Endeavour Mining Pty Ltd v Mintram & Anor [2009] QLC 187 (2009) 30 QLCR 272

LAND COURT OF QUEENSLAND CITATION: Endeavour Mining Pty Ltd v Mintram & Anor [2009] QLC 187 PARTIES: In the matter of Mining Leases No 30077 and 30078 – Determination of compensation payable by Endeavour Mining Pty Ltd to Lance William Mintram and Joan Edna Mintram FILE NO’s: MRA1337-08 and MRA 1341-08 PROCEEDING: Application for determination of compensation DELIVERED ON: 27 November 2009 (ex tempore) DELIVERED AT: Atherton MEMBER: Mr PA Smith ORDERS: 1. As regards the renewal of ML30077, the miner pay compensation to the landholders in the sum of $1,250.00 within 28 days of the date hereof. 2. As regards the renewal of ML30078, the miner pay compensation to the landholders in the sum of $1,250.00 within 28 days of the date hereof. CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION – COMPULSORY NATURE OF ACTION – ADDITIONAL AMOUNT Mineral Resources Act 1989, ss 279A, 281, 363 APPEARANCES: Mr and Mrs Mintram in person. No appearance by Endeavour Mining Pty Ltd Background [1] The Court has before it an application to determine compensation with respect to two mine leases, being ML30077 and ML30078. The matters were referred to the Land Court by the Mining Registrar, Georgetown District Office, as compensation had not been agreed between the landholders and the miner with respect to the renewal application. -- 1 of 5 -- [2] These matters are proceeding under section 279A of the MRA. Both mining leases are for an area of 10 hectares. The mining leases share what appears to be an identical tenure history having been originally marked out on the 8 June 1992, commenced on the 1 March 1993 for a term of five years, renewed on the 1 March 1998 for a term of five years and renewed again on the 1 March 2003 for a term of five years. The ownership of the mining leases since 15 February 1995 has been Endeavour Mining Pty Ltd. [3] The matter has been called on for hearing in Atherton today and there has been no appearance by Endeavour Mining Pty Ltd. The Court has received no written submissions or other correspondence from Endeavour Mining Pty Ltd indicating that they would be appearing or not appearing or providing any advice to the Court whatsoever. [4] Mr and Mrs Mintram, the landholders, have both appeared today and Mr Mintram has given evidence on their behalf. During his evidence Mr Mintram indicated that he has had some negotiations with Endeavour Mining via its principal Mr Kinmonth. As a result of some discussions that the landowner and the miner have had there has been some remedial work done on the mining lease application areas, particularly the removal and burial of wastes, including lead products, which may be of danger to cattle. However, an outstanding issue regarding a cyanide leak from the tailing dam which occurred in 2004 has not been resolved on the basis as stated under oath by Mr Mintram that the mining company through Mr Kinmonth did not have the available funds at this time to make good the loss that had been occasioned by the landholders. [5] I accept Mr Mintram as an honest witness and accept all of the evidence that he has given to the Court today. In addition to his oral evidence he has provided the Court with three documents. Exhibit 1 is his statement relating to compensation provided to the Court and to the miner. Exhibit 2 is a letter relating to another mining lease on his property, which gives details of the costs involved for a beast area per breeder (a breeder beast area) and Exhibit 3 is the code of conduct for landholders and explorer relations. [6] Mr Mintram has indicated that he does not want to spoil anyone's livelihood and just wishes to see the mining program cleaned up and operated property, but if it is not to be cleaned up and if he is not to be compensated he would like to see the mine closed up. [7] On the material that I have before me what I must determine is the amount of compensation for a five year renewal of the mining leases which would date from the 1 March 2008 to the 28 February 2013 and I will deal with that determination of compensation now and, for the purposes of my analysis of the evidence, I am making one determination of compensation which covers both leases. [8] The compensation, given that the leases are of a same size, can effectively for any administrative purposes required by the Mining Registrar, be taken as being 50 per cent of the award that I give in total as represented by each mining lease. I will reflect this in the orders. -- 2 of 5 -- [9] It is always difficult for the Land Court to make any determinations on compensation with limited material before it. It is also understandable that regularly there is limited material before the Court due to the low values involved. In short, it is often economically unreasonable to expect either miners or landholders to spend a very large amount of money on legal and valuation and other fees when the actual compensation will not go anywhere near covering the costs involved in producing evidence to cover the compensation. That would appear to be the case in this matter. [10] Doing the best of what I can with what is before me I accept the evidence by Mr Mintram that the mining leases combined equate to what he refers to as beast breeder area and that the loss of the beast breeder area over a period of five years equates to the sum, in real terms to his business, of $1,500. I find that loss proved. [11] I also note that there are difficulties with the mining leases as regards to the waste that is left around the mine site, difficulties with gates et cetera. This would no doubt have an impact on the management costs of the property and the additional work that the Mintrams are forced to do because of these activities and although that has not been quantified, I am prepared to allow an amount of $100 per year for additional management costs incurred by the Mintrams which over a five-year period amounts to $500 for management costs. [12] The next point that I need to turn to is a claim by the Mintrams for the sum of $9,000 being the costs associated with the loss of 15 head of breeding cows as a result of stock drinking water contaminated by cyanide as a result of a tailings dam failure from the mine in 2004. That matter has been clearly brought to the attention of the miner in correspondence tendered to the Court as Exhibit 1 and I note that that has also been brought to the miner's attention in accordance with the correspondence in Exhibit 2 from 3 January 2006 which relates to the same mining company. [13] From the material provided in evidence I am in no doubt that Endeavour Mining is very much aware of the losses that they have occasioned to the Mintrams as a result of the failure of their tailings dam and that justice and equity demand that the Mintrams should be compensated for any losses that they have incurred in that regard. I am not, however, able to make a determination with respect to those losses with regards to the current claims for compensation for renewals of mining leases. [14] What needs to occur is for the Mintrams to bring their own action other than these two actions which are referrals via the Mining Registrar. The Mintrams need to bring their own action under the Mineral Resources Act 1989 (“MRA”) and the appropriate section of the MRA for any such action is section 363(2)(h) of the Act. I grant leave to the Mintrams to commence an action under section 363 of the MRA and require them to file the appropriate application and any supporting material in the Land Court within a period of 28 days from today's date and for that action to be served on Endeavour Mining. [15] I am also prepared to accept that the evidence provided by the Mintrams today in this matter may be used as evidence in their application for compensation with -- 3 of 5 -- respect to the loss of beasts as a result of the cyanide poisoning. In the interests of equity and fairness the Court must give Endeavour Mining an opportunity to respond to the claim for loss of cattle by a separate action and that will be done by the Court by a directions hearing or by correspondence once the new application is filed. The matter would then be either dealt with on the papers or by another hearing which could occur by telephone if necessary. [16] It is regrettable that I am not able to deal with the matter of the losses incurred for the cyanide poisoning today but the processes and the legal requirements in the MRA are matters which I must strictly follow. [17] The final matter to be dealt with relates to the compulsory nature of the mining lease. The provisions of the MRA section 281 (4)(e) allow for an amount that is not less than 10 per cent of the aggregate determined compensation to be allowed and to reflect the compulsory nature of the mining lease that the landholders find themselves with in the circumstances. [18] Due to the compulsory nature of the renewal processes and due to the length of time that the mining has been continuing without major efforts by the miner to have this matter resolved and his failure to place any material before the Court today but due even more particularly with the nature of the impact the mining is having on the Mintram's property, the expense that they have to go to travel long distances to appear in Court today because the matter could not be settled by negotiation and also because of the evidence of the failure of the tailings dam which I accept as truthful and the evidence of the untidy nature of the mining operations that are occurring on the land, in the circumstances of this matter, I consider the 10 per cent to be not sufficient to properly reflect the compulsory nature of the renewal of these particular mining leases and instead I order that the amount to represent the compulsory nature of the mining leases be 25 per cent. [19] In short, that means that for the total mining leases combined the compensation will be $1,500 for loss of breeder area, $500 for management fees covering both leases for five years which is an amount of $50 per lease per year making a total of $2,000, with an additional amount of 25 per cent to recognise the compulsory nature of the mining lease renewals in these matters which is an amount of $500, making a total amount for the renewal of both mining leases of $2,500, or with respect to each mining lease the sum of $1,250 per mining lease. Determination [20] I will now formally order that the miner pay to the landholders the sum of $2,500 for compensation for renewal of mining leases number ML30077 and ML30078 within 28 days of today's date and that the compensation is determined in the sum of $1,250 with respect to each mining lease. That concludes my determination of compensation in this matter. -- 4 of 5 -- Orders 1. As regards the renewal of ML30077, the miner pay compensation to the landholders in the sum of $1,250.00 within 28 days of the date hereof. 2. As regards the renewal of ML30078, the miner pay compensation to the landholders in the sum of $1,250.00 within 28 days of the date hereof. PA SMITH MEMBER OF THE LAND COURT -- 5 of 5 --