent Agistment Rate” means S x I x T, where:
S is the DSE per hectare for the Grazed Land
I is the agistment rate in cents per head per week prevailing in the district in the relevant season and applicable to the Grazed Land
T is the time in weeks for which the Grazed Land would have been able to have been grazed on stubble following a crop, and on saltbush at the stocking rate “S” in the relevant season ;“Farming infrastructure” means all infrastructure used to carry on farming and includes stock watering points;
“Grazed Land” means that part of the Disturbed Area that is normally used for commercial grazing purposes;
“indexed” means adjusted for CPI changes from the date of this judgment until 1 July last before the date when the sum of money falls due;
“The Landowner(s)’ land” means the land comprised in CTRB Vol ****Folio ****;
“Mining Lease” means, as the context requires, each or all of the Mining Leases or Miscellaneous Purpose Licences to be granted pursuant to the Mining Act 1971 (SA) over the Landowner(s) Land (here insert description relating to the strand eg Mindarie (A) etc)
“Mining Operations” means all activities which may be carried out under the Mining Lease including all activities associated with the development of open cut commercial mining operations, the ore concentration plant, conveyors, borefields, piping and pumping water, delivery of services including electricity, transport of high metal concentrate away from and the return of material to the mine, stockpiling soil and rehabilitating and restoring land, passing and re-passing over the land (including by any mode of transport), the installation, construction, operation and removal of Mining Infrastructure, decommissioning bores and all related or incidental activities;
“Mining Infrastructure” means all infrastructure used to conduct Mining Operations and includes processing plant, sheds, plant and equipment, supplies, stockpiles, roads, road diversions, power lines, water pipelines, bores and all associated facilities;
“Parties” means the STNL and the Landowner(s);
“Permitted Mounds and Depressions” means those authorised by this order, namely (insert details of any permitted for this landowner: Mrs Merton will have a mound, Mr Zerk a mound, Mr Neldner a depression and Mr and Mrs Heidrich a mound in the property previously owned by Scott Irlam)
`
“Principal Residence” means the dwelling, if any, on the Land continuously occupied by the Landowner(s) and immediate family or the manager of the property, provided there can only be one principal place of residence on each Landowner’(s) land;“the Reduced Yield” is defined in clause 1.9 of the CONDITIONS;
“Term” means the period commencing upon the date of the first grant of the Mining Lease and expiring on the date upon which Mining Operations are completed on the Mining Lease, as notified in writing by the STNL to the Landowner(s);
“Work Area” means that part of the Disturbed Area surrounding Mining Operations in which a person or stock could be exposed to danger from the Mining Operations.
CONDITIONS
1. STNL shall:
1.1comply with the requirements of the Mining Act 1971 (SA), the Mines and Works Inspections Act 1920 (SA), the Radiation Protection and Control Act 1982 (SA), the conditions of the Mining Lease and any Mining and Rehabilitation Program (MARP), any approval to carry out mining operations, and any other legislation, regulations, licences or government codes of conduct affecting its activities on the Landowner(s)’ land and subject to these conditions not to hinder the Landowner(s)’ compliance with its statutory obligations;
1.2provide reasonable and as much notice as possible and provide continuing information to the Landowner(s) of:
a. the intended date to commence any preliminary work and assessments on the Mining Lease,
b. the intended date to interrupt any existing power, water, telephone and access services,
c. the intended date to commence mining the ore on the Landowner(s)’ land,
d. the estimated Disturbed Area by marking it on the ground in an agreed manner,
and notice of the intention to commence mining the ore on the Landowner(s)’ land should be sufficient to allow the landowner to not prepare and plant the Disturbed Area, or if it is not sufficient, reasonable compensation for any preparation and planting costs (if not agreed, to be determined at the expense of STNL, by the Field Crop Expert appointed below) must be paid;
1.3use its best endeavours to avoid damaging any farming infrastructure, or harm to crop and stock on the Landowner(s)’ land; and,
a. where farming infrastructure is unusable as a result of the mining operations provide as soon as reasonably practicable adequate alternative infrastructure to allow farming to continue as it was before;
b. where farming infrastructure is damaged or destroyed provide equivalent replacement infrastructure on a new for old basis in the vicinity of the prior infrastructure or such other place as may be agreed as soon as reasonably practicable, and in any event within two months after the cessation of mining operations in the vicinity of those improvements;
c. where crop or stock is harmed pay reasonable compensation for that harm;
1.4ensure continuity of the Landowner(s)’ power, water and telephone services and in the event of any interruption to them, immediately arrange for alternative services sufficient for the Landowner(s)’ needs, whilst STNL promptly reinstates the usual supplies;
1.5within limits imposed by operational practicality and safety, facilitate the Landowner(s)’ freedom to cross over the Mining Operations at any point along their length and productively use as much as possible of the area of the Mining Lease;
1.6provide sufficient fencing and grids to:
a. separate the Landowner(s)’ land from adjoining land and public roads and thoroughfares, and
b. sufficiently isolate the Work Area and the Disturbed Area to allow mining and rehabilitation and farming activities including the grazing of stock to continue successfully and without undue risk to stock and people;
c. reinstate the fencing after the Mining Operations;
1.7subject to being granted access, demonstrate its capability to rehabilitate the soil after mining by arranging at the expense of STNL independent comparative testing of the crop yield after mining on the Disturbed Area within Mining Lease 6137, for three seasons on areas representative of different soil types that were excavated and areas that were not excavated but were subject to compaction compared to equivalent adjoining land by a Field Crop Expert agreed between STNL and the Landowner(s), or if one cannot be agreed, nominated by the Wardens Court;
1.8rehabilitate in consultation with the Landowner(s) the Disturbed Area to at least its productivity prior to the mining operation and where possible improve it by appropriate measures such as:
a. removing, stockpiling and replacing the topsoil and subsoil in such manner as to ensure minimal loss of the topsoil, maintenance of soil structure and organic carbon levels and to ensure there is no bad clay closer to the surface than prior to the mining operation;
b. removing and stockpiling topsoil in daylight hours;
c. the addition of organic carbon, fertiliser, clay and gypsum to improve the soil;
d. taking all necessary steps to prevent loss of rehabilitated soil, including, where necessary, planting and watering a cover crop;
e. remedying any compaction of the soil;
f. in any areas of saltbush or other cultivated plants removed by the mining operation revegetate in consultation with the Landowner(s) with like plants and ensure their healthy growth for at least three years;
g. in any areas of native flora removed by the mining operation revegetate in consultation with the Landowner(s) with like flora and ensure its healthy growth for at least three years;
1.9establish at the expense of STNL the profile of the soils in the Disturbed Area before the Mining Operation and that it has rehabilitated the soil after the Mining Operation:
a. by taking sufficient patterns of core samples at 200 metre intervals before the mining operation to show the soil profiles of the Disturbed Area and make the results available to the Landowner(s);
b. by arranging at the expense of STNL independent comparative testing of the crop yield after mining on sufficient parts (decided by the Field Crop Expert to take account of soil variations) of the Disturbed Area that were excavated and that were not excavated but were subject to compaction each compared to equivalent adjoining land for three seasons by a Field Crop Expert agreed between STNL and the Landowner(s), or if one cannot be agreed, nominated by the Wardens Court;
c. if the Disturbed Area is not sown with crop for a year the comparative testing can be delayed for that year but the comparative testing must be completed in 5 years.
d. STNL and the Landowner(s) will fully co-operate with the Field Crop Expert and assist him or her in any inspection of documents, crop and land s/he deems useful to calculate the comparative yield, including if s/he deems fit the taking of samples and conferring with any party whether in the presence or absence of the others;
e. the Field Crop Expert should consult STNL and the Landowner(s) about the comparative testing process and the choice of the areas to be tested, but the process will be conducted in the absolute discretion of the Field Crop Expert and her or his decisions will be final;
f. if the independent comparative testing shows that the average of the crop yield from the Disturbed Area for those three years is at least as much as the average of the yield for the same three years from the equivalent adjoining land the Disturbed Area shall be deemed to be sufficiently rehabilitated and no further compensation is payable; but,
g. if the independent comparative testing shows that the average of the crop yield from the Disturbed Area for those three years is less than the yield from the equivalent adjoining land then the Field Crop Expert will make a finding of the average actual percentage reduction of yield from the Disturbed area compared to the equivalent adjoining land for the three year period (herein called “the Reduced Yield”) and compensation shall be paid on the basis set out under the heading COMPENSATION;
h. if the Reduced Yield is not more than ten percent the payment of COMPENSATION shall be sufficient remedy without further attempts at rehabilitation but if it is more than ten percent STNL will be obligated both to rehabilitate to within ten percent of the prior yield and to pay the prescribed COMPENSATION notwithstanding subsequent rehabilitation.
1.10take sufficient profiles to establish the contoured form of the Landowner(s) land before the Mining Operations and make the profiles available to the Landowner(s) and return the Landowner(s) land as near as practicable to the original contoured form, except where a departure is agreed and except for Permitted Mounds and Depressions;
1.11ensure that where a mound or depression is permitted it does not contain so much sodic clay as to prevent appropriate water permeability, it is the least height or depth possible and not more than 5 metres above or below the usual land form and it has smooth contours not exceeding a slope of 1:4;
1.12ensure there is no lesser quality nor quantity of water available to the Landowner(s) during or after the mining operations and:
a. test the rate of supply and quality of water from of any existing bores on the Landowner(s) land that the Landowner(s) nominate will be subject to this clause prior to mining commencing on the Landowner(s) Land (and where a licensing regime is in place they must be licensed);
b. upon damaging or reducing any water supply from any nominated bore immediately make an alternative supply of similar quality and not less quantity available and reinstate the original as soon as reasonably practicable after the damage reduction occurred;
c. where the quality or quantity of water from any of the Landowner(s)’ nominated bores is significantly reduced return to the Landowner(s) access to water of the same quantity and not lesser quality for the same time as expected before the mining operation at no greater expense for the landowner. Where this requires additional licences or water rights STNL is to do all things necessary to secure them and where it requires new pumps, piping and other infrastructure STNL will install new good quality and sufficient infrastructure to fulfil this obligation, but STNL will not be obligated to then maintain it.
1.13keep current with a reputable insurer, at STNL's sole cost, a public risk insurance policy in respect of the Mining Operations conducted by STNL on the Mining Lease to cover the liability of STNL and its liability under condition 1.14, in which the limit of risk (being the amount which may be paid arising out of any single claim) shall be not less than $50,000,000 and which shall include all provisions as are normally contained in insurance policies for public risk and to produce evidence of the currency of the policy to the Landowner(s) on request;
1.14indemnify, and keep indemnified, the Landowner(s) from and against any liability, expenses and costs arising out of any claim made against the Landowner(s) by any third party for loss or damage suffered by that party arising out of the conduct by STNL of Mining Operations on the Mining Lease.
1.15ensure no weeds or diseases are introduced to the property and:
a. survey the Disturbed Area and adjoining areas for weeds and diseases before and after the mining operation;
b. in consultation with the Landowner(s) develop a program to prevent the introduction of weeds and disease, to eradicate any that are introduced, and to prevent the export of any that are on the property to other properties;
c. ensure its employees, contractors, and all people who may wish to enter the Landowner(s) land attend appropriate instruction on the measures necessary to prevent the introduction of weeds and disease and that they actually take those measures;
1.16ensure that fuels and oils are properly stored, provisions are in place to minimise the extent of any spills and any soil contaminated by them is removed;
1.17complete Mining Operations on the Landowner(s)’ land before the End Date, and in any event:
a. remove all mining infrastructure and decommission all bores sunk by STNL that are not legally left for the benefit of the Landowner(s) in a manner that complies with all regulatory requirements as soon as practicable after the mining operation is completed;
b. other than the obligation to complete mining operations by the End Date nothing in these Orders shall require STNL to apply for the Mining Lease or to conduct, or continue to conduct, Mining Operations on the Mining Lease within any particular period of time, or at all, and STNL may elect to do so in its sole discretion;
1.18if any non-principal residence was normally occupied before and would otherwise normally have been occupied by employee(s) of the Landowner(s) at the time of mining, the STNL will provide alternative accommodation of a similar standard for the duration of open cut mining excavation within 750m of the non-principal residence, and will meet all reasonable costs of the temporary relocation, and
1.19pay the reasonable costs of cleaning dust caused by mining from any residence and any associated sheds and outbuildings after the pit passes them;
1.20install a reasonable security system in any residence and any adjacent sheds and outbuildings which house valuable farm machinery now and the time when the pit passes;
1.21to pay the reasonable cost of measures to prevent dust caused by mining as the pit passes any residence from entering any rainwater tank which collects rain for that residence;
1.22not conduct Mining Operations on any Good Friday or Christmas Day.
1.23not use more than 4,292ML of water on the Mining Operations per annum;
1.24ensure that any arsenic, chromium and radioactive material is handled with due care and in accordance with all relevant legislation and if it is returned to the pit is done so in a manner than minimises risks of contamination of air, groundwater, pasture or crops;
1.25ensure that light spill, dust and noise generation are minimised to the extent reasonably possible;
1.26take reasonable precautions to minimise the risk of starting fire and have the ability to extinguish it;
1.27not to permit dogs or firearms on the Landowner(s) land;
1.28pay any sum due directly or consequentially under these conditions, for compensation or under the judgment of the Senior Warden in these matters when they fall due.
1.29Not to register any caveat over the Landowner(s) title.
2. The Landowner(s) shall permit STNL free and undisturbed access to the Mining Lease to exercise its rights under the Mining Lease, and the Mining Act 1971(SA) in accordance with this order and to that extent the Landowner(s) shall:
2.1allow STNL at any time during the term, by itself or its servants, agents, contractors or representatives and with or without vehicles, to enter upon, use and occupy the Mining Lease to conduct Mining Operations, which rights shall include the right to:
a. remove any improvements on the Mining Lease necessary to permit Mining Operations to occur;
b. clear any natural or other vegetation, to the extent reasonably required to permit Mining Operations to occur;
c. conduct Mining Operations on the Mining Lease on a continuing and intensive basis and in a manner which will necessarily result in noise and dust levels above those normally acceptable under applicable environmental standards, but STNL must observe its obligations to minimise noise and dust levels;
d. transport mined material on the Mining Lease at regular intervals;
e. at all times prior to the End Date, upon reasonable written notice enter upon the Land and remove any Mining Infrastructure erected by it (which shall remain the property of STNL);
2.2permit STNL, at its sole cost and expense, to erect or construct such fences around the Work Area or the Disturbed Area that STNL may reasonably require and if STNL wishes to engage a contractor for that purpose STNL agrees to notify the Landowner(s) to allow them to tender for the work;
2.3upon being given at least seven days written notice, clear any specified part of the Disturbed Area of livestock within the time limit specified in the notice;
2.4after the time limit specified in the notice mentioned in paragraph 2.3 above and provided that the fencing anticipated in clause 1.6.b. is in place and any relevant alternative infrastructure in accordance with clause 1.3.a. is provided, not carry livestock, farm or plant any crop on the specified part of the Disturbed Area unless STNL consents in writing;
2.5at all times during the conduct of Mining Operations on the Mining Lease on the Land respect the rights of STNL to the use and quiet enjoyment of the Mining Lease;
2.6remove any improvements or fixtures erected after the grant of any Mining Lease over strands identified in this case over the Landowner(s) land;
2.7in order to promote the safety of the Landowner(s) and their employees, tenants, representatives and personnel, ensure their employees, tenants, representatives and personnel who may wish to enter the Work Area once STNL commences construction of the Mining Infrastructure, attend any safety procedures induction courses reasonably required by STNL and first obtains the consent of STNL before entering the Work Area;
2.8plant crops in the Disturbed Area and adjoining areas after mining in at least 3 of the next five seasons and co-operate in the testing of crop yields on the Disturbed Area and adjoining areas. If problems with soil rehabilitation occur co-operate with STNL to identify and solve any problems;
2.9nominate any bores from which the Landowner(s) legally draw water and co-operate in the testing of those bores before and after the mining operation;
2.10to co-operate in the survey of weeds and diseases in the Disturbed and adjoining areas before and after the Mining Operation;
2.11permit inspection prior to mining of any building that STNL may need to pay to be cleaned of dust.
3.STNL and the Landowner(s) agree and they shall:
3.1conduct their relationships in the utmost good faith to work co-operatively to achieve the best progress for the mining operation, the least possible disruption of the farming business and the best possible rehabilitation of the land and to that end:
a. where they effect each other, to maintain honest and open communication about the conduct of the mining operations, the farming business and the rehabilitation of the land;
b. to recognise that conflict is likely between them and to resolve that conflict by honest and open negotiations;
c. where it is necessary to resolve disputes to use the services of a mediator agreed between them, or if one cannot be agreed, nominated by the Wardens Court, at their shared expense, before resorting to litigation (an application to the Wardens Court to appoint a mediator is not a resort to litigation);
3.2if STNL deals with its interest in the Mining Lease or is taken over it shall advise the party with whom it is dealing of these orders and upon such dealing being agreed shall forthwith advise the Landowner(s) of the identity of the party and its interest.
3.3if the Landowner(s) is corporate and is taken over or if the Landowner(s) deals with the Landowner(s)’ estate in the Landowner(s)’ land the Landowner(s) shall advise the party with whom it is dealing of the Mining Lease and of these orders and upon such dealing being agreed shall forthwith advise the STNL of the identity of the party and its interest;
4.No mining for ore on the Landowner(s) land shall occur until a Rehabilitation Bond in an amount determined by the Minister is lodged as required by the Minister to ensure that land disturbed by the mining operations will be rehabilitated, vegetation re-established and infrastructure reinstated to the satisfaction of the Minister. That bond will not secure compliance with these conditions or compensation (although the lease conditions may impose obligations that are coincident with these conditions).
5.Nothing in these Orders shall be taken to preclude any right which STNL may otherwise have to enter upon the Land for the purpose of conducting preliminary work and assessments, including surveying, further drill testing, groundwater monitoring, flora and fauna surveys and air quality monitoring, to prepare for the commencement of Mining Operations on the Landowner(s) land.
6.These conditions are separate and additional to the requirements of any Mining Lease and if there is any irreconcilable conflict between these conditions and the requirements of any Mining Lease these condition shall apply.
7.The parties have liberty to apply to this Court in relation to any matter in relation to these orders.
8.Any notice, demand, request or other communication required to be given or made under these Orders may be by mail or facsimile at the following address or if notice of change of address is given in writing to the other party at that changed address::
TO:Southern Titanium NL
Level 7,
22 King William Street
ADELAIDE SA 5000
Facsimile: 08 8410 8885TO:The Landowner(s)
**
**Facsimile:
End of CONDITIONS
COMPENSATION
Pursuant to section 9(3a) and s.61 of the Mining Act 1971 (SA), the STNL shall pay to the Respondent(s) compensation in respect of Mining Operations on the proposed Mining Lease as follows (headings are for convenience only and shall not affect the interpretation of these orders):
STNL shall pay:
9. For loss of earnings from cropping:
9.1For total loss of crop in any area of the Landowner(s)’ land caused by the Mining Operation in any season (including crop damaged by the Mining Operation and crop that cannot be harvested as a result of the Mining Operation), unless the Landowner(s) chooses the Actual Gross Margin method by notice in writing by 30 June for the season the loss shall be paid at the rate of $185 indexed per hectare of the Disturbed Area.
9.2If notice is given the Actual Gross Margin shall be calculated at the expense of STNL by a Field Crop Expert agreed between STNL and the Landowner(s), (who may be the same expert as the one used for the independent comparative testing under clause 1.9 of the CONDITIONS) or if one cannot be agreed, nominated by the Wardens Court, in the following manner:
a. the Field Crop Expert will calculate the Actual Gross Margin by reference to the yield, price and cost of inputs for the crop grown on equivalent land alongside the Disturbed Area and will take into account any relevant insurance held by the Landowner(s) against a risk, such as hail damage, that occurs;
b. STNL and the Landowner(s) will fully co-operate with the Field Crop Expert and assist him or her in any inspection of documents, crop and land s/he deems useful to calculate the Actual Gross Margin, including if s/he deems fit the taking of samples and conferring with any party whether in the presence or absence of the others;
c. the Field Crop Expert will be briefed to complete the calculation of Actual Gross Margin and supply it in writing to both STNL and the Landowner(s) within two months of completion of the harvest in the region of the Disturbed Area;
d. the loss of crop will be paid at the rate of the Actual Gross Margin per hectare of the Disturbed Area less any area of permanent vegetation;
e. All reasonable costs of any application to the Wardens Court to nominate a Field Crop Expert and the reasonable costs of and incidental to the Field Crop Expert calculating the Actual Gross Margin will be paid by STNL.
9.3If the independent comparative testing required in clause 1.9 of the conditions shows that the average of the crop yield from the Disturbed Area for three years is less than the yield from the equivalent adjoining land then compensation shall be calculated:
a. for those three years by multiplying the average loss of yield by $185 indexed per hectare if clause 9.1 applied or the actual loss if clause 9.2 applied, by the area in hectares of the Disturbed Area (herein called the “Annual Loss”) by three;
b. for future losses if the Annual Loss is not more that ten percent a lump sum of twenty times the Annual Loss, which shall be full compensation to the Landowner(s) for any deficiency in the rehabilitation.
c. for future loss if the Annual Loss is more than ten percent the Annual Loss until the deficiency is proven to be remedied by further comparative yield testing of 3 successive crops in the manner set out in clause 1.9.
9.4Where compensation is payable under clause 9.1 or 9.2 it shall be paid by:
a. on 1 May in any year, a sum calculated at the rate of $46 indexed per hectare of the Disturbed Area;
b. the balance under whichever method of calculation is applicable within three months of completion of the harvest in the region of the Disturbed Area.
9.5If an additional area is not seeded as a result of an estimate by STNL of the Disturbed Area that is greater than the actual Disturbed area, or if an area of paddock outside the Disturbed Area is isolated by the Mining Operation so that it cannot be sown or cropped those areas shall be added to the Disturbed Area for the purpose of calculating the total loss of crop in any area of the Landowner(s)’ land caused by the Mining Operation in any season.
9.6In the event of any dispute as to whether seeding or cropping was or is prevented by reason of Mining Operations, any party shall have liberty to apply to the Court for an appropriate determination the loss and the compensation payable.
10. From loss of earnings from grazing stock:
10.1If the Landowner(s) can demonstrate that the Landowner(s) would have derived profit from grazing stock on the Grazed Land, STNL shall pay compensation in an amount equivalent to the area of the grazed land multiplied by the Equivalent Agistment Rate, assessed in the following way:
a. the Equivalent Agistment Rate shall be calculated at the expense of STNL by an appropriate expert agreed between STNL and the Landowner(s), or if one cannot be agreed, nominated by the Wardens Court;
b. the expert may inspect whatever documents or land and undertake whatever investigations s/he deems fit, including conferring with any party whether in the presence or absence of the others, and the parties shall fully co-operate;
c. the expert’s assessment of the Equivalent Agistment Rate in accordance with the formula in the definition shall be final and binding;
10.2payment of compensation for loss of profit from the grazing of the stubble shall be paid within 30 days of the independent expert’s assessment of the Equivalent Agistment Rate.
11.For general loss of amenity, a sum shall be paid at the rate of $100 indexed per hectare of the Disturbed Area payable by 25% (calculated on the estimate of the Disturbed Area) not later than 30 days before the commencement of open cut mining on the Landowner(s)’ land and the balance payable not later than 30 days after the open cut mining leaves the Landowner(s)’ land.
12.For loss of amenity relating to Principal Residence, an amount determined in accordance with this clause. STNL will in writing advise the Landowner(s) one year before it expects the excavated open cut mine to be within 750 metres of the Principle Residence and discuss with the Landowner(s) the alternative accommodation that it can supply. The Landowner(s) will then have three months to notify the STNL in writing that 12.2 will apply, and then the amount will be determined in accordance with 12.2 and otherwise 12.1 will apply.
12.1For each week (of part thereof) during which any part of the excavated open cut mine pit at the Land surface, represented by a rectangle with its length being from the start of removal of topsoil at the advancing end to the point where the re-deposited material at the rear of the pit reaches near original ground level is closer than 750metres to the nearest wall of the Principal Residence: $1,400 indexed, and STNL will provide alternative accommodation for those weeks of a similar standard to that of the Principal Residence, and in addition meet all reasonable relocation costs.
12.2For each week (or part thereof) during which any part of the excavated open cut mine pit at the Land surface, represented by a rectangle with its length being from the start of removal of topsoil at the advancing end to the point where the re-deposited material at the rear of the pit reaches near original ground level is closer than 750metres to the nearest wall of the Principal Residence: $2,000 indexed.
12.3STNL will in addition pay the compensation ordered herein for any additional week where it is demonstrated by and independent expert, agreed by the parties, or if they cannot agree appointed by the Wardens Court, that the noise generated from the Mining Operation between sunset and sunrise on any night in a bedroom with the window partly open of a Residence exceeds 30dB(A) Leq. or 45dB(a) L, and if it is so demonstrated STNL will pay the cost of the expert but otherwise the cost will be borne by the Landowner(s). This subclause also applies to extend the obligation to provide alternative accommodation for a non principal residence under clause 1.18 of the Conditions.
12.4The above sums will be paid by 75% by no later than 30 days before the date on which any open cut mining excavation extends within a 750 metres of the Principal Residence and the balance by no later than 30 days after the cessation of any open cut mining excavation within a 750 metres of the Principal Residence. If any sum is due under clause 12.3 it will be paid within 30 days of demonstration.
13. Any sum payable hereunder may be paid to the relevant party most recently notified under clauses 3.2 or 3.3 (as the occasion requires) of the CONDITIONS at the time when the payment fell due, and a payment to that party shall be sufficient proof of payment of that sum to whom it was due.
13.1Where land is in joint or common registered ownership, a payment to any registered owner shall be a sufficient discharge of the STNL’s liability for that payment to all registered owners.
13.2If, at the when the payment fell due, STNL has been notified in accordance with clause 3.3 of the CONDITIONS that Other Persons are the registered owners of the whole or any part of the Land, it shall be paid to the Landowner(s) and/or the Other Persons in the proportions and to the extent that each of them is registered as the owner of Land which would become a Disturbed Area if mining operations were carried out in accordance with the STTR.
14.Where the Landowner(s) will have to account for GST on any compensation payment the Landowner(s) will render a GST compliant invoice and STNL will pay the GST in addition to the compensation payment (i.e. 11/10th of the compensation payment, assuming a GST rate of 10% or the applicable rate at the time).
End of COMPENSATION
THE BOND
15.At least seven days before the Mining Operation commences on the Landowner(s)’ land STNL must pay to the Registry of the Wardens Court (or any equivalent court) the sum of $………….. indexed which, together with any interest that accrues on it (in total called “the Bond”), shall secure STNL’s obligations under these Conditions and Compensation in this manner:
15.1the Wardens Court (or any equivalent court) may order payments to any appropriate person from the Bond to discharge any obligation or compensate any breach of these Conditions and orders for Compensation;
15.2the Wardens Court (or any equivalent court) may order a refund of any part of the Bond to STNL once it is satisfied it is no longer needed to discharge any obligation or compensate any breach of these Conditions and orders for Compensation;
15.3subject to any order of the Wardens Court (or any equivalent court) once STNL has paid any amount due for Compensation the sum calculated under the Bond for that amount can be repaid to STNL.[1]
[1] See Supplementary Reasons: “The sum is calculated the following way. There will be a total loss of crop on the disturbed area for the year of mining. If the subsequent loss of yield is 10% it is to be paid for the three years of testing plus 20 times for compensation, a loss of 23x10/100=2.3. I shall work with the standard rate of $185 indexed because in principle that average yield notionally allowed for every year regardless of drought is a fair starting point to secure the obligations under these orders. At a practical level it is the only figure I have. The starting point then for the bond is a factor of the total loss for the year of mining plus security for the possibility of future loss of yield: 1+2.3=3.3x$185=$610.50. In addition there is the balance of the amenity payment of $75 ($100 less $25 paid in advance- Compensation clause 11) which gives a base bond calculation of $685.50 per hectare of the Disturbed Area. … For a principal place of residence I take the estimate of time (Mr Hazelwood: 78 days, and Mrs and Mr Berger: 78 days, say 11 weeks) and multiply it by $2000 per week. … Substantial infrastructure will be affected by the mining operation on Mrs and Mr Berger’s property and Mr Rohrlach. Mr Rohrlach has a higher risk of disease than do others. To secure those obligations I have added a broad axe security for each of those of $50,000.”
15.4subject to any order of the Wardens Court (or any equivalent court) the Bond will be repaid in full to STNL six years after the payment into court.
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