Barry v Barrett [2002] QLRT 2

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Jason Andrew Barry v Rodney Keith Barrett [2002] QLRT 2 PARTIES: In the Matter of Mining Lease 70234 – Referral by Mining Registrar for determination of compensation payable by Jason Andrew Barry to Rodney Keith Barrett. FILE NO/S: MLC00096/2001 PROCEEDING: Referral for determination of compensation DELIVERED ON: 8 February 2002 DELIVERED AT: Brisbane HEARING DATE: 13 December 2001 PRESIDING MEMBER: Kingham DP ORDER/S: 1. I determine compensation under s. 281(3) in the sum of $2,050 at [44] 2. In accordance with s. 281(4)(e), I award an additional amount of $205. at [44] 3. I direct that the miner pay the total compensation to the landowner within 1 month of the grant of the mining lease. at [44] CATCHWORDS: MINING LEASE – DETERMINATION OF COMPENSATION – PARA PROFESSIONAL COSTS AS COMPENSATION Mineral Resources Act 1989, ss. 276, 279, 281, 286 363(2) Land and Resources Tribunal Act 1999, ss. 49, 50, 51 Environmental Protection Act 1994, s. 590 Administrative Appeals Tribunal Act, Cth, s. 33 Supreme Court Act 1995, s. 209(2) Bucholz & Ors v Great Mines Ltd & Charters Towers Mines NL (1987) 11 QLCR 269 Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111 Horn v Sunderland Court [1941] 2 KB 26 Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 382 -- 1 of 14 -- Merivale Motel v Brisbane Exposition and South Bank Redevelopment Authority (1985) 10 QLCR 268 Northern Safecorp and Bellino v Parsons [2000] QLRT 20 Richardson & Barrett [2001] QLRT 89 Secretary of the Department of Veterans’ Affairs v Studdert [2001] FCA 1642 Smith v Cameron (1986-87) 11 QLCR 64 Szirtes v Pine Rivers Shire Council (1969) 36 C.L.L.R. 103 Wills v Minerva Coal, unreported, Land Court 27 November 1998 Zimmerebner v Hawkins & Anor (1999) 20 QLCR 71 COUNSEL: N/A SOLICITORS: N/A AGENTS: Mr G Houen for the Landowner JUDGMENT and REASONS Background [1] The Applicant, Jason Andrew Barry (“the miner”) applied on 9 June 2000 for a mining lease over an 8.998 ha parcel of freehold land on the property known as “Mt Clifford” owned by the Respondent, Rodney Keith Barrett (“the landowner”). Deputy President Smith (Smith DP) of this Tribunal recommended the lease be granted, subject to certain conditions, on 27 July 2001. The landowner and the miner did not agree upon compensation within the statutory time frame and the Mining Registrar referred the matter to the Tribunal for determination of compensation.1 [2] The application was heard in Emerald on 13 December 2001. An agent, Mr Houen, represented the landowner. The miner was unrepresented at the hearing, although he did have the assistance of an agent in preparing written submissions to the Tribunal. [3] Neither party relied upon expert evidence regarding the impact of the proposed mining on the value of the land. However, both parties made reference to a valuation prepared and evidence given by a registered valuer, Russell Brown, in a compensation hearing for a different mining lease on the same property (the 1 s. 279(5) Mineral Resources Act 1989. -- 2 of 14 -- Richardson lease).2 I have addressed the treatment given to Mr Brown’s valuation and evidence in the Richardson lease below. In determining compensation, I have taken into account the material provided to the Tribunal by the Mining Registrar and the material filed or tendered by the parties. In these reasons I refer to the salient points but not all the evidence that I relied upon in making my findings. Compensation claims [4] The landowner sought a sum of $18,876.00 comprised of the following amounts: Loss of possession of the MLA area $2,160.00 Loss of value of owner’s land and improvements $15,000.00 Total $17,160.00 Additional amount under s.281(4)(3) $1,760.00 TOTAL COMPENSATION CLAIM $18,876.00 [5] The miner asserted that appropriate compensation was $748.00 comprised of the following amounts: Depreciation of possession - $16/yr for 5 years $80.00 Diminution of value - 3 1/3 of $1,800 $600.00 Section 281(4)(e) - 10% of total $68.00 Total Compensation $748.00 In addition to that sum, although the miner disputed the land was properly valued at $300/ha, the miner offered $300/ha of disturbance per year for the five year term of the lease. The miner gave evidence that less than 1 ha will be disturbed at any time. In evidence he confirmed that the offer was for an additional $300 per year for the term of the lease, or $1,500 overall. Thus the total sum proposed by the miner was $2,248. Compensation principles [6] Section 281 of the Act defines the landowner’s entitlement to compensation and lists a number of matters that must be considered by the Tribunal in assessing compensation. I have adopted the approach taken by Mr Scott in the Land Court in Wills v Minerva Coal.3 That is, that the matters set out in the section are concepts to be taken into account in determining compensation, rather than heads of 2 Richardson v Barrett [2001] QLRT 89. 3 Unreported decision of the Land Court 27 November 1998. This is consistent with the authorities dealing with compulsory acquisition of land, including Hughes v Doncaster Metropolitan Borough Council [1991] 1 AC 382 and Director of Buildings and Lands v Shun Fung Ironworks Ltd [1995] 2 AC 111. -- 3 of 14 -- compensation requiring separate and discrete treatment to arrive at an accumulated figure. In determining compensation, the overriding principle is of equivalence, ensuring that, so far as money can do it, the landowner is placed in the same position as if the mining lease was not granted.4 Evidence Landowner’s evidence: [7] The landowner sought to rely on a number of unsworn statements, letters and documents, the authors of which were not called to give evidence. The miner did not object to the Tribunal receiving this evidence. The Tribunal is not bound by the rules of evidence but must observe natural justice.5 In exercising my discretion in relation to the reception of evidence, I have been guided by the principle of relevance. I have determined what weight to give to the evidence according to the form in which it was presented and conclusions I drew about its reliability. [8] The evidence adduced by the landowner, other than that given by him personally was:  a written assessment of land type and stocking capacity by Ken Dixon, Soil Conservationist, DNR Emerald;  a letter from Maguires Pty Ltd, real estate and livestock agents in Emerald, including a list of sales in the area;  a witness statement of Mr Hayes, real estate and stock agent in Emerald, prepared in relation to another compensation matter;  a newsletter, “The Rural Review”, dated 1 June 2001, prepared by Herron Todd White. [9] The following is a summary of my conclusions about that evidence and the reasons for those conclusions. Further reference is made to this evidence at appropriate passages in these reasons. 4 Horn v Sunderland Court [1941] 2 KB 26 at 43 per Jacobs J. 5 s. 49 LRT Act. -- 4 of 14 -- Mr Dixon’s letter: [10] The landowner sought to rely on Mr Dixon’s assessment of the land type affected by this mining lease application, but not the stocking capacity he assessed for each land type. Mr Dixon viewed areas subject to a number of mining leases or applications, including the subject application. He stated that those areas were “principally situated on the more productive creek flats”. It is not clear from Mr Dixon’s assessment whether this lease area was one of those situated on the more productive creek flats. As Mr Dixon was not called to clarify his statement, and I am not prepared to speculate as to his meaning, I do not accept that his assessment is evidence of the land type affected by this mining lease. [11] On the other hand, I have taken into account his assessment of the stocking capacity of the different land types on Mt Clifford. The landowner gave evidence that he runs more cattle on Mt Clifford (600 beasts) than the overall capacity assessed by Mr Dixon (298 animal equivalents) and submitted that Mr Dixon’s assessment was conservative. Mr Dixon’s assessment was based on a Department of Primary Industries publication detailing recommended living area standards for Queensland grazing properties including the Emerald shire. He concluded that “Mt Clifford” is significantly less than the suggested viable living area standards for cattle properties in the Emerald shire. In the light of that assessment, it is possible that the landowner has overstocked his property. In the absence of alternative evidence about the stocking capacity, and to the limited extent that it is relevant to my assessment of compensation,6 I prefer the evidence of Mr Dixon to that of the landowner. Mr Maguire’s letter: [12] The landowner sought to rely on a letter from Mr Maguire, a real estate and stock agent, supported by recent sales of properties said to be comparable to Mt Clifford. The original letter was not produced and, on the photocopy tendered, the firm’s logo obscured part of it. The landowner’s agent informed me that the obscured portion of the letter indicates the overall value of Mt Clifford is $175/ha. The letter also stated that the superior flat grazing lands would be expected to realise a price in the region of $300/ha. Mr Maguire did not specifically refer to this mining lease 6 See discussion at paragraph [22]. -- 5 of 14 -- or indicate that it falls within the superior flat grazing lands. At the time the letter was written, there were a number of current applications on this property. I also note the author’s qualification that the letter that was not a formal valuation and “should not be used other than as a general indication of the price likely to be achieved upon the open market.” In the circumstances, I have placed little weight on Mr Maguire’s letter. Mr Hayes’ statement: [13] The landowner introduced the statement prepared by Mr Hayes in relation to a compensation determination for a mining lease applied for by Mr Rasmussen and Mr Weir on the same property (ML 70211). I note from departmental maps that ML 70211 adjoins this mining lease. Mr Hayes assessed the overall value of the property at $200/ha. He made no assessment of the value of the particular area affected. As it is clear what area was being referred to by Mr Hayes, I consider his statement has more relevance to this mining lease than Mr Maguire’s assessment and, therefore, place more weight on it. I have taken into account, however, that Mr Hayes did not purport to be a valuer and his assessment was of the likely sale price for the entire property, rather than the value of a particular portion of it. Herron Todd White Rural Review: [14] The landowner relied on a 1 June 2001 Rural Supplement in The Rural Review, prepared by Herron Todd White. It referred to a number of recent sales in Central Queensland and stated that “values have almost doubled over the past year”. This is a general statement about movements in prices in the vicinity of Emerald. It is not an assessment of the value of Mt Clifford. Even were I to accept that land values have almost doubled, the landowner did not establish Mt Clifford’s value a year prior to publication of the newsletter. Accordingly I have placed little weight on this newsletter. Miner’s evidence: [15] The miner gave evidence about his proposed mining activities and the extent to which he considered they would impact on the landowner’s use of the area. He did not call evidence about the value of the property or the impact his activities would have on that value, although he did make submissions about the evidence adduced by the landowner. -- 6 of 14 -- Other evidence: [16] A difficulty in this case has been the lack of reliable evidence about the value of this property, and the area affected by this lease in particular. For reasons set out above, I placed little weight on evidence presented by the landowner and none was presented by the miner. [17] It came to my attention that a Certified Practising Valuer, R G Brown, provided expert evidence to the Tribunal in relation to the Richardson lease which is in the vicinity of, but not adjoining the subject area. Smith DP, who presided over that matter, accepted Mr Brown’s assessment of the value of the affected land after Mr Brown was subjected to extensive and lengthy cross-examination by this landowner’s representative. [18] Because of my concern about the lack of reliable evidence as to the value of this area, I raised with the parties the possibility of referring to Mr Brown’s evidence in relation to this matter. Both parties requested that I do so and subsequently, at my invitation, provided written submissions regarding the use I should make of that evidence.7 I have taken into account those submissions in considering what use to make of Mr Brown’s evidence. My conclusions about the value of the property and the basis for those conclusions are set out below. Discussion of Compensation The value of the land: [19] Assessments of the value of the property as a whole ranged from $150/ha (Mr Brown’s valuation) to $200/ha (Mr Hayes’ statement). The landowner also gave evidence of an offer recently received from another miner of $500,000, plus the retention of commercial timber rights, for the entire property. This equates to an offer of approximately $172/ha plus the value of the commercial timber rights. No evidence was led as to the value of the commercial timber rights, although in his submissions the landowner asserted they were worth $100,000, leading to a value of $217/ha. 7 s. 4(2)(b) LRT Act empowers the Tribunal to inform itself “or anything in the way it considers appropriate”. In a recent decision interpreting a similar provision of the Administrative Appeals Tribunal Act (s33(1)), Moore J of the Federal Court of Australia decided that the Administrative Appeals Tribunal was entitled to rely on findings of fact in other Tribunal cases if the parties had an opportunity to comment on the facts as they might impact on the particular matter before the Tribunal. Secretary of the Department of Veterans’ Affairs v Studdert [2001] FCA 1642 at [10]. -- 7 of 14 -- [20] As for the value of the particular portion affected by this application, the landowner asserted a value of $300/ha on the basis that it was “superior grazing land”. He relied upon Mr Dixon’s letter as evidence that the lease area is situated on the more productive creek flats. I have already indicated that I am not prepared to speculate that Mr Dixon was specifically referring to this area when making that comment.8 Nor did Mr Dixon purport to make any assessment of the value of this area or be qualified to do so. The landowner also relied upon Mr Maguire’s assessment that the value of the “superior creek flat grazing lands” was $300/ha. Again, Mr Maguire’s letter did not establish that this lease is within the superior creek flat grazing lands. For the reasons stated above9, I placed little weight on Mr Maguire’s letter. [21] The miner denied the application area is within the alluvial creek flats and described it as “billy boulder dominated slopes”. I inspected the subject area in October 2000 when I mediated the application for the grant of this tenure. During the hearing, both parties requested that I draw on my observations from that inspection. I am not qualified to draw conclusions as to the productivity or value of different portions of the property, but do draw upon my observation that the subject area is more sloping than the land immediately adjacent to the creek. [22] In his Environmental Management Overview Strategy (EMOS), the miner nominated that land capability class for most of the lease as class vii – land not suitable for cultivation, and only careful pastoral use possible. However, portions of the lease were nominated at a higher class and there is the following notation on the Schedule of Land Use “the land .…. is blacksoil and has previously been cropped and is recognised as being better quality land”. Surprisingly no reference was made to this by the landowner and the notation is inconsistent with the evidence he gave about the prior use of this part of the property. [23] Mr Brown valued the Richardson lease at $250/ha. The parties agreed the Richardson lease is situated in the alluvial creek flats. The landowner submitted that the land in the Richardson lease is similar quality to the subject land. However, he also submitted that, based on the Herron Todd White Rural Review, values in the area had doubled after the Brown valuation, so that $250/ha is now an 8 see para [10]. 9 see para [12]. -- 8 of 14 -- undervaluation. I have already indicated that I have placed very little weight on the Herron Todd publication.10 In any case, the landowner’s assertion of value of $300/ha is inconsistent with his assertion that values have doubled, which, if true, would mean the value is now $500/ha not $300/ha. [24] The miner contended that the Richardson lease is better quality land and that $250/ha is an overvaluation. This is supported by the EMOS for that lease, which nominated the class for the entire area as class vi – land not suitable for cultivation but well suited for pasture improvement. Given the small size of the area that will be disturbed, the paucity of evidence before me, the inconsistencies between the classes noted in the EMOS for the subject lease and the evidence given by the parties, I have adopted Mr Brown’s figure as a practical guide to the probable value of the subject land. The impact of the proposed activities on the value of the land [25] The landowner claimed $2,160, calculated on a loss of value of 80% of the subject land, valued at $300/ha. As indicated above, I do not accept that is the value of the land. In his valuation report regarding the Richardson lease, Mr Brown assessed compensation using a formula of 33 1/3% reduction in the value of the affected land. The percentage took into account the small area that would be actually disturbed at any one time (4 ha) and the environmental conditions that would be imposed on the lease. In the present case, the area disturbed at any one time is smaller (less than 1 ha) and the environmental conditions are in virtually identical terms. In the Richardson case, Smith DP accepted Mr Brown’s assessment as reasonable. The miner has submitted that the formula is also appropriate for the subject lease.11 [26] The landowner’s justification for an 80% reduction in value appears to be based on three considerations. Firstly, that it must be assumed that the whole area of the lease will be mined. Secondly, that post-rehabilitation, the land will have only a fraction of its former capability. Thirdly, that it is likely that the lease will be renewed. On these assumptions, he considered a potential buyer would put a nil value on the land. Nevertheless an 80% reduction has been claimed. 10 see para [14]. 11 I also note that this is a more generous discount value than that used by President Trickett of the Land Court in Zimmerebner v Hawkins & Anor (1999) 20 QLCR 71. -- 9 of 14 -- [27] As for the first consideration, Mr Brown’s formula is based on a reduction in value of the entire lease area, not just that disturbed at any one time. As to the second, the conditions that will be imposed on the miner will require him to restore the land to the nominated land capability class which, in this case, is the same as the pre mine classification.12 I am required to act on the assumption that these conditions will be complied with.13 As to the third consideration, a mining lease cannot be renewed unless compensation has been agreed or determined for the renewed term.14 [28] Both parties gave evidence about the impact of the proposed activities on the subject area. The landowner asserted that both his use of the paddock in which the lease is situated and access to the adjoining stockyards will be affected. Smith DP recommended that this lease be granted to the miner, subject to the following conditions:  that the area of significantly disturbed land be limited to 1 ha;  that a roadway access to the stockyards be maintained at all times; and  that the landowner have access to graze all areas of the lease not significantly disturbed or directly associated with such areas of disturbance. I must assess compensation on the assumption that the lease will be granted on the conditions recommended by the Tribunal.15 I consider the interference with the landowner’s use of the subject area is adequately compensated by using the formula adopted by Smith DP for the Richardson lease. [29] Evidence was also led as to the impact the activities will have on the land’s stocking capacity. It is clear from the landowner’s evidence that the paddock is used for grazing in only limited circumstances. It is used 5 to 6 times a year as a holding yard for branding or prior to cattle being transported to market. It is used every 3 years or so during drought conditions to graze young cattle doing poorly. Its only continuous use appears to be as a horse paddock. The landowner gave evidence of fenced yards in the vicinity of the lease that could be used for each of 12 s. 590(3) Environmental Protection Act 1994 and s. 276(1)(b) Mineral Resources Act 1989 prior to the amendment of that section by the Environmental Protection and Other Legislation Amendment Act 2000. 13 Smith v Cameron (1986-87) 11 QCLR 64 at 76. 14 ss 279(1) & 286(3) Mineral Resources Act 1989. 15 R v The Land Court & D M White ex parte Kennecott Explorations (Australia) Ltd & Ors (1988-1989) QLCR 17. -- 10 of 14 -- these purposes. In any case, I consider the reduction in stocking capacity asserted by the landowner is adequately compensated by the formula referred to above. [30] In the absence of evidence to persuade me I should adopt a different approach, I have assessed compensation for the impact on the value of and the use that may be made of the subject land using Mr Brown’s formula. Impact of grant of the mining lease [31] I consider it appropriate to include in the award some nominal amount for the impact of the grant of the mining lease on the value of the property as a whole. The miner asserted that the property is already significantly affected by mining activities on or adjacent to it. Whilst I accept that, I do consider the grant of a further title will increase the impact on the land value. The impact of the mining lease on the balance lands of the owner [32] The landowner has claimed $15,000 for the loss of value of the balance of the property and improvements. I have already indicated that a nominal amount should be awarded for the impact the mere grant of another title will have on the value of the property. Further compensation may, however, be warranted for the impact on the use that can be made of the adjoining land. I am mindful of the conditions recommended by Smith DP regarding access to the stockyards. Nevertheless, it may well be necessary for the landowner to devote other lands to the uses currently allocated to the subject land, even if only on a periodic basis. [33] The basis for the landowner’s calculation of $15,000 is not clear. Neither the landowner or his agent were able to explain their methodology to me. The landowner assessed the value of the balance of the property and improvements at $574,000 and noted that this took into account the reduced value of some of this land because of the grant of another mining lease. The claim of $15,000 equates to a 2.6% reduction in the value of the balance of the land and improvements. There is no evidence to support the conclusion that mining this land would have such a significant impact on the entire property. [34] The miner submitted that no allowance should be made for the impact on surrounding land, because that is already subject to a mining lease and a determination of compensation. To take this into account again would be double- -- 11 of 14 -- dipping. That submission has some relevance to the land subject to ML70211.16 However, there is other surrounding land that is not already subject to mining leases. Further, the compensation relates to the impact on the value of the property as a whole, rather than just on the adjoining lands. Given the small area involved and the periodic nature of the use of the subject paddock, I consider a nominal amount will adequately compensate the landowner. The costs of the landowner’s agent: [35] Mr Houen submitted that the landowner’s award of compensation should include $835, being the fee charged by his company, Landholder Services Pty Ltd. It is well established in Queensland that the owner of land can be compensated for costs associated with obtaining professional legal and valuation advice to prepare a claim for compensation.17 Such fees have been allowed as items of disturbance provided they have been incurred for the purpose of formulating and lodging a claim and were necessary and reasonable in the circumstances of the case.18 [36] Mr Scott rejected a similar claim by another landowner in relation to fees charged by Mr Houen in the case of Wills v Minerva Coal.19 Mr Houen sought to differentiate the present claim to that made in the Wills case. He submitted that Mr Scott found that Mr Houen stood in the shoes of the landowner in the Wills case, undertaking matters, such as the engagement of lawyers and valuers, that the owner could have undertaken himself. Mr Houen argued that, in the present case, he was the landowner’s sole advisor and representative at the hearing. [37] Mr Houen’s submission does not accurately reflect Mr Scott’s findings in the Wills case. Mr Scott did find that, to a large extent, Mr Houen had stood in the shoes of the owner. However, he also referred to the evidence of Mr Palmer, the landowner’s solicitor, and accepted that Mr Houen had provided Mr Palmer with assistance and, as a result, the legal fees were reduced. Nevertheless, he did not accept that the decision to employ a para professional arose as a consequence of the grant of the mining lease. 16 An application by K J Weir and G R Rasmussen which adjoins this lease. 17 In relation to the Act: Wills v Minerva Coal Pty Ltd unreported decision of Mr Scott, Land Court 9 February 1999 at p90; and in relation to the Acquisition of Land Act 1967: Merivale Motel v Brisbane Exposition and South Bank Redevelopment Authority (1985) 10 QCLR 268 (Land Appeal Court). 18 Szirtes v Pine Rivers Shire Council (1969) 36 C.L.L.R 103 at 105. 19 op cit. -- 12 of 14 -- [38] Applying the approach adopted in these matters previously, the first issue is whether Mr Houen’s fees were incurred for the purpose of formulating the claim for compensation. The date of commencement of proceedings is a milestone that assists the Tribunal to distinguish between costs that are disturbance items, and therefore can be included in the claim for compensation, and costs of the proceeding, which must be dealt with under the rules of the court. [39] Whilst Mr Houen’s invoice does not refer to representation costs, he submitted that the fact that he represented the landowner at the hearing supported his argument that his costs should be included in the award. Given the distinction drawn above, I cannot see how representation at the hearing is relevant to the claim made. Further, I have previously decided that a lay agent’s costs of representing a party before this Tribunal cannot be recovered.20 It follows that the landowner’s costs of Mr Houen representing him at the hearing are not recoverable, either as a disturbance item or as the costs of the proceedings. [40] It is unfortunate that Mr Houen’s invoice does not make it explicit what work was done for the landowner and on what date, so it is not possible to ascertain whether they were incurred for the purpose of formulating not prosecuting the claim. I note the assertion in the invoice that they were incurred for that purpose. However, I am not willing to rely on that assertion given Mr Houen’s submissions about representing the landowner and the lack of particularity about the work undertaken. [41] Even assuming all costs were incurred for the required purpose, the landowner did not tender sufficient information to enable me to decide whether it was reasonable or necessary for him to engage Mr Houen, rather than a professional lawyer or valuer. In his curriculum vitae, Mr Houen listed his involvement in mining projects on behalf of landowners over a 12 year period. I am also aware of the extent to which Mr Houen has represented and continues to represent landowners before this Tribunal. Nevertheless, I have no evidence of what Mr Houen’s academic qualifications are nor has it been explained to me how his knowledge or expertise contributed to the formulation of the claim. In fact the lack of valuation material 20 see s. 50 of the Land and Resources Tribunal Act 1999, Supreme Court Act s. 209(2) and my decision in Northern Safecorp Consultants Pty Ltd and G Bellino v DP & JM Parsons [2001]QLRT 20 at para [9]. -- 13 of 14 -- presented a difficulty in this case.21 For the reasons set out above, I have not included in the award any amount for Mr Houen’s costs. Access: [42] It appears that access to the proposed area is on gazetted roads only and there is no requirement to determine compensation for access. Severance: [43] As Smith DP has recommended that roadway access to the stockyards be maintained at all times, the award for compensation includes no amount for severance. Determination of compensation [44] Taking into account the matters set out above, I determine compensation under s. 281(3) in the sum of $2,050. In accordance with s. 281(4)(e), I award an additional amount of $205, which is 10% of the compensation determined above, to reflect the compulsory nature of the grant of the mining claim. The total compensation payable is $2,255. I direct the miner to pay that sum to the landowner within 1 month of the grant of the mining lease. 21 see the discussion at paras [16] to [18]. -- 14 of 14 --