Wallace v Australian Wildlife Conservancy

[2016] QLC 43

LAND COURT OF QUEENSLAND

CITATION:

Wallace v Australian Wildlife Conservancy [2016] QLC 43

PARTIES:

Ian Earl Wallace
(applicant)

v

Australian Wildlife Conservancy
(respondent)

FILE NO:

MRA1023-10

DIVISION:

General Division

 PROCEEDINGS:

Application to determination compensation.

DELIVERED ON:

3 August 2016

DELIVERED AT:

Brisbane

A/PRESIDENT:

WL Cochrane

ORDER:

1.    Compensation is determined at the rate of $70 per annum.  The compensation is to be paid annually in advance with the first payment to be made within 30 days of the grant of the mining lease and annually thereafter.

CATCHWORDS:

Compensation – mining lease renewal – (Gold) – grazing property.

Mineral Resources Act 1989 s 279A, s 281

APPEARANCES:

Not applicable

SOLICITORS:

Preston Law for the applicant.
The respondent self-represented.

Background

1. This is an application under ss 279 and 281 of the Mineral Resources Act 1989 (MRA) for the determination of compensation for the impact upon the respondent landowner of the renewal of the applicant’s mining lease (ML) 20416 in the Mareeba district.

2. Mining Lease 20416 is located over Lot 13 on SP 127335, Parish of Mapee, County of Dagmar.

3. The area was previously mined under mining leases 5179 (74.62 ha) and 20264 (82.5364 ha) since 1986.

4. Mine tailings remained on the site from the date of expiry of ML 20264 on 12 June 2003.

5. According to correspondence received from the applicant’s agents Australian Mining and Exploration Title Services Pty Ltd dated 10 August 2011, the applicant Mr Ian Wallace applied for ML 20416 (3.3895 ha) on 10 October 2003 to cover the area of mine tailings with the intention of removing those tailings to extract any remaining minerals from the tailings and to rehabilitate the land. 

6. Associated with the lease is an accessway approximately 2.9 km long with a width of 10 m running from the Mulligan Highway to the subject proposed lease.  The accessway accordingly has an area of 2.9 ha and the total lease sought has an area of 6.2895 ha. 

7. The subject land on which the proposed and previously existing mining leases are located is described as the Brooklyn Nature Refuge, which was acquired by the respondent Australian Wildlife Conservancy in 2004 and which has, pursuant to a conservation agreement with the Queensland Government, been declared a nature refuge.

8. The land is managed for conservation and biodiversity protection pursuant to the terms of a conservation agreement with the government and the subject pastoral lease.

9. In its correspondence to this Court the Australian Wildlife Conservancy raise a number of issues that relate to the impact of the Environment Protection Biodiversity Conservation Act 1999 (Cth) (EPBC Act).

10. The Australian Wildlife Conservancy contend that Mr Wallace will not be able to proceed with his proposed mining activity until such time as he has satisfied the requirements of that Act but that is not a matter in which this Court has any particular interest nor any authority.

11. They also raise a number of issues about what they say should be the terms or conditions which apply to any lease which is granted, but again, in the context of a determination of the appropriate compensation which is payable, that it is not a matter which the Court can take into account at this stage.

12. In their letter of 7 September 2011 they do raise a number of issues relevant to the calculation of the appropriate compensation.  At paragraph f of that letter they say:

    “f.Other losses or expenses which arise should this mining proposal go ahead and which AWC seeks to be taken into account in the amount of not less than $11,000 per year calculated as follows:

    i.An amount to allow for additional biological surveys in the area of the mining lease to monitor impacts on habitat and endangered and other native species:  estimated on the basis of 2 suitably qualified ecologists (at an average rate of $70,000 per annum + 25% for on costs, insurances, loadings etc) for 2 weeks per year = $3,365 plus supervision and provision of vehicle and equipment so say $4,000 per year.

    ii.An amount to allow for additional weed management in the area of the mining lease, given the presence of hymenachne and other weed species on the lease already and the risk of additional weed invasion due to the mining operations:  estimated at $3,000 per year for herbicide and staff time.

    iii.An amount for installing additional fire breaks and for controlled burning to reduce fire risk in the area:  estimated at $2,000 for equipment and staff time. 

    iv.An amount for feral animal monitoring (including pigs, feral herbivores, cane toads, cats and other feral animals which could cause significant damage to native species or habitat):  estimated at around $2,000 for equipment and staff time.

    g.A premium should be applied to the greatest extent available to the Court in respect of the compensation due to the high conservation values of the property and the presence of endangered species in the vicinity of the mining lease which will require considerable additional care, attention and resourcing by AWC if this mining operation proceeds on any basis.

    h.The additional amount determined to reflect the compulsory nature of mining leases should be increased to the maximum amount reasonably available to the Court given the significant nature of the potential impacts on the conservation value and biodiversity of the area and the presence of the endangered species identified.

    i.Any compensation amount awarded should be adjusted each year for CPI increases to cover the increased loss, costs and expenses which will be incurred by AWC over the period of the lease and paid annually to AWC on a date determined by the Court.”

13. That correspondence of 7 September 2011 also contained reference to a conservation agreement and the fact that the subject land has been declared a nature refuge. 

14. The correspondence referred to the subject land containing a number of threatened and endangered species including species which were protected pursuant to the provisions of the EPBC Act.

15. Those are more properly matters which would come to account in any consideration of an environmental permit.

16. By correspondence dated 10 October 2011 the solicitors for Mr Wallace filed a reply to the matters earlier raised by the Australian Wildlife Conservancy.

17. That correspondence was of wide ambit and it was only in paragraph 9 of the reply that the applicant descended to addressing the issues raised by the respondent which bore upon the appropriate amount of compensation which ought be paid.  In paragraph 9 of their reply the applicant said as follows:

    “9.By way of reply the Applicant submits as follows:-

    (a)In relation to paragraphs 2(a) to (i) of the Respondent Landholders Submission dated 7 September 2011:-

    (i)     Paragraph (2a) – the Applicant submits that he will not deprive the Landholder of possession of the Mining Lease area.  Access to and across the Mining Lease area will not only be constrained by mining operations which will only take place on a small part of the Mining Lease at any one time.

    (ii)     Paragraph 2(b) – any mining activity will be conducted in accordance with the Code of Environmental Compliance for a Level 2 Mining Project.  The property is used for pastoral lease purposes and there is no evidence that mining activity will negatively impact on threatened species or habitat.

    (iii)     Paragraph 2(c) – the Applicant Miner does not agree that the Respondent Landholder will not be able to access or use the land for the purposes of conservation work or for management of weeds and fire or for feral animal control.  The Miner will be required to rehabilitate the existing disturbed land and the Applicant Miner will have appropriate plans in place for the management of weeds, fire and feral animals as required by law. 

    (iv)     Paragraph 2(d) – the Applicant Miner submits that access to the Mining Lease area will be improved as a result of maintenance of the access to the Mining Lease by the Miner prior to commencement of mining activities.  Except for areas subject to operational mining activities all parts of the 3.8 hectare Mining Lease will be available to the Respondent Landholder.

    (v)     Paragraph 2(e) – the Respondent Landholder seeks that the Applicant Miner construct locked gates and control access to the Lease area.  The Landholder already has installed gates which are locked at the Peninsula Development Road access to the property.

    (vi)     Paragraph 2(f) – the Applicant Miner disagrees that the Mining Lease causes the following loss or expenses to arise as claimed by the Respondent:-

    a.        additional biological survey;

    b.        additional weed management;

    c.        additional fire breaks; and

    d.        additional feral animal monitoring.

    (vii) Paragraph 2(g) – the Applicant Miner does not consider that a penalty of the type proposed in paragraph 2(g) is appropriate having regard to the terms of section 281(3) of the Mineral Resources Act.

    (viii) Paragraph 2(h) – the Applicant Miner accepts the inclusion of an additional amount of no more than 10 per cent of the aggregate amount under section 281(4)(e) of the Mineral Resources Act.

    (ix)     Paragraph 2(i) – the Applicant Miner agrees to pay any assessed compensation amount annually within one month of the commencement of mining activities on the Mining Lease.”

18. The applicant’s reply concluded:

    “The Applicant Miner submits that the Land Court should determine the amount of compensation payable to the Respondent Landowner at $25.00 per annum, being $5.00 per hectare and an additional amount calculated in accordance with s 281(4)(e) of the Mineral Resources Act.”

19. Section 281 of the MRA is the section which deals with the determination of compensation by the Land Court and at s 281(3) sets out the matters which bear upon the determination of compensation. Relevantly s 281(3)(a) provides:

    “(3)Upon an application made under subsection (1), the Land Court shall settle the amount of compensation an owner of land is entitled to as compensation for—

    (a)       in the case of compensation referred to in section 279—

    (i)deprivation of possession of the surface of land of the owner;

    (ii)diminution of the value of the land of the owner or any improvements thereon;

    (iii)diminution of the use made or which may be made of the land of the owner or any improvements thereon;

    (iv)severance of any part of the land from other parts thereof or from other land of the owner;

    (v)any surface rights of access;

    (vi)all loss or expense that arises;

    as a consequence of the grant or renewal of the mining lease; …”

20. Section 281(4)(e) provides:

    “(4)In assessing the amount of compensation payable under subsection (3)—

    …

    (e)an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount, together with any amount determined pursuant to paragraph (c), shall be not less than 10% of the aggregate amount determined under subsection (3).”

21. Ultimately by correspondence dated 14 November 2013 the solicitors for the applicant wrote to the Court advising as follows:

    “The parties have reached agreement on the matter proceeding in the following way:-

    1.The matter being determined by the Land Court on the basis of documents filed to date by the parties;

    2.The hearing proceeding on the paper; and

    3.The parties refer the Court to the following recent decisions of the Land Court;

    (a)Oosen v Australian Wildlife Conservancy [2012] QLC 0045 – MRA022-12;

    (b)Nielsen v Australian Wildlife Conservancy [2013] QLC 15 – MRA 885-12; and

    (c)Nielsen v Australian Wildlife Conservancy [2013] QLC 16 – MRA 886-12

    4.The parties submit that the compensation determinations made by the Land Court in the earlier matters identified in paragraph 3 are an appropriate way to determine compensation in this matter.”

22. That position with respect to agreed terms of settlement was confirmed by email from the respondent’s legal counsel on Tuesday 14 November 2013. 

23. In each of the cases referred to in paragraph 3 of the agreed position between the parties the determination related to the subject land but was in respect of mining work being carried out, it would seem, on different parts of the subject land and in respect of leases of differing areas ranging from 1 ha up to an area of 8.2 ha.  In each case the renewal period was for either 5 or 6 years compared to the current case in which a term of 18 years is sought over an area of 3.3895 ha plus access of 2.9 ha making a total of 6.2895 ha.  The three determinations by the Judicial Registrar settled upon a figure of $10 per ha per annum. 

24. I have perused the previous decisions raised by the parties and the material which has been presented to the Court including the correspondence setting out the agreement between the parties. 

25. I am satisfied that the level and conditions for compensation previously determined are appropriate in the context of the present lease and taking guidance from those earlier decisions I determine that the compensation should be in the sum of $10 per ha per annum for the whole of the lease area including access plus 10% pursuant to s 281(4)(e) of the MRA.

26. In its correspondence to the Court the solicitors for the applicant suggest that any assessed compensation should be paid annually within one month of the commencement of the mining activities on the mining lease.

27. I do not see any proper basis for circumscribing the time at which compensation should be payable other than to make it payable upon the grant of the mining lease.  The miner has the option of utilising that lease at his leisure but the lease will remain in place for the term which was sought by the miner namely 18 years.

28. Accordingly I determine compensation payable under all heads in the amount of $70 (rounded), (i.e. 6.2895 ha x $10 per ha = $62.895 + 10% pursuant to s 281(4)(e) of MRA = $69.1845). The compensation is to be paid annually in advance with the first payment to be made within 30 days of the grant of the mining lease and annually thereafter.

WL COCHRANE

A/PRESIDENT