Congoo v Burtenshaw [2011] QLC 57

LAND COURT OF QUEENSLAND CITATION: Congoo v Burtenshaw [2011] QLC 57 PARTIES: In the matter of Mining Lease 20625 – Application by Thomas Congoo for determination of compensation payable to Garry Burtenshaw & Rosemary Burtenshaw FILE NO: MRA167-11 PROCEEDING: Application for determination of compensation DELIVERED ON: 2 September 2011 DELIVERED AT: Brisbane MEMBER: Mr BR O’Connor, Judicial Registrar ORDER/S: 1. I determine compensation under s.281 in the sum of $1,450. 2. I award an additional amount of $145 in accordance with s.281(4)(e). 3. I direct that the miner pay the total compensation in the sum of $800 to the current landowner within three months of notification of grant of the mining lease by the Mining Registrar and a further $800 on the fifth anniversary of the granting of the mining lease. 4. No order for costs. CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION Mineral Resources Act 1989, ss 279, 281 S.P. White v Warner [2003] QLRT 40 Smith v Cameron [1986-87] 11 QLCR 64 Shaw v Heritage Holdings Pty Ltd [1992-93] 14 QLCR 139 APPEARANCES: Not applicable – Heard on the papers Background [1] The applicant Thomas Congoo (the miner) seeks the grant of Mining Lease 20625 in the Mareeba District for a term of 10 years. The application was lodged at the office of the Mining Registrar, Mareeba on 15 July 2009. -- 1 of 7 -- 2 [2] The lease is located on Lot 230 on Plan No. AP4557 (Coolgarra Station, Mount Garnett) a property owned by Garry Burtenshaw and Rosemary Burtenshaw (the respondents). Access is through the same property. A grazing operation is conducted on the property. The lease is over a surface area of 8.8 ha and is sought for the purpose of mining for gold and other minerals. For the purpose of this application, I round off the area to 9 ha. The Act [3] Section 279 of the Mineral Resources Act 1989 ("the Act") provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed at the office of the Mining Registrar, or in the absence of such an agreement, a determination of compensation has been made by the Court. In this instance, no agreement has been lodged with the Mining Registrar and the matter has been referred to the Court for determination. [4] The matters which must be considered by the Court are set forth in s. 281(3) of the Act. Although s. 281 sets out the matters to be considered, it does not define any method of assessment. The following Land Court case reports may offer some guidance in determining the approach to be adopted. [5] In Smith v Cameron (1986) 11 QLCR 64, the Land Court held at p.74… "The section in my opinion merely identifies matters which shall be taken into consideration in making the assessment. It does not prescribe a method of valuation. No doubt each case will depend on its own facts and circumstances but it seems to me that either method is open to the valuer." [6] In Shaw v Heritage Holdings Pty Ltd (1992-93) 14 QLCR 139, the Court at p.146 said: "the method of assessment remains a matter which will be governed by the facts and circumstances of each case in which event emphasis may shift from one method to another." [7] In considering Mitchell v Oakhill and Mitchell (10 March 1998) unreported, the President of the Land Court, referring to s.281(3) of the Act, found "the latter section does not prescribe a method of assessment. In my view, as long as the amount of compensation finally determined sufficiently accounts for each of the matters referred to in the sub-section, it is not necessary to quantify an amount in respect of each of the matters referred to." Contentions of Parties [8] Both parties have provided written submissions in the matter (including a response submission by the applicant). I have carefully perused these and now summarise the principal contentions by either side. -- 2 of 7 -- 3 Applicant's Case  The respondents wrongly characterise the equipment proposed to be used as "…heavy machinery, light vehicles, trucks …" which gives the impression of considerably more vehicles than the four vehicles in total that will be used; and that the size of the machinery is that of a kind that would be used in a larger mine operation; only 1 x 30t excavator, 1 x D6 dozer and 1 x 10t dump truck will be used.  The number of personnel on the mine site will, on average, be five persons. There may be times that the number will increase up to 10 persons on site, which would be for short periods only.  The respondents refer to the applicant proposing to "… make a mine training school for young [I]indigenous People "”. It is accurate to state that the applicant intends to offer training to indigenous people but the characterisation of it being a 'training schoo'’ overstates the method of offering such training. In short, as a vacancy arises, the position will be offered to an indigenous person who will be employed on site and undertake on-the-job training as may be required.  The original mining lease area was 23.8266 hectares which did include dam waters. Following discussions with the respondents, some 14 hectares of that original area were abandoned for the express purpose of excluding those waters thereby eliminating the immediate impediment of cattle accessing the waters.  Certain regulations require the fencing of operations, including equipment, and the applicant will indeed do all things necessary to ensure that those regulations are complied with. To the extent that areas of ML 20625 are not required to be fenced, the passage of cattle will not be impeded.  The applicant rejects the comparison of his operations to two companies and their operations:  Consolidated Tin Mines Pty ltd is listed on the Australian stock exchange and proposes widespread operations throughout the district, including operations affecting the respondents' Occupational Lease; and  MGT Mining Ltd has a mining lease application, the area of which is in excess of 1,000 hectares and a tin processing plant on site, one of only two in Australia (the other being in Tasmania).  The impact of the operations of both CSD and MGT Mining bears no comparison to the impact of the proposed operations of the applicant and therefore the amount of $100.00 per hectare, per annum sought is wholly unreasonable. -- 3 of 7 -- 4 Respondents' Case  This application states that it will have buildings, storage areas, mechanic workshops and living facilities on the lease area.  The lease operations will have significant impact on the cattle in the area and the respondent’s ability to manage them.  The applicant has situated his mining lease next to the respondents' cattle dam and where the northern paddock cattle have made their camp for many years. It is high and cool in the summer with plenty of water. The applicant has said that cattle can traverse his lease but this will not be possible.  The respondents have spoken to their insurance company who advise they have a duty of care and cattle cannot be wandering through a mine site under Workplace Health and Safety regulations. The area will need to be fenced and this will create a barrier to the cattle’s normal camp.  The intended construction of new buildings, heavy machinery, light vehicles, trucks and the constant presence of people will cause significant disturbance to the cattle and grazing operation when the applicant does start mining.  Consolidated Tin compensate the respondents at the rate of $100 per ha annum and have recognised the value of the land and the degree of disruption caused to grazing operation. Consolidated Tin has also contracted work to the respondents to assist with the disruption and financial loss being incurring. Also MGT who are very close to where the applicant seeks to be granted his lease pay $20 per hectare per annum and signed a compensation agreement that the respondent will carry out all the earthworks, making the value of the compensation well over $100 per hectare per annum.  The amount proposed by the applicant will not cover the wages for 1 man on an ATV, taking one day to inspect fencing, tracks and check the cattle in the area. This will need to be done at least once a week, more often during the wet and the fire season. This is the minimum time for the farm hand to check the area, given the level of proposed mining by the applicant.  The proposed level of compensation trivialises the contribution farmers and graziers make generally to the local community and the large amount of work required to monitoring cattle in the mining lease area. -- 4 of 7 -- 5 Applicant's Response  Nature of Operation: The respondents' lands have been subject to previous mining activities and the proposed operations are now directed to extracting the minerals from sand tailings. There will be no disturbance to lands previously undisturbed by mining operations.  The primary focus is on extracting tin. A processing plant will be established approximately 100 metres from the tailings.  Hours of operation: the mining activities are expected to run for a 12 hour period (6.00am – 6.00pm) on weekdays only. The processing plant is expected to operate of a maximum of six hours per day.  There is little grassland around the immediate vicinity of the proposed operations; however, the applicant is content to have cattle traversing lands subject to the lease. It is not anticipated that the proposed operations will compromise the use of the lands for grazing purposes.  Other mining and exploration activities currently occur on Coolgarra Station.  The mining lease area affects the Bar Barrum People native title determination application which is subject to the Bar Barrum People Small Scale Mining and Exploration Indigenous Land Use Agreement (ILUA). All requirements under the ILUA have been met.  Communications between the applicant and the respondents suggest that the respondents are of the belief that the applicant is in a position to compensate by way of an Indigenous Land Use Agreement (ILUA) that would provide for an upgraded tenure in favour of the respondents.  The application of ML 20625 was made by the applicant as a private, individual miner. The application is not made on behalf of the Bar Barrum People. The applicant has no authority to enter into such an ILUA on behalf of the native title party, in a private, individual capacity.  Given the nature of the mining operations will not cause further disturbance to the lands, the minimal impact on current uses of the land and ongoing access to and from the site will be twice weekly by a single vehicle, the following compensation amounts are proposed:  Mining Activities: $3.00 per hectare, per year  Access: $2.00 per hectare, per year -- 5 of 7 -- 6 Consideration of Evidence [9] As the parties have agreed to the determination of the matter on the papers without the benefit of full oral hearing, some of the assertions made by the parties cannot be fully tested or clarified. Also, I note that neither party produced any valuation evidence from professional valuers; however a case of this nature would not normally expect the presentation of such evidence. [10] I further observe that the proposal by the respondents to have the applicant negotiate an agreement with the aboriginal group who may have a claim over the land to enhance the upgraded tenure of the respondents land is not a consideration in the decision in this matter. The applicant states that he is merely one of the relevant Aboriginal group and could not make a binding decision on its behalf. [11] The lease area concerned is currently used for grazing purposes, is a relatively small area with a small proposed operation with mining essentially to process tailings from previous mining operations. The area has been considerably decreased from some 23 hectares to the current 9 hectares after concerns by the respondent that water facilities for his cattle may be otherwise impeded. [12] There are a number of other mining operations already conducted on the respondents' property. Some of these miners have entered into attractive settlement deals with the respondents, however these are considerably larger operations and the miners are substantial companies. [13] Regarding the claim that the proposed mine site is to be used for training purposes, I accept the applicant's contention that the mine may be used for limited training but this is not likely to impact on the overall operations of the mine. There are requirements that any hazardous operations of the mine should be fenced under the relevant State regulation. The cattle are able to graze other areas of the mining lease which would not endanger their operation. Any conduct of either party outside permissible standards could be actioned under the wider civil provisions of the Mineral Resources legislation. [14] Overall on the material before me, I do not consider the proposed operation to be outside that previously considered in similar cases where awards akin to that offered in the applicant’s response have been made. Order I order that compensation be determined in the amount of $15 per hectare per annum for the mining area and an additional amount of $100 in total for the provision of compensation for access over the property. A further amount in accordance with the provisions of s.281 of the Mineral Resources Act should be -- 6 of 7 -- 7 also allowed. Total compensation thus amounts to $1,600 (rounded). Compensation should be payable with 50% payable within three months of the grant of the mining lease and the remainder payable on the fifth anniversary of the date of the granting of the lease. Each party are to bear their own costs. BR O’CONNOR JUDICIAL REGISTRAR -- 7 of 7 --