De Roma v Gummi Junga Aboriginal Corporation [2024] QLC 30

LAND COURT OF QUEENSLAND CITATION: De Roma v Gummi Junga Aboriginal Corporation [2024] QLC 30 PARTIES: Kevin Alfred De Roma (applicant) v Gummi Junga Aboriginal Corporation (respondent) FILE NOs: MRA095-24 MRA096-24 PROCEEDING: Determination of compensation payable for renewal of mining leases DELIVERED ON: 17 December 2024 DELIVERED AT: Brisbane HEARD ON: Submissions closed 13 November 2024 HEARD AT: On the papers MEMBER: JR McNamara ORDERS: 1. The applicant must pay the Gummi Junga Aboriginal Corporation compensation in respect of ML100340 as follows: (a) Fifty dollars ($50) per annum; (b) The applicant must pay the amount set out in order 1(a) to the Gummi Junga Aboriginal Corporation within one (1) month of the grant of ML100340 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development and then annually on the day of the grant. 2. The applicant must pay the Gummi Junga Aboriginal Corporation compensation in respect of ML100342 as follows: -- 1 of 9 -- 2 (a) One thousand, two hundred and twenty dollars ($1,220) per annum; (b) The applicant must pay the amount set out in order 2(a) to the Gummi Junga Aboriginal Corporation within one (1) month of the grant of ML100342 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development and then annually on the day of the grant. CATCHWORDS: ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the applicant has applied for the grant of mining leases – where the mining leases are for mining alluvial gold – whether and if so, what compensation is payable under s 281 of the Mineral Resources Act 1989 Mineral Resources Act 1989 APPEARANCES: Not applicable Background A mining lease cannot be granted or renewed unless compensation between the miner and any affected landholder is agreed or determined by the Land Court.1 Mr Kevin De Roma has applied for the grant of mining leases 100340 and 100342. Both mining leases are located on the 146,000 ha Bonny Glen Station which is owned by the Gummi Junga Aboriginal Corporation (GJAC). According to Departmental mapping ML100340 is over an area of approximately 1.51ha and access over 1.7ha while ML100342 is over an area of approximately 56.49ha and access of approximately 11.7ha. The Department advised that the maps have a degree of accuracy of -12.5 metres in the cadastre layer. This decision relies on the higher figures for the lease area and access track: for ML100340, 1.52ha for the lease area and 1.7ha for the access road; for ML100342, 57.17ha for the lease area and 11.7ha for the access road. 1 Mineral Resources Act 1989 (Qld) s 279 (‘MRA’). -- 2 of 9 -- 3 Mining lease notices for ML100340 and ML100342 were issued by the Department of Resources on 5 October 2023. Notification of the mining lease applications was sent to GJAC by registered post on 5 October 2023.2 The applicant attempted to contact the GJAC to negotiate a compensation agreement but was unsuccessful. On 18 April 2024, the applicant filed an application in the Land Court for a determination of compensation pursuant to section 281 of the MRA. Land Court proceeding Orders were made for the filing and exchange of compensation material. The applicant filed its compensation statements, including proposed compensation agreements, on 28 June 2024. My determination concerns only compensation. The MRA authorises the Land Court “to settle the amount of compensation an owner of land is entitled to as compensation”. The court may determine the amount/s and the terms, conditions and times when payments aggregating the total compensation shall be payable. Other than the compensation amount/s and payment arrangements I cannot make a determination of compensation which includes conditions, for example, for the renegotiation of compensation in defined circumstances, nor can I recommend or impose conditions on the grant or renewal of a mining lease. The MRA does authorise this court to hear and determine proceedings with respect to any determination or review of compensation and the enforcement of any agreement or determination of compensation. However, a proceeding of that kind could only be launched after (not before) the grant or renewal of the mining lease where the landholder or the miner consider that the factual circumstances give rise to the need for such an application to the court. The applicant’s proposed compensation agreement for ML100340 and ML100342 have the same conditions, except the proposed annual compensation amounts for each lease. A landholder does not bring the compensation application nor have control over the process. Often, a landholder is “on the backfoot”. A First Nations corporation 2 Ibid s 252A. -- 3 of 9 -- 4 landholder is challenged because of the often complex decision-making process it needs to follow. Most office bearers of First Nations corporations are unpaid volunteers. There might be a sequence of instructions required of the corporation board. For example, the appointment and availability of a negotiator/s; instructions to negotiate and the extent of those instruction; instructions to reach agreement-in- principle; and finally a presentation to and the agreement of the board to the compensation, terms and condition. The regularity of First Nations corporation board meetings depends on the volume of business they conduct. The logistical arrangements and the significant cost of convening a board meeting means they might only be held where there is a critical mass of work to be done, and there is funding to enable a meeting to occur. For some this might be only once a year. All these factors impacted the ability of the GJAC to execute an agreement. The GJAC did not file a response to the applicant’s compensation statement. On 30 August 2024, the parties advised the court that there had been some progress in negotiations regarding compensation. The court was advised that the GJAC was however not in a position where it could finalise and execute an agreement. The applicant subsequently filed what it described as the “latest versions of the proposed compensation agreements” between the parties and related email correspondence between the parties. The proposed compensation agreements are not executed by either party. The correspondence indicates a constructive approach to negotiations by providing a draft agreement, which included maps, the mining lease applications, the Department of Resources Guide to Landholder Compensation and the Land Court referral. The applicant also invited the GJAC to provide its own form of agreement if it preferred. The correspondence also indicates progress made in negotiations with the person assisting the GJAC. The position that I was told the parties reached is as follows. For ML100340, the mining lease area and the access were each rounded up to 2 hectares. The mining lease area was 2 hectares at $20/ha per year, which comes to $40 per year and the access area of 2 hectares at $5/ha per year which comes to $10 per year. In total, compensation for ML100340 is $50/year. -- 4 of 9 -- 5 For ML100342, the mining lease area was rounded up to 58 hectares and the access was rounded up to 12 hectares. The mining lease area was 58 hectares at $20/ha which comes to $1,160 and the access is 12 hectares at $5/hectare which comes to $60. In total, compensation for ML100342 is $1,220 per year. I was later advised by the respondent, in writing and in a review before me, that GJAC did not agree to a rate of $5/hectare for access. GJAC’s view was that they had discussed a rate of $20/hectare for compensation for both the mining lease area and for access. The GJAC communicated this position to me in an email sent on 13 November 2024, in which they also made some submissions about the effect of the mining leases on Bonny Glen Station. The applicant’s position remains that access is to be calculated at a rate of $5/hectare. The mining leases Both mining leases are for a term of 15 years. Although the resource authority public reports for both mining leases say that they allow the mining of “elluvial, colluvial and alluvial gold, and elluvial, colluvial and alluvial tin”, 3 the mining lease notices and mining lease work program state that the mining leases are solely for gold (specifically, alluvial gold). The purpose of the mining leases is described as “Living quarters / camp, Tailings / settling dam, Workshop / machinery / storage”.4 The applicant expects to start mining as soon as the permits are granted, and the mining leases will be worked concurrently.5 The mining lease program for ML100342 additionally states that the applicant will work concurrently on ML100253 which is nearby, although does not appear to overlap Bonny Glen Station. The applicant says that the size and shape of the application covers the rivers and creeks where mineralisation occurs. A small campsite may be erected at the start of each season. A semi-mobile plant will be used to process material from the creek beds, and then placed back in the creeks. As such, the applicant says, rehabilitation will be ongoing on a daily basis and will be completed prior to moving to a new section of the creek. 3 Resource authority public report, 3. 4 Ibid 4; Mining Lease Notice 100340; Mining Lease Notice 100342. 5 Mining lease mining program. -- 5 of 9 -- 6 Approximately 200m of material per day, 5 days a week will be processed throughout the dry season, and the applicant says this will typically wind down in the wet season. The applicant describes the operation as a “small affair” with 1-2 persons on site at a time. The Statutory Criteria I must make my decision with reference to the criteria in the MRA. My assessment of compensation is not arbitrary. Will there be a deprivation of possession of the surface of the land? s 281(3)(a)(i) There is no evidence before me to indicate that the mining leases would result in a permanent loss of the lease areas. There is no evidence that GJAC will be physically deprived of the land the subject of the mining claim. Will there be diminution of the value of the land? s 281(3)(a)(ii) There is no evidence to suggest that there will be diminution of the value of Bonny Glen Station if the mining leases were to be granted. The applicant submits that the material processed from the creek will be placed back in the creek. Rehabilitation will occur on a daily basis. Will there be diminution of the use made or which may be made of the land? s 281(3)(a)(iii) GJAC will not be permanently deprived of use of the land the subject of ML100340 and ML100342. Except to the extent described at [34] below, there is no evidence that productivity of the land will otherwise be diminished at all or permanently. The mining will take place using a semi-mobile plant used to process material from the creeks. There is no information about the size of the semi-mobile plant. In its correspondence on 13 November 2024, the GJAC submitted that the leases are on Bonny Glen’s primary grazing paddock which encompass primary permanent water points; the access is via primary station roads. The GJAC also submits that the leases would exclude the use of a long term, permanent lick shed and trapping site. -- 6 of 9 -- 7 They say that the leases are less than a kilometre from the homestead, suggestive of some impact on their peaceful use and enjoyment of the property. In my view, the operations on ML100340 and ML100342, being 1 or 2 person operation, would have no measurable effect on the operations of the GJAC on the rest of Bonny Glen, a 146,000ha property.6 However, I accept that the mining operations and the erection and occupation of a campsite will prevent the respondent from using the land the subject of the mining leases during the period of the mining lease. There would likely be some effect in the vicinity of the leases which includes the noise, dust and vibrations of the machinery and the movement of vehicles.7 These factors may affect cattle in the grazing paddock. I emphasise however that there was no evidence concerning what, if any, cattle operation is currently undertaken or is planned during the lifetime of the mining leases. There is no evidence before me to indicate that the respondent would incur any other loss or expense because of the grant of the mining leases.8 Therefore, compensation will be decided on the basis of the diminution of the use of the land. In previous compensation decisions in which GJAC has been a respondent, I have found that $10/hectare is a ‘not unrealistic’ assessment of compensation for Bonny Glen Station.9 In this case the parties negotiated a more favourable agreement with respect to the lease areas ($20/hectare). I am of the view that that is justified for the reasons described at [32] above. In Tempo the total mining lease area was approximately 166.9ha; however the applicant only had 30-40ha of the area “left to mine”. In Lynch, the area was approximately 13.4ha and in McFarlane it was 1.44ha (including access). In this case, there are two mining leases, the total areas of which are approximately 3.22ha and 69ha, and there is no evidence before me to suggest that the applicant is only going to mine a portion of the lease areas. 6 McFarlane v Gummi Junga Aboriginal Corporation [2023] QLC 9 [32] (McFarlane). 7 Ibid [33]. 8 MRA s 281(3)(vi). 9 McFarlane; Lynch v Gummi Junga Aboriginal Corporation [2022] QLC 18 (Lynch); Tempo 3 Pty Ltd v Gummi Junga Aboriginal Corporation [2021] QLC 34 (Tempo). -- 7 of 9 -- 8 Taking into account the GJAC’s submission that the mining leases are located in close proximity to the homestead, and that access to certain areas and facilities are likely to be affected (the lick shed and trapping site), I find it reasonable to conclude that compensation should be awarded at the rate of $20/hectare per year for mining lease areas and $5/hectare per year for access. These figures are inclusive of the additional 10% granted to reflect the compulsory nature of the action taken pursuant to s 281(4)(e). Conclusion Compensation for the mining leases for diminution of the value of the land is calculated at $20/ha for the lease area and $5/ha for access. For ML100340, the compensation amount for the 2ha (rounded up from1.52ha) lease area over the 15 year mining lease period is $600. The compensation amount for the 2ha (rounded up from1.7ha) access area over the 15 year mining lease period is $150. In total, this is $750. Per annum, it is $50. For ML100342, the compensation amount for the 58ha (rounded up from 57.2ha) lease area over the 15 year mining lease period is $17,400. The compensation amount for the 12ha (rounded up from11.7ha) for the access area over the 15 year mining lease period is $900. In total, this is $18,300. Per annum, it is $1,220. Orders 1. The applicant must pay the Gummi Junga Aboriginal Corporation compensation in respect of ML100340 as follows: (a) Fifty dollars ($50) per annum; (b) The applicant must pay the amount set out in order 1(a) to the Gummi Junga Aboriginal Corporation within one (1) month of the grant of ML100340 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development and then annually on the day of the grant. 2. The applicant must pay the Gummi Junga Aboriginal Corporation compensation in respect of ML100342 as follows: (a) One thousand, two hundred and twenty dollars ($1,220) per annum; -- 8 of 9 -- 9 (b) The applicant must pay the amount set out in order 2(a) to the Gummi Junga Aboriginal Corporation within one (1) month of the grant of ML100342 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development and then annually on the day of the grant. -- 9 of 9 --