Elliot v Hicks [2001] QLRT 38

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: In Re Maurice James Elliot and Russell Brendon Hicks and Cameron Jeffrey Hicks [2001] QLRT 38 PARTIES: Maurice James Elliot Applicant - and - Russell Brendon Hicks and Cameron Jeffrey Hicks Respondents FILE NO/S: LXX40066/2000 PROCEEDING: Application in a proceeding DELIVERED ON: 18 June 2001 DELIVERED AT: Brisbane HEARING DATE: 5 April 2001 (Emerald) PRESIDING MEMBER: Smith DP ORDER/S: 1. Question 1: Does the reservation in leases or deeds of grant of “the rights of access for the purpose of searching for and working any minerals in any part of the land” have a bearing on the landowners’ right to compensation under the Mineral Resources Act 1989? Answer: No. (at [110]) 2. Question 2: Can claims for compensation be made out on land contained within Restricted Area 1 for losses involving diminution of value and blot on title? Answer: Each case must be considered according to the terms and conditions of the mining lease to be granted and the frequency and magnitude of the disturbance likely to result in consequence to the claimant’s proprietary rights. (at [124]) CATCHWORDS: RIGHTS OF ACCESS – COMPENSATION – RESTRICTED AREA 1 – DIMINUTION OF -- 1 of 65 -- VALUE – BLOT ON TITLE – GRAZING HOMESTEAD FREEHOLD LEASE – CENTRAL QUEENSLAND GEMFIELDS – ANAKIE MINING FIELD – HISTORY – SPECIFIED RESERVATIONS – TENURE – RIGHT OF ACCESS Land and Resources Tribunal Act 1999, ss. 83 Mineral Resources Act 1989, ss. 8(4), 269, 281 Mining on Private Land Act 1909, s. 6(2) Wik People v State of Queensland & Ors (1996) 63 FCR 450 considered Hutchinson v Scott (1906) 3 CLR 359 considered Michael Borys v Canadian Pacific Railing Co (1876) 1 App. Cas. 204 considered Ramsay v Blair 1953 AC 217 considered Case of Mines Plowd., 310 considered Zimmerebner v Hawkins and Ors Trickett P, Land Court, Brisbane, 30 March 1999 applied Joyce v The Northern Electric Authority of Queensland (1974) 1 QLCR 171 applied COUNSEL: N/A SOLICITORS: Mr Elliot represented himself Mr Houen (Agent) for Mr and Mrs Hicks SMITH DP: The Proceedings [1] This is an Application in a Proceeding brought by the Applicant, Maurice James Elliot (hereafter “the Applicant”). The Respondents are Cameron Hicks and Russell Hicks (hereafter “the Respondents”). [2] The Applicant is an applicant for Mining Lease 70146. The Mining Warden recommended that the mining lease be granted on 24 October 1996. [3] The issue before the Tribunal relates to compensation, as the Applicant and the Respondents (the landholders) have failed to reach agreement. The matter came to the Tribunal pursuant to s. 83 of the Land and Resources Act 1999 as a proceeding which had commenced in the Warden’s Court and had not been finished as at 18 September 2000, the date this Tribunal received jurisdiction. -- 2 of 65 -- In fact, the material discloses that the issue of compensation had been before the Warden’s Court since 24 February 1997 without resolution. For the record, I should also note that in that time, the ownership of the subject land has changed from C.J. Hawkins, J.J. Hawkins and G. Warter to the Respondents. [4] The Applicant filed the subject Application in a Proceeding on 2 April 2001. The Application in a Proceeding seeks the answer by the Tribunal to two questions, namely: “1. Does the reservation in leases or deeds of grants of “the rights of access for the purpose of searching for and working any minerals in any part of the land” have a bearing on the landowners’ right to compensation under the Mineral Resources Act 1989? 2. Can claims for compensation be made out on land contained within Restricted Area 1 for losses involving diminution of value and blot on title?” [5] The Application in a Proceeding was heard in Emerald on 5 April 2001. The Applicant represented himself. The Respondents were represented by their Agent, Mr Houen. Background [6] The Applicant’s mining lease application is over an area of 87.17 hectares situated on part of Grazing Homestead Freehold Lease 3735A (part of Exhibit 1). The property bears the name Keilambete. [7] The Applicant was sworn and gave evidence at the hearing of the application. Although his evidence was relatively short, he tendered a large amount of material, much of it historical in nature, regarding the establishment of the Central Queensland Gemfields and the various designations applying to those gemfields, particularly “Anakie Mining Field” and “Restricted Area 1”. [8] In order to answer the questions in the application, it is necessary to understand the historical development of the gemfields. Although the following history is rather lengthy, in my view it is appropriate in this case to take the time to comprehensively analyse the material so that the conclusions that follow are based on a firm historical backing. -- 3 of 65 -- History of the Central Queensland Gemfields [9] The Anakie sapphire fields are situated on the tropic of Capricorn, 350 kilometres west of Rockhampton and 400 kilometres east of Longreach. The Gemfields cover over 10 000 hectares in five different locations. Figure 1 shows the location of the Anakie sapphire fields, namely Rubyvale, Sapphire, The Willows, Tomahawk Creek, and the Glenalva field. FIGURE 1 Map of Central Queensland taken from Exhibit 1. -- 4 of 65 -- [10] Little of the early history of the gemfields has been accurately recorded. A few books exist on the subject but much of the early history of the gemfields is vague, and remains open to speculation. Indeed the original discovery of sapphires near Retreat Creek in the Anakie District of Central Western Queensland and the exact date of that discovery may never be known. The date is generally agreed to have been in the early 1870’s and the discovery to have been made by Archibald John Richardson. [11] Archibald John (A.J.)Richardson was born in 1827 at Leith in Scotland and adopted by his older cousin Sir John Richardson. Sir John Richardson was an Artic explorer, who held the position of surgeon and naturalist on the Artic expeditions of Sir John Franklin. Walda L. Scholler in her book, “Images of the Anakie Sapphire Fields – Queensland”, asserts that the young A.J. Richardson was influenced through this family tie and developed a desire to explore as well as an admiration for explorers such as Bass, Flinders, Franklin, Willingham and Sir Joseph Banks1. [12] This motivation brought Richardson to Australia and Queensland in 1862. Richardson became the Queensland Government Surveyor of Rockhampton and Districts. He was later appointed as the Land Commissioner and District Surveyor for the Port Curtis and Leichhardt districts. It was during his time as the Land Commissioner and District Surveyor that he discovered the Anakie Sapphire Fields, finding sapphires at Retreat Creek. Walda L. Scholler describes how Richardson’s daughter, Mary Lucy, a prolific writer, noted that the year of her father’s discovery was 18732. This conflicted with a report of the Assistant Queensland Government Geologist, Benjamin Dunstan who noted the date as 1875 in his report, “The Sapphire Fields of Anakie (1902)”3. Mr Anderson, the then Senior Inspector of Mines Brisbane, writing in the Queensland Government Mining Journal in 1971 about the last century of sapphire mining 1 Walda L. Scholler., Images of the Anakie Sapphire Fields- Queensland (E. and W. Scholler: Yeppoon, 1993) p1. Exhibit Number 7. 2 Walda L. Scholler., Images of the Anakie Sapphire Fields- Queensland (E. and W. Scholler: Yeppoon, 1993) p1. Exhibit Number 7. 3 Benjamin Dunstan., ‘The Sapphire Fields of Anakie’, (1902) Queensland Government Mining Journal Vol 3; No 25 p297. -- 5 of 65 -- began an article, “In 1870 the first sapphire was found at Withersfield in Central Queensland”4. [13] A.J. Richardson, soon after his find, whenever that may have been, took out reward claims at Retreat Creek over the deposits he had found. In 1881 these deposits were opened up by A.J. Richardsons’s manager, Mr. Blair, and from these deposits came the first commercial production of gemstones from the Anakie Sapphire Fields. In 1890 a Mr. Francis (Frank) Fisher became the partner of Mr. Richardson in the sapphire-mining operations and they erected a plant for treating wash from the deposits. [14] Gradually more miners were attracted to the area. In 1891 a Mr. Ballard took up an area next to that of Richardson and Fisher’s and this ultimately became the property of the Withersfield Sapphire Company. In 1892 a Mr Duke and a Mr. Newsome each took up areas of sapphire bearing ground. Other pioneers of the fields included Mr. Evans, Mr. Stuart, Mr. Blair, Mr. Spiers, Mr. Logan and Mr. Lidstone. [15] Most early miners came to the sapphire fields with very little; Walda L. Scholler asserts that most brought only their swag and their hope5. Miners constructed their residences of all manner of material including galvanised iron, ‘billy’ boulders, flattened petrol cans and tarpaulins. Most miners worked close to their shelter and when they worked out their ground they moved on, taking their ‘house’ with them. [16] With the arrival of new settlers and a permanent population beginning to establish itself, the area began to take on a more settled appearance. A railway station was constructed in 1884, a provisional school was opened in 1885, and Anakie was proclaimed a township in 1887. Post Office facilities began operating in 1894. 4 O Anderson., ‘A Century of Sapphire Mining’, (1971) Queensland Government Mining Journal Vol 72; No 832 p41. 5 Walda L. Scholler., Anakie The Sapphire Fields of Central Queensland- Australia (E. and W. Scholler: Anakie, 1986) p10. Exhibit Number 2. -- 6 of 65 -- [17] Between 1892 and 1893 sapphire production was estimated to be $18,000.006,7. There was a general feeling that the Anakie Sapphire Fields were highly promising and that great things were to come from the fields. Robert Logan Jack, a Queensland Government Geologist of the time, made the following remarks when visiting sites at Retreat Creek, “While I was on the spot two small loads of washdirt . . .about a ton and a half . . . were carted to the. . . .sorting trough . . . speedily washed . . . wheeled to the sorting table. The result was 258 sapphires of from three to 179 carats each and weighing in all 3289 carats, and 25 zircons of from 3 to 64 carats and weighing in all 257 carats. The finer material beneath the trough yielded many thousands of smaller sapphires, zircons, pleonaste, white topazes, magnetite, haematite and scales of gold . . . .among the larger stones perhaps one in a hundred may be fit for some use . . . while perhaps one in two thousand may be a sapphire . . . of the finest water. A few cut stones in the possession of Mr. Richardson appear to be equal in value to some of the finest gems in the great minerological cabinets of Europe . . .”8 [18] The Mining Warden of the Clermont District, Commissioner Edmund Morey, in his 1892 Annual Report commented on the production at Retreat Creek: “The ground – three reward claims – held by Messrs. Richardson and Fisher is, so far, the most promising, and they are steadily testing it, and with the most encouraging results; for sapphires of every shade of blue, green . . .yellow . . .and some red . . .are found . . .this company has unearthed a considerable quantity of gems, and a large number have been cut and polished . . .it is reported that a true Ruby – the first ever found in Australia – weighing 15 carats, was unearthed on this company’s holdings . . . . In addition to Richardson and Fisher’s claims, there are at present ten other holdings being prospected or worked – some with encouraging results, some not so promising. Quite a number of areas registered here have been thrown up; but every week fresh applications come in, and much and increasing attention is being given to this gem- bearing tract of country.” 9 [19] The Commissioner noted that the population of the area was 31 and that the prospects for the area were ‘very promising’10. [20] Despite these promising prospects the sapphire industry got off to a slow start. The major problem was finding a market for the gems. In the 1893 Annual Report, Edmund Morey, the Mining Warden of the Clermont District, gave this report on the gemfields: 6 Actual production figures remain open to speculation; miners guarded information as to the quantity of stones they possessed and sold. Statistics on production are inherently unreliable and largely non existent. This comment is applicable for all periods. 7 Throughout this part of the judgment amounts in pounds have been converted into dollars. Dollars became the currency on 14 February 1966. 8 Robert L. Jack., ‘Sapphire, gold and silver mines near Withersfield’, (1892) Queensland Government Survey No 81 p2. -- 7 of 65 -- “I regret that I cannot send a favourable report on the sapphire workings . . . .A very large quantity of gems, amounting to several hundreds of thousands of carats . . .have been raised together, but no market can be found for them. Population . . .workers at the sapphire claims- 18 . . .Prospects . . . very doubtful”.11 [21] At this time there was already established an international gem market and it was feared that if the Australian gems were introduced the market would be flooded. Thus there was a fierce determination to keep Australian sapphires from entering the international sapphire market. [22] Walda L Scholler recounts the story of Mary Lucy Richardson (the daughter of A.J. Richardson) and Francis (Frank) Fisher (A.J. Richardson’s partner) who married in 1893. The Fischer’s experienced first hand this tight gem ‘ring’. Mary Lucy and Frank left Australia for England in 1897 taking with them a selection of impeccable sapphires with the hope of setting up a company in London. When they arrived Frank Fisher visited a diamond merchant in Hatton Garden taking with him two sapphires. The diamond merchant offered 106 pounds for the two gems. The Fishers were delighted. Frank Fisher returned the following day with a great number of gems but, as Mary Lucy described it: “The very quantity of the treasure frightened the merchant. All he [Frank Fisher] could do after this was useless. The ring which controls the supply of gems, determinedly kept the Queensland jewels out, and a few shillings were offered for what had, but a day or two before, been considered a bargain.”12 [23] Finding markets for the gems was to be a problem that plagued the gem miners. As well as this intermittent drought and flood conditions restricted mining for sapphires. Further, this was a period in which the fever was for gold rather than gems, and for a period this lessened the number of miners who were attracted to the field. [24] The gem mining industry at Anakie really established itself at the turn of the century. By 1903 sapphire mining was considered to be an established industry centred on the Retreat and Policeman Creek Areas. Operations were started by 9 Annual Reports of the Mining Warden Clermont, publishing in the votes and proceedings, cited in D.B. Monteagle, The Sapphire Fields Story (Central University Press: Rockhampton, 1995) p33. Exhibit Number 3. 10 Ibid. Exhibit Number 3. 11 Annual Reports of the Mining Warden Clermont, published in the votes and proceedings, cited in D.B. Monteagle, The Sapphire Fields Story (Central University Press: Rockhampton, 1995) pp33-34. Exhibit Number 3. 12 Walda L. Scholler., Images of the Anakie Sapphire Fields- Queensland ( E. and W. Scholler: Yeppoon, 1993) p4. Exhibit Number 7. -- 8 of 65 -- the Oriental Sapphire Company and in 1900 mining operations were commenced by the Withersfield Sapphire Syndicate. On 6 September 1902 the Anakie Mineral Field was proclaimed in the Queensland Government Gazette: “ANAKIE MINERAL FIELD Country of Plantgenet District of Port Curtis Area 18,385 acres Commencing at the north-west corner of portion 40v, and bounded thence on the west corner of portion 40v, and bounded thence on the west by a line bearing east 210 chains; on the east by a line bearing south 120 chains; again on the north by a line bearing east 230 chains to May Creek; on the south east by the creek upwards to a point east from the starting point; and on the south by a line bearing west to the point of commencement. Given under my Hand and Seal, at Government House Brisbane, this third day of September, in the year of our Lord one thousand nine hundred and two, and in the second year of His Majesty’s reign. By Command, D.H. Dalrymple.”13 [25] Gradually overseas interest was aroused and markets established. Around the turn of the century Australian gemstones became popular with the Russian nobility and this increased demand. An exhibition of gems in London at Earl’s Court in 1899 led to an upturn in the sapphire market and the fields enjoyed a short period of prosperity. The firm that hosted the exhibition, Messrs Flavelle, Roberts and Sankey Ltd, then one of Queensland’s largest gem firms, were keen to demonstrate to the European market the extent to which the Queensland gem industry had developed14. Walda L. Scholler described the exhibition as lasting six months and being a great success attracting many patrons. The great English gem merchants remained fearful though of their markets being flooded and although many gems were purchased, many were sent back to Australia unsold15. [26] A further impediment to the establishment of markets was the strict secrecy of the gem miners. Bejamin Dunstan, Assistant Queensland Government Geologist, noted some of the problems: “There has always been a tendency with those engaged in the mining of sapphires at Anakie to say as little as possible about the industry, as they were afraid public attention would be drawn to it. This attention they have been very careful to avoid, as, so they say, miners would be attracted to the field and more gemstones would be obtained than a market could be found for, and a consequent depreciation in their value would result. Without expressing an opinion as to the wisdom of this policy; it might be stated that 13 Queensland Government Gazette 1903 No. 60; Vol 69 p536. 14 Walda L. Scholler., Images of the Anakie Sapphire Fields- Queensland (E. and W. Scholler: Yeppoon, 1993) p4. Exhibit Number 7. 15 Ibid p4. -- 9 of 65 -- publicity would also have the effect of attracting the attention of buyers and dealers to the occurrence of the sapphires, and this might more than counterbalance the effect of greater production . . . . The hesitation which some dealers feel in buying Anakie stones is not altogether due to their colour, however, as in buying consignments of stones from the Anakie miners the dealers are not made acquainted with the conditions which prevail on the sapphire fields, and they have no idea of the extent of the deposits from which the stones are obtained. In consequence of this lack of knowledge they do not know if a fair supply could be maintained, nor whether higher prices will have to be paid, should they, by any means in their power, create a greater demand for the sapphires. Let it be known that the field is a large one, that the extent of sapphire wash is second to none in the world, and that a constant supply of stones could be maintained . . .then there will be no cause for complaining that markets cannot be found for the stones. The greater demand for the sapphires will be met by a greater production, and with a greater production the dealers will not be contented to wait for consignments to be forwarded to them, but will themselves visit the field periodically, and buy direct from the miners, a condition of things satisfactory to all concerned. An illustration may be given of the effects of reserving from the dealers and the public any information about the fields, and the hesitancy on the part of the dealers to state that any good stones they might want to dispose of came from an unknown locality such as Anakie, or on the part of the public in buying stones if they be told they came form such a place. The following extract was taken from a letter received by the writer from a representative of a Geneva firm of lapidaries and dealers. It states that “Fine sapphires, equal to those from Burma, have been found amongst the Australian gemstones. Most of these are sent to Germany by dealers where they are sorted. The best gems are afterwards sold separately under another name, and the inferior lots sold as Australian”.16 [27] These practices gave Australian sapphires a poor reputation, and for years gem production was impeded by this opinion of their quality Thus from the beginning there was prejudice against the sapphires mined on the Anakie sapphire fields. [28] Even when markets were located the sapphire miners were vulnerable to exploitation by gem merchants. The miners themselves were generally not knowledgeable as to what were satisfactory prices and many did not differentiate between the different quality of gems. Benjamin Dunstan, Acting Government Geologist in 1902, made the following remarks: “In visiting the field to see how work was progressing, it was found that a great number of miners were anxious to obtain information about the quality of the rough stones in their possession. Many of them have no previous experience of gem mining, and instructing them in what are marketable stones took up a considerable part of the time . . . .regarding the value of the stones, the miners put an exorbitant price on some of them at times, particularly if of abnormal size, quite independent of their quality of defects, while as frequently they under-estimate the value of small clear stones of such a good shape that very little waste would result in cutting them into gems. Such a condition of things 16 Benjamin Dunstan., ‘The Sapphire Fields of Anakie’, (1902) Queensland Government Mining Journal Vol 3; No 24 p239. -- 10 of 65 -- shows that the miners do not understand the intricacies of gem valuing, and are, as a rule, not competent to judge the qualities of a stone in the rough state.”17 [29] Walda L. Scholler was of the same sentiment, commenting: “The backbone of the industry was a miner who, at times, failed to understand the gem he mined. . . . There were frequent misunderstandings between miner and dealer with regard to the weight of the stones brought forward for sale. Being neither gemmologist nor mathemetician, the miner only understood remuneration for work and equated the price received with sustenance required.”18 [30] At this stage, gems were being purchased by resident and visiting buyers, mainly on behalf of German interests. The Warden Mr D.M. Jones on a visit to the fields in 1904 made some comments: “The general tone of the miners I met was satisfactory as regards present and future prospects. Several are of the opinion that when deeper ground is reached a superior class of gems will be obtainable. At present there is said to be miles of sapphire-bearing country . . .from what I can gather the unsatisfactory part is in the disposing of the gems when got. Hitherto the majority of the professional gem-buyers who pay periodical visits to the field are compelled to shorten their visits on account of the want of hotel accommodation on the field . . .and when the miner has to visit Anakie to negotiate a sale much loss of time is the result.19 [31] Some miners located overseas markets themselves and sent parcels of sapphires directly to international buyers Selling directly to overseas buyers allowed miners to bypass the local buyers who had initiated a buying ‘ring’. The Acting Mining Registrar at Emerald, after a visit to the field in 1904, reported: “There are at present five buyers in the locality, four of whom reside at Cameron’s public house, at Anakie. It is now asserted they have formed a ‘ring’ and considerably reduced the price of sapphires sold on the field. A number of miners, however, who have accumulated a little money do not deal with the local buyers, but send their sapphires either to southern markets in Melbourne or Adelaide, or to firms in Europe . . . .The bulk of the miners, being evidently desirous of limiting the output and keeping up the prices, as far as possible, seem more or less reluctant to give any definite information, and it is very difficult to arrive at even an approximate estimate of the value of the stones turned out for any period.”20 [32] In response to the buyers developing a ‘ring’, miners banded together and discussed developing a sapphire miners co-operative. As a result the Sapphire Miner’s Co-operative Society was established as a bulwark against the buyer’s ‘ring’. 17 ‘The Anakie Sapphire Fields’, (1903) Queensland Government Mining Journal Vol 4; No 37 p282. 18 Walda L. Scholler, Images of the Anakie Sapphire Fields – Queensland (E. and W. Scholler: Yeppoon, 1993) p14. Exhibit Number 7. 19 ‘The Anakie Sapphire Fields. Official Reports on the Field’, (1904) Queensland Government Mining Journal Vol 5; No 50 p347. -- 11 of 65 -- [33] The early years were tough times for the pioneers of the sapphire gemfields. The Acting Mining Registrar at Emerald reported in 1903 on the progress of the sapphire field at Anakie, and noted that miners in general seemed to have secured little more than a bare subsistence21. Many miners toiled arduously on the gemfield with little result. [34] Conditions on the gemfields began to improve though when the deeper ground began to be worked. From the time the gemfields were discovered miners had concentrated their efforts into working the shallow ground, generally a level up to a metre was being worked. The general impression amongst the miners was that sapphire mining in deep ground would not pay on account of the extra work entailed in working it22. In 1902 a group of Black Ridge gold miners arrived. The Black Ridge miners, well trained in deep sinking from their gold mining, went below what was considered “bottom” by the sapphire miners to discover a second deposit of wash which contained more and far better gems than those found on the surface ground23. This find inspired a new rush in mid 1904 and the population grew to 1000 miners24. By this time Sapphire township had two hotels, some stores and a number of houses25. [35] The problem of locating markets still plagued the Anakie sapphire miners though. Writing in 1905 Lionel C. Bell, then Assistant Government Geologist, noted: “The majority of the miners on the field at the time of my visit were very much discouraged by the state of the market. It was asserted that the buyers, both on the field and in the capitals, were very unwilling to purchase, and some of the men were beginning to fear that, if they could not soon dispose of their output, they would have to leave the field. Statement had been made to the effect that the miners were experiencing general prosperity, but they themselves generally denied that any number of them earned more than a pound a week.”26 20 The Anakie Sapphire Fields. Official Reports on the Field’, (1904) Queensland Government Mining Journal Vol 5; No 50 p348. 21 ‘Clermont District and Anakie Field’, (1903) Queensland Government Mining Journal Vol 4; No 40 p488. 22 ‘The Anakie Sapphire Fields’, (1903) Queensland Government Mining Journal Vol 4; No 50 p313. 23 Walda L. Scholler., Images of the Anakie Sapphire Fields- Queensland (E. and W. Scholler: Yeppoon, 1993) p14. Exhibit Number 7. 24 Ibid. Exhibit Number 7. 25 Ibid p17. Exhibit Number 7. 26 Lionel C. Ball., ‘Sapphire Fields of Central Queensland. Notes on their present condition’, (1905) Queensland Government Mining Journal Vol 6; No 58 p116. -- 12 of 65 -- [36] The situation improved though in 1906 and 1907. Some high quality yellow and green stones were found in 1906 and market conditions became more satisfactory with prices ranging up to $12.00 per ounce for large blue sapphires27. In 1907 there was a record production of $81,000.00 with a marked increase in the number of men employed in, and consequently in the output from, sapphire mining on the Anakie fields. In September 1907 there were 850 miners working in various parts of the field. On a visit to the gemfields the Warden, D.M. Jones, speculated that the population on the field had increased four-fold compared with his previous visit and commented: “On the whole, the prospects of this district are very much brighter than they been in the past, and I expect to see the town of Sapphire the emporium of a large gem-bearing district.”28 [37] At this time, miners were selling to resident buyers who would then send gems to dealers and merchants in Europe. In 1907 there were six German, one French, and three Australian gem dealing firms represented by their agents on the field29. [38] This was still a difficult period for gem miners- secure markets had not been established and there were severe fluctuations in demand and prices. A general depression began in 1908. [39] The Sapphire Miner’s Co-operative Society assisted miners as best they could in locating markets for the gems, but were generally unsuccessful30. The Sapphire Town correspondent of the “Capricornian” Paper noted that there was a great falling off in the output of the field and considerable hardship was being experienced by a number of men who were on poor ground, eking out only a bare existence and unable to risk prospecting new ground owing to the continued depression31. As well as this there were intermittent droughts and floods which circumscribed what could be achieved. 27 ‘50 Years of Gem Mining in Queensland’, (1950) Queensland Government Mining Journal Vol 51; No 584 p473. 28 ‘Sapphire Fields of Anakie. Report by the Warden’, (1907) Queensland Government Mining Journal Vol 8; No 85 p314-5. 29 ‘Anakie Sapphire Fields, Central Queensland’, (1907) Queensland Government Mining Journal Vol 8; No 91 p624. 30 ‘Queensland Sapphires’, (1909) Queensland Government Mining Journal Vol 10; No 109 p270. 31 ‘Anakie Sapphire Fields’, (1909) Queensland Government Mining Journal Vol 10; No 110 p325. -- 13 of 65 -- [40] More miners were still attracted to the fields and the area continued to develop. Rubyvale became a township in 1908 and a school opened in Rubyvale the same year. [41] In 1910 things began to look more promising with all classes of sapphires attracting markets. In 1912 there was a great increase in the number of gems purchased and subsequently the value of sapphires increased. For 1912 production was estimated to have reached $80,000.00. Interest was being generated in the field; in 1912 the Governor Sir William MacGregor visited the Anakie Sapphire Field and Anakie gemstones were displayed at the Brisbane Exhibition. [42] Miners were small claim holders, there were no large gem mining companies on the fields. Lionel C. Ball, Assistant Government Geologist noted: “There is room for far reaching economy in the breaking down and rough concentration of the wash, but no inducements are offered men of large ideas and resources, it being tacitly understood that the field is reserved for the small claim holder.”32 [43] At the end of 1913, the future of the gemfields looked bright; there was a good sized population serviced by a variety of shops, public services, schools, medical facilities and hotels. Entertainment came in the form of dances, race meetings and sporting events33. [44] Until World War One it could be said that the fields were generally prosperous. The Great War halted the development of the Anakie Sapphire Fields. In 1914 with the outbreak of the war the German market collapsed, and as Germany had been taking a high percentage of the output, there was little demand. The outbreak of the war also caused the loss of smaller markets in continental Europe. The Mines Department endeavoured to find a fresh outlet for sapphires but were unsuccessful. As well as a lack of demand, the war drained the fields of men; production decreased and there was little activity on the gemfields during the entire war period. 32 ‘Geological Survey Reports. Notes on the Anakie Sapphire Fields in 1913’, (1913) Queensland Government Mining Journal Vol 14; No 156 p235. 33 D. B Monteagle., The Sapphire Fields Story (Central University Press: Rockhampton, 1995) p20. Exhibit Number 3. -- 14 of 65 -- [45] The slump during the war years was alleviated by an unprecedented boom in 1919. Prices reached new records, large blue sapphires sold at $40.00 per ounce. The gem fields population rose to approximately 2000. In 1920 there was a record production of gems with a production figure of $112,000.00. Although the Russian Revolution destroyed one of the best markets for Australian sapphires, French and English markets took over and the German market returned. A report in the Queensland Government Mining Journal asserted that: “The recovery of sapphires was becoming one of the best paying branches of mining in the state. A considerable number of men were operating in the district, and many had been extremely fortunate. As an instance, two young fellows without any previous experience of digging had been making as much as 40 pounds per week, while there were several who made a weekly profit of 20 pounds. Buyers are continually on the field, and are anxious to purchase everything that is offering for spot cash.”34 [46] Prices for sapphires slumped towards the end of 1920 though and in 1921 the Queensland Government began to make arrangements with the miners for better marketing of the gems and stabilising the sapphire industry. In 1921 the Queensland Government introduced a scheme whereby miners could deposit their stones voluntarily with the Queensland Government and the Queensland Government would find markets for the gems. The miners would receive an advance for the gems from the Queensland Government. Some 287 miners participated in the scheme and deposited 1468 ounces of first grade blue sapphires. The miners were able to have gems released if they found other buyers. However, this rarely occurred and only 47 ounces were redeemed35. The miners were generally pleased with this scheme; the scheme enabled miners to hold onto gems until better prices could be realised and as a result buyers on the gem fields had to offer more to obtain gems from the miners who were no longer quite so desperate36. [47] In 1922 the Queensland Government attempted to stabilise the marketing of sapphires and stimulate overseas interest by encouraging a buying pool to handle the grading and marketing of the gems. The Queensland Government, with the approval of the miners, entered into an agreement with a London gem 34 ‘Sapphire Mining at Anakie’, (1920) Queensland Government Mining Journal Vol 21; No 237 p40. 35 D.B. Monteagle., The Sapphire Fields Story (Central University Press: Rockhampton, 1995) p28. Exhibit Number 3. -- 15 of 65 -- company Rubin Bros. and for some months the prices received were satisfactory and the scheme looked as if it would be a success. However, Rubin Bros. decided to reduce prices and this led to dissatisfaction on the field and eventually the cancellation of the arrangement37. Feeling despondent at Queensland Government attempts, the miners registered their own association, the Rubyvale and Sapphire Gem Miner’s Association in 1923 which was to act as a vehicle for the disposal of sapphires. [48] In 1923 another scheme was introduced whereby the Queensland Government, by a Compulsory Purchase Proclamation under the Sugar Acquisition Act (Qld) 1915 acquired all blue sapphires, then sold them on behalf of the miner. A grader was appointed and the Queensland Government purchased the stone from miners at the determined price for the grade, less 5 percent to cover the grader’s wages and other expenses. This scheme initially seemed successful. A report in the Queensland Government Mining Journal detailed the Minister of Mines response to the functioning of the scheme: “[B]asing his opinion on the contents of a recent cablegram, the Minister of Mines (Hon A.J. Jones) thinks that the outlook for the future of the Queensland gem industry is very favourable. . . .the sales of gems were constantly increasing, and, as a result, fresh channels for the disposing of Queensland gems were being created. On the present results, it was considered that there was no cause for despondence in regard to the Queensland sapphire industry.”38 [49] However, the scheme soon came to grief. The Queensland Government was concerned that some of the miners held back superior stones and sold them illicitly, circumventing the purpose of the scheme as the illegally sold superior stones pushed down the price and demand for the inferior gems held by the Queensland Government. The Queensland Government was also dissatisfied with the scheme for the reason that the Queensland Government had to initially pay out large sums of money to the miners and did not receive money back from marketing the sapphires for a long period. [50] After many complaints a Royal Commission was appointed in 1928 to investigate the industry. The Commission recommended that if the Queensland 36 ‘Queensland Sapphires’, (1922) Queensland Government Mining Journal Vol 23; No 70 p422. 37 ‘Queensland Gem Pool’, (1928) Queensland Government Mining Journal Vol 29; No 336 p215. 38 ‘Increasing Sales of Queensland Gems’, (1926) Queensland Government Mining Journal Vol 27; No 311 p125. -- 16 of 65 -- Government’s Compulsory Purchasing Power was withdrawn it would probably be found that in 12 months the scheme would not be necessary, as without the scheme in place many miners would be forced to leave the gem fields. The purchasing pool was rescinded on 1 June 1928. Coupled with the onset on the Depression, there was a mass exodus of miners and the population dwindled. From this time on, miners largely depended on the visits of buyers to the fields to sell their gems. [51] The Depression years were extremely difficult for the sapphire miners on the gemfields. During the Depression little stone was mined and there were very few miners working the fields. There were few new discoveries or fields opened. The Queensland Government assisted by providing miners with Prospecting Assistance. This assistance was considered to be a subsidiary on gem production. The miners, represented by the Rubyvale and Sapphire Miner’s Association made gallant efforts to find payable markets but there were few markets receptive to any gems mined39. The Clermont Warden J.W. Lee, after a visit to the fields in 1936, commented: “The gem miners are doing poorly . . . .Prices are not good, and if a prospector has the luck to get a fancy stone he cannot get a decent price for it.”40 [52] There were signs of recovery in 1937. The Sapphire Miners’ Association was assisting miners, and miners were selling gems to two companies in Switzerland, two in France, one in Ceylon and two in America. This interest ended with the Second World War though41. 1939 was one of the lowest ever production years; sales of only $652.00 were recorded. There were no markets, the Depression was just receding, and there was the spectre of the Second World War looming. [53] The Second World War further removed men from the fields and production virtually ceased. Demand for sapphire grew rapidly in the early 1940s with the influx of American servicemen. This demand could not be fully met though as 39 O Anderson., ‘A Century of Sapphire Mining’, (1971) Queensland Government Mining Journal Vol 72; No 832 p41. 40 ‘Clermont Mineral Field. Warden’s Report for March’, (1936) Queensland Government Mining Journal Vol 37; No 431 p141. 41 Walda L. Scholler., Images of the Anakie Sapphire Fields- Queensland (E. and W. Scholler: Yeppoon, 1993) p122. Exhibit Number 7. -- 17 of 65 -- there were only aged miners left working the fields. The Acting Clermont Warden, R. J. J. Hart in the 1944 Warden’s Report made the following observations: “There is very little mining going on at present on the Anakie gem field. About 15 miners in all are prospecting and digging for sapphires. They do not appear to be having any great luck at the present. During the early months of the year Mr. Heiser, gem buyer, of Brisbane, visited the fields and bought sapphires to the value of 2500 pounds. The majority of the stones purchased had been held by the miners on the field for years.”42 [54] The Clermont Warden’s Reports for 194543 and 194644 were much the same with statements made as to the low level of work being carried out and the low number of miners on the fields. By 1948 there were signs of recovery but the majority of miners still relied on prospecting assistance. [55] In 1950 it was considered that the Anakie Sapphire Fields were worked out. This was a period of draught and mining was left to the hardy few. Operations were confined chiefly to casual prospecting and shallow mining on previously worked areas. Little or no production was being obtained. [56] Mr S.J. Squires on a visit to the Rubyvale section of the Anakie Sapphire Fields in 1950 noted: “The field today presents a very different picture to the days of the past, when many men were busily engaged in seeking the beautiful gems which were then fairly plentiful in the district. Now, owing to the scarcity of gem material and the high wages being offered in other occupations, most of the diggers have forsaken their old occupation . . . .At the present time there are not more than a dozen diggers searching for these precious gems. Most of these men are elderly and work only part time at gem digging . . . .The prices today are not attractive enough and do not compensate the diggers for the long hours of hard work in searching for the stones.”45 [57] By August 1951 production was virtually at a standstill. [58] Mr S. J Squires visited the sapphire fields again in 1953 and lamented on their demise: “Five years ago, there were up to 50 able-bodied men and aged pensioners seeking the precious gems . . . .Since then economic pressure has been responsible for all the able- bodied men leaving the digging for the much more lucrative work of sleeper cutting and station work. At the time of my last visit, in November 1952, there were not more than 42 ‘Clermont. Warden’s Report for June’, (1944) Queensland Government Mining Journal Vol 45; No 513 p184. 43 Clermont Warden’s Report’, (1945) Queensland Government Mining Journal Vol 46; No 519 p26. 44 ‘Clermont Warden’s Report’, (1946) Queensland Government Mining Journal Vol 47; No 534 p118. 45 S.J.Squires., ‘Recent Visit to the Anakie Sapphire Fields’, (1950) Queensland Government Mining Journal Vol 51; No 590 p945. -- 18 of 65 -- about a dozen aged men doing a bit of ‘scratching’. The pleasure of visiting the field is tinged with sadness as one roams about the district and sees evidence of the labour of thousands of men, who have toiled there over the past 60 years, where now all is silence. . . .the consensus on the field is that is, that those parts of the field where “wash” was known to exist and from where the great quantities of “stone” have come from in the past, have been very thoroughly worked . . . .I feel, however, that like most old mining fields, Anakie will never be quite finished, and that there will always be a “bit” to be got for many years ahead.”46 [59] Mr. Squires prediction was correct. Sapphire production in the 1950s remained very low with the lowest ever production of sapphires was recorded in 1957, at $40.00*. [60] Prices for sapphires began rising in the 1960s though and mining activity steadily increased. Through the sixties more miners gradually came to permanently reside in the area. It was in the sixties that the gemfields became a Mecca for tourists. The prosperity that flowed from the war years and the greater occurrence of families with cars led to more people travelling - this included excursions to the gemfields, despite the treacherous roads. Tourists brought their caravans and tour coaches began to roll in. Walda L. Scholler reports that from April to September the fields were always crowded with visitors digging and searching until their holiday time ran out47. [61] The tourists were not always welcomed by the miners and there was often a feeling that the tourists found all the best gems. Walda L. Scholler describes how miners were concerned that tourism would break up the neat packaging of fossicking life48. [62] Reflecting on the first 90 (or so) years of gem mining there are some common trends that emerge- mining was conducted by a small number of gem miners, who worked individually on small claims. The gem miners used hand tools and some small pieces of machinery to mine and treat sapphires. There were no large companies and no large scale mining tenements on the fields. Before the influx of tourists, life on the gemfields was fairly quiet. 46 S. J. Squires., ‘Is the famous Anakie Sapphire Field finished ?’,(1953) Queensland Government Mining Journal Vol. 54, No. 615 p10. 47 Walda L. Scholler., Anakie. The Sapphire Fields of Central Queensland- Australia (E. and W. Scholler: Anakie, 1985) p16. Exhibit Number 2. 48 Ibid p16. Exhibit Number 2. -- 19 of 65 -- [63] Reflecting the ethos on the gemfields, parts of the gemfields were proclaimed Restricted Mining Areas in 1970. An area of about 158 square miles was set aside in the Anakie, Willows, and Glenalva field areas. In these areas there were restrictions concerning the size of the mining tenement that could be granted and the tools that could be employed to mine the area49. [64] The Mining Regulations (Qld) 1964 stipulated restrictions on the type and size of mining tenements that could be held in these Restricted Mining Areas; only restricted mining claims could be issued and the area of the restricted mining claim was not to exceed 66 feet by 66 feet50. Miners in Restricted Mining Areas also had to hold a Miner’s Right51. Further, a miner could only hold an interest in one restricted mining claim at any one time52. Machinery other than picks, shovels, hammers, gads, sieves, and windlasses were not permitted within the restricted mining area unless the warden approved it in writing53; the same applied to the use of explosives54. [65] In 1971 these Regulations were amended55 with extra provisions inserted designating certain land in the Anakie Mineral Field within the parishes of Anakie, Keilambete and Kettle as Restricted Mining Areas56. Figures 2, 3, 4, 5 and 6 show the Restricted areas as they were in 1971. In the areas in Section B, the only mining tenement that could be held was a Special Gem Claim; the area of this claim was not to exceed 3 acres57. Miners could not hold an interest in more than one Special Gem Claim at a time58 and could not amalgamate Special Gem Claims59. In the areas set out in Section C, the only mining tenement that could be held was a restricted mining claim60, and the area of the restricted 49 Proclaimed in the Queensland Government Gazette 23 May 1970 Vol. ; No. 30; Mining Regulations (Qld) 1964 Part III Subdivision IX Regulation 68 Schedules 1 to 4. 50 Mining Regulations (Qld) 1964 Regulations 68C, 68F. 51 Mining Regulations (Qld) 1964 Regulation 68B. 52 Mining Regulations (Qld) 1964 Regulations 68I. 53 Mining Regulations (Qld) 1964 Regulation 68J. 54 Mining Regulations (Qld) 1964 Regulation 68K. 55 Queensland Government Gazette 22 May 1971 No. 32; Vol. CCXXXVII p509-10. Sections A, B, C and D were inserted in Subdivision IX. Sections A, B, C, and D all pertained to the Anakie Sapphire Fields. 56 Mining Regulations (Qld) 1964 Subdivision IX Section B Regulation 68N-Z. 57 Mining Regulations (Qld) 1964 Regulation 68P. 58 Mining Regulations (Qld) 1964 Regulation 68U. 59 Mining Regulations (Qld) 1964 Regulation 68V. 60 Mining Regulations (Qld) 1964 Regulation 68AB. -- 20 of 65 -- mining claim could not exceed 300 by 300 feet61. In the areas set out in Section D Schedule 1 the only mining tenement that could be held was a Restricted Prospecting Area claim62 which could not exceed an area of 10 acres63. If a holder of a Restricted Prospecting Area claim desired to mine for sapphire within the area, they could mark off and hold a Special Gem Claim which was not to exceed 3 acres64. Within these areas in Sections B, C, and D there were no restrictions placed on the use of machinery. Regulation 68J restricted the use of machinery on the areas in Section A, namely the original 158 square miles that had been proclaimed as Restricted Mining Areas, but this restriction did not apply to the areas in Sections B, C, and D. Thus at this time machinery mining was permitted on certain parts of the gemfields. These areas were outlying areas where few gem miners ventured and where difficult areas to access. 61 Mining Regulations (Qld) 1964 Regulations 68AC. 62 Mining Regulations (Qld) 1964 Regulation 68AF. 63 Mining Regulations (Qld) 1964 Regulation 68AF. 64 Mining Regulations (Qld) 1964 Regulation 68AL. -- 21 of 65 -- FIGURE 2 Anakie Mineral Field. “Rubyvale – Tomahawk Creek” Restricted Area. Plan No. AM551 -- 22 of 65 -- FIGURE 3 Willows Gold and Mineral Field. “Willows – Glenalva” Restricted Area. Plan No. AM552 -- 23 of 65 -- FIGURE 4 Anakie Mineral Field. “Scrub Lead” Restricted Area. Plan No. AM1567 -- 24 of 65 -- FIGURE 5 Anakie Mineral Field. “Policeman Creek” Restricted Area. Plan No. AM1837 -- 25 of 65 -- FIGURE 6 Anakie Mineral Field. “Goanna Flat” Restricted Area. Plan No. AM1839 -- 26 of 65 -- [66] The Mining Regulations (Qld) 1964 were repealed and the Mining Regulations (Qld) 1971 introduced. The new regulations dealt with Restricted Mining Areas in Part 3 Division 3, regulation 29. These regulations were identical to those described above in the amended Mining Regulations (Qld) 1964. [67] The early seventies brought an unprecedented boom on the Anakie Sapphire Fields and life on the gemfields became something altogether different to what it had previously been. Towards the end of 1971, several Thai buyers arrived on the sapphire fields to buy direct from the miners, and the prices of sapphires quadrupled overnight. The Thai buyers brought large parcels of all grades of blue sapphires. The lower grades were especially sought after for a new heat treatment process being developed in Thailand. With this new interest came renewed mining activity and there was a massive increase in production. [68] It was at this time that restrictions on the use of machinery mining were relaxed and machinery became more widely permitted on the gem fields. As mentioned above, certain parts of the gemfields were classified as restricted areas and as such the use of machinery mining was restricted in these areas. The Queensland Government realised the potential of the gemfields in these boom conditions and that restrictions on the use of machinery prevented large scale mining companies from embracing and participating in the boom on the gemfields. [69] In 1972 the Department of Mines approached miners and asked them if they wanted machine mining on the gemfields. The meeting at which this question was asked was in the main attended by tourist fossickers, who expressed a desire for small machinery to be permitted to strip the overburden65. The Queensland Government took this a mandate for the introduction of machinery and machinery incursions were permitted on certain parts of the gemfields that had hither to been proclaimed restricted areas. [70] In 1975 the restrictions placed on the use of machinery in Section A areas were scaled back. The new regulation stated that once a restricted mining claim was 65 Walda L. Scholler., Anakie. The Sapphire Fields of Central Queensland- Australia (E. and Scholler: Anakie, 1985) p10. Exhibit Number 2. -- 27 of 65 -- registered the holder of the restricted mining claim could use such machinery, mechanical devices or other equipment which was complimentary to and kept with the nature of hand mining operations so long as it was approved in writing by the warden66. Figures 7, 8, 9, 10, 11, 12 and 13 show the Restricted Areas that existed in 1976. 66 Mining Regulations (Qld) 1971 Regulation 29J. FIGURE 7 Willows Mineral Field. Restricted Area. Mining Plan No.26283 -- 28 of 65 -- FIGURE 8 Willows Mineral Field. Restricted Area. Mining Plan No. 26284 -- 29 of 65 -- FIGURE 9 Anakie Mining Field. Restricted Area. Mining Plan No. 30962 -- 30 of 65 -- FIGURE 10 Anakie Mining Field. Restricted Area. Mining Plan No. 30963 -- 31 of 65 -- FIGURE 11 Anakie Mining Field. Restricted Area. Mining Plan No. 30964 -- 32 of 65 -- FIGURE 12 Anakie Mining Field. Restricted Area. Mining Plan No. 30965 -- 33 of 65 -- FIGURE 13 Restricted Area. Mining Plan No. 30966 -- 34 of 65 -- [71] In September 1976 Division 3 of Part 3 of the Mining Regulations (Qld) 1971 was repealed. In October 1976 the Mining Regulations (Qld) 1971 were amended and subregulations (7)(8) and (9) inserted into regulation 12. These new subregulations incorporated only some of the land that had previously been proclaimed as Restricted Mining Areas. As well as this reduction in the size of Restricted Mining Areas, the new subregulations did not refer to the areas as ‘Restricted Mining Areas’. Restrictions remained in these areas on the use of machinery; claims could only be taken up on the condition that, when the claim was registered, no machinery, other than machinery, mechanical devices or other equipment which was complimentary to and kept with the nature of hand mining operations in prospecting or mining. Machinery, mechanical devices or other equipment capable of excavating or ripping the surface of land was prohibited67. [72] Large mining companies were attracted to the area; the lifting of restrictions on the use of machinery for much of the land meant that sapphire mining could be profitable for a large company. Soon bulldozers, rippers, tractors, graders, loaders and draglines were operating. [73] Much of the area between Rubyvale and Sapphire was opened up to machinery mining during this time and in the early 1970s large areas of land were set aside for commercial mining projects. Within the areas set aside for commercial mining, companies could take up Special Mining Claims of a maximum of three acres. Mining Leases were also available. [74] The gemfields became a hive of activity with small hand miners, large companies employing machinery, as well as tourist fossickers, all working the sapphire fields. At the peak of activity at least one hundred large machine operators and four hundred small hand miners were working the fields. The Clermont Warden, Mr. L. F. O’Connell, in a 1973 report noted: “With the high prices for sapphires still being obtained, the fields and in particular the Rubyvale and Sapphire areas, are a hive of industry with permanent miners, both large 67 Mining Regulations (Qld) 1971 Regulation 12(7). -- 35 of 65 -- and small, and tourists alike all trying to win good stone. Miners Rights issued at Anakie during the month numbered 167 while 50 were issued at Clermont. With the cooler months approaching, it can be expected that the population of the fields will be greatly increased with the ever increasing influx of tourists especially from the south, who venture north this time of the year.”68 [75] The small miners felt threatened- there was no way they could compete. At this time the framework of sapphire fields life began to crack69. Small miners found themselves in a quandary- whilst objecting to the use of machinery they saw the benefits that machinery could bring in terms of the amount of material that could be mined. Some small miners managed to save a sufficient amount so as to purchase a small machine. [76] If the small miners had been ambivalent towards tourists visiting the fields, they were hostile towards large scale miners. Open conflict emerged between the small miners and the machinery miners- associations were formed and grievances taken to Parliament. T he local newspaper, the Central Queensland News, reported stories of machinery frequently being sabotaged by the small miners and fights breaking out70. This conflict tainted the area and the tourist industry declined in areas of intense machine mining. [77] The Willows, Glenalva and Tomahawk Creek fields were not opened up to machinery mining and these areas continued to attract tourists. Tourists tended to stay away from the areas that were been vigorously pursued by the large miners. In the late 1970s the Willows township emerged and The Willows gemfields were gazetted. [78] In the mid 1970s prices began to fall and production decreased significantly. After 1977 the downturn became more acute as Thai buyers abandoned the Australian fields and began buying large quantities of sapphires from Sri 68 ‘Warden’s and Inspector’s Reports. Clermont District’, (1973) Queensland Government Mining Journal Vol 74; No 861 p261. 69 Walda L.Scholler., Anakie. The Sapphire Fields of Central Queensland – Australia (E. and W. Scholler: Anakie, 1985) p17. Exhibit Number 2. 70 Central Queensland News cited in, L.P Villarroya and Terri Baker, Central Queensland Sapphire Fields Millennium SeriesBook No. 4 Historical Diary Combining all facets of the Gemfields’ recorded History (L.P. Villarroya and Terri Baker: Sapphire, 2001) pp62, 64, 65. Exhibit Number 8. -- 36 of 65 -- Lanka71. This led to the virtual collapse of the industry. Many machine miners left the fields at this time. After this, the tourists began to return. [79] In the 1980s there were some periods of growth, but generally prices fluctuated and production corresponded to this fluctuating demand. Production generally remained low and this curtailed machine mining activities. In 1985 commercial operations had dwindled and fewer than 12 machine mining operators worked with any regulatory72. Mr Gary Smith, the Department of Mines Field Officer stationed at Emerald, reported that the permanent employment in machine mining of sapphires had fallen to about 60 persons while small hand miners working Mining Claims were fewer than 20073. [80] In 1981 Australia supplied 77.79 percent of the world sapphire market. The Anakie gemfields produced approximately 66 percent of the Australian output, thus over half the world’s supply came from the Anakie Sapphire fields. In 1987 large scale mining began in Thailand and the percentage of sapphire Australia supplied to the world sapphire market steeply declined to about 25 to 30 percent. [81] Although the sapphire mining boom may have passed, the tourist boom escalated in the eighties. Access to the fields had been greatly improved in the seventies with bitumen roads and electricity and water had come to the fields in 1977 and 1979 respectively, making holidaying on the gemfields more pleasant. Mr Gary Smith estimated that at least 30 000 tourists visited the gemfields during the 1985 winter season, many of whom stayed for weeks74. To cater for the tourists the then Department of Mines, in 1986 introduced legislation which opened over 9000 hectares of sapphire bearing ground to tourism75. In these areas, called Fossicking Areas, commercial mining was not permitted and only hand mining allowed. 71 Barry J Neville and Friedrich von Grielinski, ‘Sapphire and Ruby in Australia’, (1999) Queensland Government Mining Journal Vol 100; No 1171 pp9-10. 72 ‘Sapphire fields look to a glowing future in tourism’, (1985) Queensland Government Mining Journal Vol 86; No 1007 p420. 73 ‘Sapphire fields look to a glowing future in tourism’, (1985) Queensland Government Mining Journal Vol 86; No 1007 p420. 74 ‘Sapphire fields look to a glowing future in tourism’, (1985) Queensland Government Mining Journal Vol 86; No 1007 p420. 75 Walda L. Scholler., Images of the Anakie Sapphire Fields – Queensland (E. and W. Scholler: Yeppoon, 1993) p126. Exhibit Number 7. -- 37 of 65 -- [82] Figures 14 – 26 detail the changes in the relevant restricted area throughout the 1980’s. FIGURE 14 Anakie Mining Field. “Scrub Lead” Mining Plan No. 30732 -- 38 of 65 -- FIGURE 15 Anakie, Clermont and Willows Mining Field. “Anakie Area” Mining Plan No. 40293 -- 39 of 65 -- FIGURE 16 Anakie Mining Field. “Retreat Creek Area” Mining Plan No. 31025 -- 40 of 65 -- FIGURE 17 Anakie Mining Field. “Reward Area” Mining Plan No. 31174 -- 41 of 65 -- FIGURE 18 Anakie Mining Field. “Sapphire Area” Mining Plan No. 31343 -- 42 of 65 -- FIGURE 19 Anakie Mining Field. “Retreat Creek” Mining Plan No. 31344 -- 43 of 65 -- FIGURE 20 Anakie Mining Filed. “Scrub Lead” Designated Area. Mining Plan No. 34340 -- 44 of 65 -- FIGURE 21 Anakie Mining Field. “Rubyvale”. Designated Area. Mining Plan No. 34341. -- 45 of 65 -- FIGURE 22 Anakie Mining Field. “Reward” Designated Area. Mining Plan No. 34342 -- 46 of 65 -- FIGURE 23 Anakie Mining Field. “Sapphire” Designated Area. Mining Plan No. 34343 -- 47 of 65 -- FIGURE 24 Anakie Mining Field. “Divide”. Designated Area. Mining Plan No. 40825. -- 48 of 65 -- FIGURE 25 Anakie Mining Field – Area within Anakie Mining Field exclusive of Designated Areas and Departmental Areas -- 49 of 65 -- FIGURE 26 Gemfields of Central Queensland. Exhibit 9. -- 50 of 65 -- [83] Walda L. Scholler in 1985 described the conditions on the sapphire fields: “The Anakie District, with its warm climate and independent life-style, is a healthy, if not unpleasant place in which to live. Every miner can eventually own his own home, be it prospector’s shanty or something more elaborate closer to town. When there is money and sapphire prices are high, the miner lives well. A combination of enthusiasm and cautious good management ensures his life-style will stay intact. Miners are not necessarily all males. There is an excellent female representation on the sapphire fields some of whom work as hard as, if not harder than, their male mining counterpart. They too construct their dwellings of local materials and require little if any assistance from male members of the community to achieve success in building (or mining) ventures. The Anakie Sapphire Fields are unique. The timelessness of mining in this isolated area has only been broken by the arrival of machinery mining, tourism and amenities, and the unwillingness of some miners to accept these intrusions. Nature, not man, rules the Anakie mining domain. A miner’s ability to sustain himself under any conditions sifts itinerancy from permanence and generates a self-sustaining community which appears to be intolerant to outside interference.”76 [84] In 1989 the Mineral Resources Act 1989 was enacted77 and in 1990 the Mineral Resources Regulations 1990 commenced to compliment the Mineral Resources Act 198978. Restricted Areas are dealt with in Schedule 4 of the Regulations (earlier Schedule 5). Parts of the areas referred to above as Restricted Areas were reinstated in the new Regulations as Restricted Area 179. In Restricted Area 1 there were restrictions on the type of mining tenements that could be granted80 and later amendments restricted the size and number of mining tenements that could be granted81. These restricted were varied again in 1995 with the prohibition on the grant of mining leases82. These restrictions over Restricted Area 1 continue through to today. Figure 27 shows Restricted Area 1 as it exists today. 76 Walda L. Scholler., Anakie. The Sapphire Fields of Central Queensland – Australia (E. and W. Scholler: Anakie, 1985) p11. Exhibit Number 2. 77 Mineral Resources Act 1989 , ss. 1.1-1.2. 78 Mineral Resources Regulation 1990 , s. 1.2. 79 Mineral Resources Regulation 1990, Schedule 5 Part 2. 80 Mineral Resources Regulation 1990, Schedule 5 Part 2, s. 2. 81 Mineral Resources Regulation 1990, Schedule 5 Part 2, s. 2(2)(3)(4). Reprint number 3. 82 Mineral Resources Regulation 1990, Schedule 4 Part 2, s. 2(2)(a)(b)(c)(d)(e), (3). Reprint number 4. -- 51 of 65 -- FIGURE 27 Restricted Area 1 June 2001. -- 52 of 65 -- [85] In 1990 the price of gems were down. The Member for Peak Downs at the time, the Honourable V.P. Lester, commented, “the miners are not having the best of times. However, those people are vigilant and will stick by their guns.”83. Mechanised mining continued but at a rate much lower than in the 1970s. In 1998 the commercial mining of sapphire on the Anakie Sapphire fields had virtually come to a stand still, with many large producers either leaving the industry or suspending mining operations temporarily or indefinitely84. Neville and von Grielinski speculated that the industry would survive this current downturn and mining would resume once economic conditions improve and the demand for sapphires returns85. [86] The future of Australia’s sapphire industry remains uncertain; almost all commercial sapphire mined is destined for the export market. In recent years, Australia’s position has been further impeded by increased production from other low-cost sources such as Madagascar, Nigeria and Tanzania. During 1997-98, the downturn experienced was the result of several factors, including low prices for stone, the virtual collapse of markets due to the Asian financial crisis, the depletion of known resources, increased production costs and ongoing difficulties with access to land for exploration and mining. However, there are opportunities for further exploitation and mining and mining tenures remain over the main gem mining areas86. [87] The tourism industry on the fields remains strong. In 1994 the Queensland Government introduced the Fossicking Act (Qld) 1994. Designated Fossicking Areas (formerly Fossicking Areas) were set aside specifically for tourists. Fossicking areas are now on the circuit of destinations of tourists, and commercial operators offer fossicking as part of their itineraries. There are caravan parks and cabins and motel accommodation available at the hotel. There are two information centres. A big tourist draw card is the annual Gemfest which celebrates the gem industry of central Queensland. The event 83 Hansard, Legislative Assembly 6 November 1990 p 4467-8. 84 Barry J. Neville and Freidrich von Grielinski, ‘Sapphire and Ruby in Australia’, (1999) Queensland Government Mining Journal Vol 100; No 1171 p.1. 85 Barry J. Neville and Friedrich von Grielinski, ‘Sapphire and Ruby in Australia’ , (1999) Queensland Government Mining Journal Vol 100; No 1171 p11. 86 Barry Neville, Department of Mines and Energy, Queensland Australia at www.dme.qld.gov.au/resdev/landuse/sapphire.htm visited 31.05.2001. -- 53 of 65 -- takes place at Anakie and apparently has gone from strength to strength since its inception in 1988 as part of Australia’s bi-centenary celebrations. [88] The gem fields still continue to be inhabited and worked to the present day. Some of the gem miners who work the fields today are descendants from the pioneers of the gem fields. [89] Doctor Lorna McDonald reflects: “The great majority of these people seem to have valued the independence which hand mining allowed them, more than the regular wages they might have earned elsewhere. In pursuing their chosen lifestyle they developed the rugged individuality we still associate with the Central Queensland gemfields . . . .It seems likely that the toughness and independence found on the Gemfields in the past will continue into the twenty-first century despite technological and social change. Harsh country, concealing exquisite gems, provides an irresistible challenge to a ‘special breed’ of men and women.”87 [90] The remarks made by Benjamin Dunstan in 1902 are still applicable today in describing the sapphire fields: “Let it be known that the field is a large one, that the extent of sapphire wash is second to none in the world, and that a constant supply of stones could be maintained.”88 [91] It seems likely that the Anakie Sapphire Fields will continue to be inhabited and worked for a long while yet, and the rich history created by the gemfields will long continue. The Questions – Question 1 [92] Having examined in detail the history of the gemfields, I now turn to the questions raised by this Application. I will examine initially the first question which is as follows: “Does the reservation in leases or deeds of grants of “the rights of access for the purpose of searching for and working any minerals in any part of the land” have a bearing on the landowners’ right to compensation under the Mineral Resources Act 1989?” [93] Exhibit 1 includes a copy of GHFL37/3735A. It contains the following specific reservation: “Specified Reservations – 87 D. B. Monteagle., The Sapphire Fields Story (Central University Press: Rockhampton, 1995) p1. Exhibit Number 3. 88 Benjamin Dunstan., ‘The Sapphire Fields of Anakie’, (1902) Queensland Government Mining Journal Vol 3; No 24 p239. -- 54 of 65 -- (a) all minerals (as defined by the Mineral Resources Act 1989) on and below the surface of the land; and (b) the right of access for the purpose of searching for and working any mines (as defined by the Mineral Resources Act 1989) in any part of the land; and (c) all petroleum (as defined by the Petroleum Act 1923) on or below the surface of the land; and (d) all rights of access for the purpose of searching for and for the operations of obtaining petroleum in any part of the land, and all rights of way for access and for pipe-lines and other purposes requisite for obtaining and conveying petroleum in the event of petroleum being obtained in any part of the said land.” [94] Exhibit 1 also includes copies of two other tenures for Keilambete, being GHPL202173 and SL37/48573. Each tenure contains specified reservations in almost identical terms to GHFL37/3735A the only difference being of form only and of no consequence. Further, GHPL202173 contains an additional specified reservation. [95] Exhibit 1 is a letter from the Applicant to the Tribunal dated 25 March 2001, together with attachment. It is a mixture of assertion of fact and legal submissions. With respect to the assertion of facts, the Applicant has deposed those facts to be true and correct. With respect to the specified reservations, the Applicant has this to say in Exhibit 1: “7. The actual Grazing Homestead Freeholding Lease Title Deed for the area of this mining lease application, Lot 19 on CLM 694) has “Specified Reservations” to protect the right of mining within this are, as follows:- “The right of access for the purpose of searching for and working any mines (as defined by the Mineral Resources Act 1989) in any part of the land”. This same Specified Reservation exists on all the titles I have seen for areas within the designated Mining Area, including freeholding, GHPL and Special Leases – but these special conditions do not appear on Title Deeds for neighbouring properties which are outside the designated mining area. These Specified Conditions were inserted in the land titles to clearly indicate the precedence and importance of mining, and the area within the Mining Field should not therefore be viewed as a grazing area on which miners have to fight for the right to mine, but should be regarded as a mining area in which landowners have been given restricted rights to run their stock. 8. As a result of the Specified Conditions to protect the rights of miners in all areas within the designated mining area, the landowners were required to allow access by miners for the purpose of mining in all areas, and the existence of mining as a matter of precedence was clearly indicated to existing landowners and to any intending purchasers of land within this area.” [96] As indicated previously, Exhibit 1 then goes on to include copies of tenures relating to Keilambete, each containing the Specified Reservation. -- 55 of 65 -- [97] Whilst the Applicant referred to tenures outside the designated mining areas as not containing the Specified Reservations, no such tenures were tendered in evidence. [98] Although in essence the Applicant asserts that the existence of the Reservations in the tenures is unique to the Central Queensland Gemfields, that is clearly not the case. [99] The Mineral Resources Act 1989 states at s. 8(4): “(4) Each deed of grant of lease of unallocated State land must contain a reservation of– (a) minerals on and below the surface of the land; and (b) the right of access for prospecting, exploring or mining” [100] This provision did into come into existence for the first time in 1989. It’s history stretches back to the turn of last century and earlier. For instance, the Mining on Private Land Act 1909 contained the following provision in s. 6(2): “(2) Reservations in Crown grants. All Crown grants and leases under any Act relating to Crown land issued after the commencement of this Act shall contain a reservation of all gold and minerals on and below the surface of the land comprised therein, and also a reservation of the right of access for the purpose of searching for or working any mines of gold or minerals in any part of the land.” [101] I note that in this matter and in other cases on the same of similar point currently reserved by me, the parties have been unable to find any authorities to assist in answering the question under consideration. However, authorities and commentaries do exist which assist in both answering the question and explaining the rationale for the inclusion of the Reservations in the first place. [102] In the Queensland Statutes (1962 Reprint) Volume 12, a commentary appears regarding the 1909 Mining on Private Land Act in the following terms: “Mining on Private Land Acts, 1909 to 1965 These measures represent an attempt to reconcile the conflicting interests of persons having fee-simple estates in land on the one hand and of persons desirous of winning gold, silver or other minerals under such land on the other. By prerogative right the Crown is entitled to all mines of gold and silver within the realm, whether such mines are situate on its own lands or in the lands of a subject. This prerogative, which is said to have its origin in the King’s need of supplies for war and the coinage (Halsbury’s Laws of England, 3rd ed,. Vol. 7, p. 463, and Vol. 26, p. 325), is the foundation of these Acts. The Principal Act, which is to be read as one with the Mining Acts, s. 1, repealed all Part VII of the Mining Act 1898 except s. 62 and made some consequential amendments in ss. 46 and 48. Declaratory reservations of the various minerals to the Crown are set forth -- 56 of 65 -- in s. 6; see also s. 21A (3). The reservation of gold, no matter when the land was alienated, is absolute; the reservation of silver is subject to the exception of land alienated from the Crown under certain statutory powers before the passing of the Act; copper, tin, opal and antimony are the property of the Crown only in the case of unalienated land and in the case of land situated within the limits of a goldfield or mineral field and alienated or contracted to be alienated in fee simple from the Crown since the date fixed for the commencement of the Mining Act of 1898, namely 1 March 1899. In order to enter upon private land for the purposes of the Act a permit is necessary. This may be granted by the warden in the prescribed conditions, having a currency not exceeding thirty days. For damage occasioned by the entry the owner may be compensated out of a fee payable, not exceeding ten dollars, s. 12. The owner of any private land may himself be granted a mining tenement comprising his land, s. 15. Applications for mining tenements by persons other than the owner are governed by ss. 13 and 14. The grant of a mining tenement involves the rights declared in s. 16. Compensation for loss or damage is regulated by ss. 17-20.” [103] An extremely useful analysis of the mining law of Queensland is to be found in the judgment of Justice Drummond in Wik People v. State of Queensland and others and89. It is to be noted that although the judgment of His Honour was reversed by the High Court on issues relating to Native Title and pastoral leases, an appeal against His Honour’s judgment on the minerals question was abandoned. [104] Justice Drummond had this to say: “Veatch, in Mining Laws of Australia and New Zealand, United States Geological Survey, Bulletin 505, 1911, describes the history of the policies of the governments of Queensland as to alienation of minerals from the time the Moreton Bay District was declared open to settlement in 1842 and lands were first sold in 1843 at p 163: From settlement of colony in 1843 to 1885: No reservation of minerals in deeds. 1843 to 1860: Lands sold without regard to mineral values until discovery of gold in 1858, when government instituted policy of refusing to sell any lands “when there was any reason to suppose that they contained gold”. Under the gold fields act the Governor could declare specified areas gold fields and practically exempt the lands therein from sale. [See ss 23 and 25 of the Gold Fields Act 1874.] 1860 to 1872: Mineral lands other than gold sold in areas not exceeding 640 acres at £1 per acre after an expenditure in development of a like amount. [See s 22 of the Crown Lands Alienation Act 1860 and s 32 of the Crown Lands Alienation Act 1868.] Coal lands were not sold between 1860 and 1865. After 1860 all leases [as contrasted with grants in fee simple] contained a reservation of all minerals with the right to mine on payment of damages. 1872 to 1882: Mineral lands sold in areas not exceeding 320 acres at 30s per acre after an expenditure of £1 per acre in development work. [See ss 1, 4, 8 and 21 of the Mineral Lands Act 1872 (Qld).] 1881 to date [1911]: Sale of known mineral lands practically abandoned and policy of leasing such lands enforced in all cases [See the Mineral Lands Act 89 (1996) 63 FCR 450 @ pg. 491 and 492. -- 57 of 65 -- 1882.] Governor empowered to constitute, by proclamation, any portion of the public land a mining district. The effect of this was generally to reserve the land from sale, but even in a mining district lands not known to contain minerals were sold. [Section 5 of the Act of 1882 empowered the Governor in Council to cancel any lease or licence for pastoral purposes once the land was declared a minding district.] 1885 to 1892: Gold reserved in all deeds. [See ss 3, 8 and 110 of the Crown Lands Act 1884.] 1882 to 1889: Gold reserved in all deeds. Silver as well as gold reserved in all deeds for lands sold within a mining district or gold field. 1898 to 1899: Silver and gold reserved in all deeds. [See ss 12 and 13 of the Land Act 1879.] Up to 1882, both grants in fee of Crown lands and sales in fee of Crown lands for mineral purposes carried with them title to all minerals, although the position with respect to gold and silver is a complicated one. Veatch comments that from 1882 a policy of leasing lands containing minerals was adopted and the sale of such lands practically abandoned. Section 8 of the Crown Lands Act 1884 (Qld) empowered the Governor in Council to lease any Crown lands, subject to the reservations authorised by the Act: s 109 required all such leases to contain reservations of all mines and minerals and of the right of access for the purpose of searching for and working those mines and minerals. These provisions were repeated in ss 12 and 14 of the Land act 1879 (Qld), which replaced the Crowns Lands Act 1884. Section 6(2) of the Mining on Private Land Act 1909 (Qld) required all grants and leases of Crown land made after the commencement of that Act to contain similar reservations; s 6(3) of the Land Act 1910 (Qld), which replaced the Land Act 1879, picked up this provision. This policy has continued: see s 6(3) of the Land act 1962 (Qld) and ss 14, 15 and 21 of the Land Act 1994 (Qld) read with s 1.9(4) of the Mineral Resources Act 1989 (Qld) and s 6 of the Petroleum Act 1923 (Qld).” [105] In the High Court case of Hutchinson v. Scott, Griffith CJ made the following important observations: “…Mr. Justice North reviewed the law on the subject at considerable length; but I shall only refer to one or two passages. He quotes (1) from the celebrated Case of Mines (2), in which twelve judges in 1568 decided authoritatively “that by the law all mines of gold and silver within the realm, whether they be in the lands of the Queen, or of subjects, belong to the Queen by prerogative , with liberty to dig and carry away the ores thereof, and with other such incidents thereto as are necessary to be used for the getting of the ore.” The first part of that passage has never been dissented from ; as to the second part, “with liberty to dig and carry away.” &c. I know of no instance recorded in which the Crown has exercised that right. It was denied by Lord Hardwicke in Lyddall v. Weston (3). At any rate there is not instance in which the Crown has asserted the right to enter land for that purpose. It has been undoubtedly the practice in many parts of the British Empire for owners of private land to look for gold and to take it away without being interfered with by the Crown. It was not held in Attorney-General v. Morgan (4) that it was unlawful, in the sense of being an offence, but that the Crown were entitled to restrain a subject from taking away the fold without a licence. In the Court of Appeal the decision of Mr. Justice North was affirmed. The defendants relied upon certain Statutes to which it is not necessary to refer. The difficulty that arises as to the right of the Crown to enter, and also as to the rights of the subject in procession of the land, has given rise to legislation in various parts of the British dominions, and various Statutes, commonly called Mining on Private Lands Acts, have been passed to deal with the matter. Their double purpose is to authorise gold seekers, having authority of the Crown, to enter as against the owner of the freehold and search for gold, and to provide statutory means of -- 58 of 65 -- enforcing the Crown’s supposed right of entry. Another object is to give a good title as against the Crown to the gold when taken…”90 [106] Further insight is to be gained from the House of Lords decision in Ramsay v. Blair. In that case, Lord Chelmsford, as part of the majority, had this to say: “The simple question arises upon three grants with reservations made by the Appellant, Mr Ramsay of Whitehill. These grants were made in 1825, 1827, and 1857. The first, that if 1825, contained this proviso: Reserving always to me, my heirs and successors, the coals and coal-heughs, all of the said hail lands to be wond and disposed upon me and my foresaids at out pleasure. The grant of 1857 is said to be practically in the same terms; the reservation is- Excepting always the coal within the said several subjects to the said James Blair, which coal is hereby expressly reserved to the said Robert Balfour Wardlaw Ramsay, with full power to him to dig for, work, win, and carry away the same, on paying the surface damages which the ground may thereby sustain. With regard to those grants, there can be no doubt at all that the only reservation is of the coal under the surface, and the grantor would have no power whatever to carry under those lands any coals or minerals won and worked from any other lands. The reservation in the grant of 1827 is more extensive. It is: Reserving always to the said Robert Wardlaw Ramsay and his heirs and successors the whole coal, stone quarries, and all other metals and minerals within the said three acres of the lands hereby disposed, with power to search for, work, and carry away the same, they always paying to the said James Blair and his foresaids all damages. Undoubtedly under that grant the whole of the land under the surface, all the coals, and all the metals and minerals, were reserved to the grantor, and it gave him a right of course as upon his own property to make any way for any coals or other minerals that he might have in any other part of his lands… Now, it appears to me, that being upon a grant or reservation of minerals, primâ facie it must be presumed that the minerals are to be enjoyed, and therefore that a power to get them must also be granted, or reserved, as a necessary incident. As was said by Lord Wensleydale in the case of Rowbotham v. Wilson (1): “It is one of the cases put by Sheppard’s Touchstone an illustration of the maxim, ‘Quando aliquid conceditur, conceditur etiam et id sine quo res ipsa non esse potuit,’ that by grant of mines is granted the power to dig them.” This power to dig would of course be futile unless it involved the right of bringing to the surface. A necessary incident to a grant cannot therefore, in my opinion, be styled a “privilege, servitude, or easement.”91 [107] In Michael Borys v. Canadian Pacific Railway Co, The Privy Council found that: “Whatever might be the consequence of a reservation of petroleum together with a right to work it, the grant in the present case contains no such right, and, says the appellant, gives no right in the respondents to interfere with the gas in the cap or to deprive him of 90 (1906) 3 CLR 359 @ 367-8 91 1953 AC 217 @ 227-8 -- 59 of 65 -- his property in it. In their Lordships’ opinion, the absence of a clause giving a right to work does not abrogate or limit the powers of the respondents. Inherently the reservation of a substance, which is of no advantage unless a right to work it is added, makes the reservation useless unless that right follows the grant. The true view is that such a reservation necessarily implies the existence of power to recover it and of the right of working…. It was not suggested on behalf of the respondents in the present case that there existed any circumstances which might empower them to let down or interfere with the surface of the land except the right to enter upon the appellant’s land, to sink a shaft and to recover the petroleum, nor was such a right denied by the appellant.”92 (emphasis mine) [108] It is to be noted that compensation to the landholder was not an issue in the case, but rather access to petroleum as opposed to gas. [109] The position was probably best summarised by Forbes and Lang in their book Australian Mining and Petroleum Laws, second edition93, in the following terms: “Compensation [1036] When a State adopts the policy of authorising strangers to mine on or under private land the question of compensating the private owner naturally arises. Generally the minerals sought are already Crown property so that no compensation for them is payable. (See, however, [201-[223] above.) Compensation refers mainly to the diminution of enjoyment of the land for non-mining purposes in consequence of mining operations. It is recognised that a tenant or licensee from the Crown or from a private landowner may sustain such loss as well as a proprietor in fee simple. The various Acts contain wide-ranging compensation provisions. In New South Wales (s 122) owners and occupiers are entitled to compensation “for any loss…suffered or likely to be suffered by them as a result” of mining rights and operations. This statement of principle is followed (s 124(b)) by recognised heads of claim including “all consequential damages”. The Acts of Victoria (s 306(1)), Queensland (s 129) and other jurisdictions observe the same principle and contain similar “dragnet” clauses in the list of compensable items. In Benggong v. Bougainville Copper Pty Ltd (1971) 124 CLR 47 the High Court considered an enactment which provided for compensation “in respect of prospecting or mining”. It was held to include damage resulting from the construction of an access road. Barwick CJ (with whom McTiernan, Menzies and Owen JJ agreed) observed (at 52): [C]ompensation in respect of property and mining…is a large expression and quite apt, in my opinion, to include compensation for damage done in activities which are ancillary to mining and carried out to further the mining venture…I see no room whatever for…a narrow interpretation. A challenge to the “generosity” of the warden’s assessment failed primarily on procedural grounds. Some attitudes indicated by the judgments in Benggong are, first, a broad liberal approach to compensation, extending it as far as the legislation will permit, to embrace all loss or damage to an owner or occupier of private land as a consequence of mining and ancillary operations. Second, there appears a judicial disinclination to interfere with the warden’s assessment of compensation, provided the warden has exercised jurisdiction within the terms of the legislation.” 92 (1876), 1 App. Cas. 704 @ 705-6. 93 Butterworths Pty Ltd (1987) pg. 214 -- 60 of 65 -- [110] The legislation; the Reservations in the terms; and the historical development of mining cannot be received in isolation. In my view the purpose of the Reservations, and their resultant effect at law, is beyond doubt. [111] Since the Case of Mines, there has existed the concept of prerogative of and/or Reservation to the Crown of certain minerals, together with ‘such other incidents thereto as are necessary to be used for the getting of the ore94’. Over the long history of legislative and common law development as set out above, the position has been reached today where the existence of the Reservations removes any doubt as to the rights of the Crown to the minerals contained in the land, together with access rights over private land to win those minerals. Relying on those Reservations, by the Mineral Resources Act 1989, the Crown is thus able to grant leases, etc, to others to access the land and take the minerals, subject however to all those provisions of the Mineral Resources Act 1989 which relate to compensation. [112] Accordingly, the answer to question 1 is no. Question 2 [113] Question 2 is in the following terms: “Can claims for compensation be made out on land contained within Restricted Area 1 for losses involving diminution of value and blot on title?” [114] For completeness, Restrict Area 1, or RA1 as it is commonly known, is currently to be found in Schedule 4 of the Mineral Resources Regulation 199095. [115] In his evidence on this question, the Applicant, after conceding that: “The method of access and the conditions of access must be agreed and must be part of the submission under the Mineral Resources Act. A miner is at all times required to comply with the Mineral Resources Act. And his interference with the properties is controlled to an extent by that Act.”96 went on to assert: 94 Case of Mines Plowd., 310 @ 335. 95 As regards the operation of Schedule 4 Mineral Resources Regulation 1990 see Re Redhead [2001] QLRT 34. 96 Transcript 05.04.01, pg. 9 line 17. -- 61 of 65 -- “So sir I contend the only possible compensation that can be payable to a miner – from a miner to a land owner within the restricted area RA1, the gazetted area of mining in the gemfields, is for loss of grass. I close there sir.97 [116] In response Mr Houen for the Respondents made the following written submissions: “10. With respect to Question 2, the Restricted Area provisions of the Act (section 391) are and have always been directed exclusively at regulating the type and extent of mining tenements which could be applied for, or granted. It appears from the limited amount of research we have so far been able to conduct that the provisions in predecessor legislation had the same effect. 11. We cannot find any evidence to support a proposition that Restricted Area provisions have ever had the effect of restricting the rights of the landowner regarding compensation, or in any other way whatsoever. 12. So it is with the present Restricted Area 1 at the Gemfields, where by virtue of the gazettal application for or grant of an exploration permit or a mineral development licence is prohibited. The gazettal of Restricted Area 1 only regulates mining tenements and has no bearing on the rights of the landowner either generally or specifically, on compensation or on anything else.” [117] In my view, the long history of mining on land within an established gemfield, as in the case here, is a factor which should be take into account when an application is made for a mining lease over such land. [118] As the Applicant said in evidence98: “There’s a physical evidence. There’s a history in the area. There’s a heritage in the area. And Keilambete property and the surrounding properties, the adjacent mining areas in the next property are part of the oldest mining areas on the gemfields. Mining people live there, work there, they even died on that land. So I believe it cannot – it is impossible for anyone to say they were not aware of mining at the time that they purchase a property. It is not a credible argument.” [119] I agree with the view of the Applicant in this regard. However, such a view is not overly helpful in answering the question at hand. In my view, it is a more appropriate consideration whether decisions are made as to whether or not it is appropriate for a mining lease to be granted in the known gemfields in general and in RA1 in particular. [120] For instance, in my view, save in the most exceptional of circumstances, a prospective miner would have to do nothing more than establish that a proposed mining lease fell within RA1 (and thus with it have the benefit of the established 97 Transcript 05.04.01, pg. 12 line 9. 98 Transcript 05.04.01, pg. 8 line 18. -- 62 of 65 -- history as set out earlier in this judgment) to satisfy the test in s. 269 (4)(b) of the Mineral Resources Act 1989 that the land is mineralised. Examples of exceptional circumstances to the contrary may be, for instance, proof of previous drilling which revealed no trace of minerals, or perhaps previous unsuccessful mining, on the land applied for. [121] S. 281 of the Mineral Resources Act 1989 is titled “Determination of Compensation by Tribunal”. Relevantly, ss. (3) is in the following terms: “(3) Upon an application made under subsection (1), the tribunal 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 of 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; and (b) in the case of compensation referred to in section 280- (i) diminution of the value of the land of the owner or any improvements thereon; (ii) diminution of the use made or which may be made of the land of the owner of any improvements thereon; (iii) all loss or expense that arises; as a consequence of the grant or renewal of the mining lease.” [122] The operation of s. 281(3) has been the subject of recent consideration by the Land Court in Zimmerebner v. Hawkins and Ors99. [123] Interestingly, this case also involved the issue of compensation for mining leases on Keilambete. It is worth noting the comments of Trickettt P in that regard: “Historically and presently, “Keilambete” has been and still is, subject to a great deal of mining for gemstones. In addition to numerous mining tenements and mining activity being carried on in the 940 hectare Reward Designated Area which has been set aside for hand-mining and over which the respondents have a Permit to Occupy, with the granting of the subject leases “Keilambete” will be subject to 13 mining leases, either granted or pending. Mr Hawkins explained that apart from the subject leases, Mozley has two (for renewal), Vella has three, Salmon has one (granted pending determination of compensation), Graham has one and Elliot has one (application). According to Mr Hawkins, in 1986 there was what he described as “a pegging spree” with 167 99 Trickettt P, Land Court, Brisbane, 30 March 1999. -- 63 of 65 -- applications lodged. However, he objected to each one and most of the applications were withdrawn.”100 [124] Trickett P then went on to describe the test that should be applied when considering s. 281(3) of the Mineral Resources Act 1989: “The test to be applied in cases such as the present one was set out by the Land Court in Smith v. Cameron (1986) 11 QLCR 64. There the Court considered provisions similar to those of section 281(3)(a) of the present Act, which were contained in its predecessor, the Mining Act 1968. In that case, the Court likened the use of land for mining purposes to compulsory acquisition of land for a limited period and applied the various principles and practices of valuation which are applied in determining compensation for the taking of limited rights over land for public purposes. In this regard the Court said at pp. 73/74: “These similarities are evident in the principles laid down by the Land Appeal Court for consideration in the latter and no better set out than in the case of P Joyce v. The Northern Electric Authority of Queensland (1974) 1 QLCR 171 where in dealing with the taking of an easement for electric line purposes the Court at page 117 said: ‘The test is the attitude of the hypothetical prudent purchaser and the extent to which in the opinion of such a person the claimant has suffered diminution in the value of his property resulting from the erection of the transmission line over his land and the creation of the easement including where appropriate severance and injurious affection damage.’ And at page 178- ‘Each case must be considered according to the terms and conditions of the easement created and the frequency and magnitude of the disturbance likely to result in consequence to the claimant’s proprietary rights.’” Applying the tests enunciated by the Land Appeal Court in Joyce’s case to the preset case, the question arises as to the attitude of a hypothetical prudent purchaser and whether such a person would consider that the property (i.e. the marketable parcel) would suffer diminution in value because of the granting of the mining leases. In this case I have to assume that such a hypothetical prudent purchaser would have regard to each of the matters provided for in section 281(3)(a), but not attribute a separate value to each of them, in determining how much less to pay for the land because of the granting of the five mining leases. But before proceeding to consider the approach that such a purchaser would take , there are some fundamental facts which such a purchaser would be aware of and there are some assumptions which must be made. Any potential purchaser of “Keilambete” as a whole, or the 11,013 hectare marketable parcel, would be well aware that there is already significant mining activity in the area. The five subject leases are on the border of the Reward Designated Area which has been made available for hand miners and fossickers and upon which there is considerable activity. The environment of the Reward Area is therefore criss-crossed by tracks, many of which may be illegal, but all of which have been tolerated by the respondents. In addition to the activity in the Reward Area, the locality is affected by a number of mining leases, with even more likely to be granted. There is no doubt that a hypothetical prudent purchaser would regard the existing mining activity as diminishing the value of 100 At pg. 3. -- 64 of 65 -- the property and would certainly pay more for it if the mining tenements and activity did not exist. The real question is the extent to which that diminution in value is increased when the subject five mining leases are granted. On the other hand, the evidence indicates that as incompatible as grazing and mining are said to be, the owners of “Keilambete” have successfully run cattle in Bush Paddock and they have grazed, apparently relatively undisturbed, throughout the areas of mining activity. There was evidence of some stock losses from cattle falling into pits or becoming bogged in tailings dams, but no evidence of cattle being killed by vehicles or mining machinery. There was, however, some evidence of disturbance of young cattle which were introduced into Bush Paddock without having experienced mining activity. There is also evidence that mining activity would disrupt mustering patters, particularly the use of the stock crossing to the south of ML2050. As a matter of law, a hypothetical prudent purchaser must assume that the miner will act lawfully, will comply with the provisions of the MRA and will conform to the commitments in his EMOS. However, I think it is fair to say that any hypothetical prudent purchaser wishing to use the property for grazing purposes would much prefer to have, and would pay something more for, a property which did not have the additional five mining leases.”101 [125] Taking into account the history of the gemfields, and subject to my observations regarding issues relating to the grant of mining leases is RA1, it is my view that the position adopted by Trickettt P is correct. [126] Accordingly, it is my view that the correct answer to question 2 is in similar terms to that as determined by the Land Appeal Court in Joyce (as quoted in Zimmerebner above) thus: Each case must be considered according to the terms and conditions of the mining lease to be granted and the frequency and magnitude of the disturbance likely to result in consequence to the claimant’s proprietary rights. [127] Before closing, it would be remiss of me not to acknowledge the assistance of two Tribunal officers – Research Officer Rachel Scarrabelotti, for her invaluable historical and legal research, and Administration Officer Joanna Hanley for the expert collation of this judgment with its various images. 101 At pp. 24-5. -- 65 of 65 --