Donovan & Anor v Kingsley & Ors [2000] QMW 87

IN THE WARDEN'S COURT OF QUEENSLAND HELD AT BRISBANE IN THE MATTER OF: BEFORE: · APPLICANT: RESPONDENT: DETERMINATION: DETERMINATION OF CO1v.(FENSATION PURSUANT TO SECTION 281 OF THE MINERAL RESOURCES ACT 1989 IN RESPECT OF RENEWAL OF MINING LEASE NUMBER 3003 and 3004 IN THE MAREEBA DISTRICT. MR F W WINDRIDGE MINING WARDEN Gary Awarua DONOVAN and Colleen Anne DONOVAN Howard A & Beverley A KINGSLEY, Margaret B & Lesley W & John W and Helen M and David L and Donald G WESTAWAY Gary Awarua DONOVAN and Colleen Anne DONOVAN (hereinafter referred to as the miners) are the holders of Mining Leases 3003 and 3004 in the Mareeba District. By an application lodged on 2 JUNE 1999, the miners seek the renewal under section 286 of Part 7 of the Mineral Resources Act 1989 of Mining Lease 3003 for a term of 10 years, such renewed tennto commence on and from 1 JULY 1999. In relation to Mining Lease 3004, an application for renewal was lodged on 2 March 2000, seeking a renewal of ten years on and from 1 July 2000. At the hearing in Mareeba on 29 June 2000, Ms C A Donovan appeared for the applicant miners. There was no appearance from the respondent landowners. Both matters were dealt with together as the leases run along Sandy Creek and are contained within the boundary of Mount 3003CMP.MAR 1 [2000] QMW 87 -- 1 of 6 -- Warden's Court of Queensland 10 July 2000 Mulgrave Holding. The miners and the landowners are therefore the same in each case. That part of ML 3004 that is located on Palmerville Holding is not part of this dete1mination. There was no appearance or submission on behalf of the landowners. This determination will therefore be based on my knowledge of the area, the methods adopted by alluvial gold miners in this District, the submissions of the miner through Mrs Donovan, and some factual data supplied by the Registrar through an extract of official lease records held at the Registrars office. In relation to ML 3003, the area involved, that is, the area of the lease on Mount Mulgrave Holding, according to the Registrars records, is 46.2818 hectares. For the purpose of this determination, that area is rounded off to 47 hectares. In relation to Mining Lease 3004, the area involved on Mount Mulgrave Holding, according to the Registrar's official records, is 103.12 hectares. Of this area, only 53.82 hectares is situated on Mount Mulgrave Holding. For the purpose of this determination, that area is rounded off to 54 hectares. The renewal of these leases cannot proceed until the parties settle on the amount of compensation to be paid, or, in the absence of any settlement, this Court (s281 (3) and (4)) determines the matter of compensation. The applicant miner states, and copies of correspondence confirm that compensation agreements were foiwarded to the landowners and returned with only two signatures. Unless a registered power of attorney is produced, or the documents are signed under company seal, those two signatures cannot give legality to the agreement. The fact that an agreement was tendered and signed by some of the parties does not bind this Court or preclude this Court from arriving at its own determination which may or may not support any purported agreement. Legally, the parties have not produced a binding agreement, ·and therefore technically the parties have failed to reach any agreement in relation to compensation. In such cases the Court is empowered under Section 281 of the Mineral Resources Act to determine compensation, and the terms, conditions and times when payment shall be made. 3003CMP.MAR 2 -- 2 of 6 -- Warden's Court of Queensland 10 July 2000 An inspection of the actual leases was not conducted. However, I was in the general area prior to the date of hearing and gained a general impression of the general nature of the terrain in the area of the leases. It appears the landowners conduct a grazing business on the property, but no livestock were sighted while I was is the area. The area in which the leases are situated is generally rough and isolated. Entry into such areas is usually through access roads constructed by the miners as part of their mining operation. The method of mining to be adopted by the miner is similar to other operations conducted in this general area. A mobile plant will be used. When one area is worked through, the plant is moved to a new site and re-established. Mining then re-commences. One governing factor of significance is the distance that material is required to be hauled. Thus the mining and the plant move progressively up or do\Vll the creek, rehabilitating as the plant moves from site to site. Under the EMOS, only a small area is permitted to be disturbed and rehabilitated at any time. As the mining is confined to the alluvial material in the creek, the balance of the lease area is left undisturbed by mining and is available for grazing. It is the practice, and it is not necessary in this area in my opinion, to fence off lease areas. Cattle are therefore not restricted and are. able to graze at will over any part of the lease. It is estimated that perhaps only 10 percent or 20 percent of the surface of the lease area, being the alluvial material in the creek, is disturbed by mmmg. At this point in time, the miner indicates that Mining Lease 3004 is about to be worked, and ML 3003 will be held as mining reserves and worked later when required. In her submission, Mrs Donovan pointed out that mining will take place from bank to bank only, that the land is marginal grazing land, that stock will have unrestricted access to the lease areas not being actually worked, that mostly only unbranded stock have been sighted, and outside the creek bed, the country consists of steep sided hills. It is generally accepted that access to these remote parts is provided by the access roads made by the miners, and watering points in the form of small catchment dams are usually left for use of the property owner unless there is a request to breach the wall. 3003CMP.MAR 3 -- 3 of 6 -- - ------- Warden's Court of Queensland 10 July2000 It appears that the land has a highest value as grazing land under favourable conditions. However, the terrain is generally rough and in-accessible except where the miners have constructed access roads. On lease areas, most access roads are constructed in the bed of the creek or gully. The result is that such roads are washed away each wet season, and are then re- established at the commencement of mining after the "wet" has ended and flood water has subsided. I take into account all those factors mentioned above and that apart from the area of about three hectares that will be disturbed by mining and the establishment of the plant site, the balance of the lease will remain undisturbed. ML 3003 will remain unworked and undisturbed until mining on ML 3004 is completed. Two recent appeal decisions from the Land Court have considered compensation provisions of the Mineral Resources Act 1989. Mitchell v Oakhill (10 March 1998, not reported) and Zimmerebener v Hawkins & Ors (30 March 1999 not reported) are of assistance, although there are some significant differences. In Mitchell, the Court concluded that as long as the amount of. compensation finally determined accounts for each of the entitlements referred to in the subsection, it is not necessary to quantify an amount in respect of each of the matters. In Zimmerebner, the Court held that: " ... it must assess total compensation as at the relevant date, ie the date of the grant of the mining lease. Then, having regard to the circumstance of the particular case, it can impose terms, conditions and times when payments shall be made. There seems to be no limit on that discretion, provided the court determines the amount of compensation. Therefore, there would not seem to be any prohibition on awarding part of the compensation upon the happening of an event, such a.s the commencement of mining. In this instance I am of the opinion that "renewal" equates with "grant"." We do not have any valuations to consider as evidence. No matter was raised which would necessitate consideration under subsection (4) of Section 281. Disturbance to the operations of the landowner would appear to be minimal. There is the factor that until mining is completed or the lease expires or is terminated, a mining tenure will exist on this property. 3003Cl\1P .MAR 4 -- 4 of 6 -- Warden's Court of Queensland 10 July2000 Taking all the circumstances into account, I am satisfied that a "tiered" order is best suited for the parties in this particular situation. The order will be structured to take into account the method of mining, the areas involved, the limited period of disturbance and the term of the renewal. I take into account that for the first term of the leases, no mining has taken place. There has been no submission from the landowners in relation to the terms, conditions and times when payments shall be made. The miner seeks an order for yearly payments. This is because the nature of the operation may change suddenly with termination or forfeiture a real possibility. The landowners appear to prefer a once only sump sum payment for the term of the lease. While there is some merit in each preferred approach to this issue, each case is different and must considered on its own merits. The unusual circumstances of this matter require that the order be structured in a way that I think best suits the circumstances. Taking into account all those matters that must be considered under the provisions of section 281 (3) and (4) of the MRA, I assess compensation for each lease and access thereto as hereunder and make the following orders in relation to the terms, conditions and times when payments shall be made. In respect of Mining Lease 3003 - (a) From 1 July 2000, until the commencement of mining, the sum of $1.00 per hectare per year, payable within 60 days of advice of renewal, and yearly in advance thereafter on the anniversary of the renewal date. (b) In addition to the sum payable under clause (a) the further sum of $60.00 per year in respect of the area disturbed under the EMOS while mining is being conducted or rehabilitation remains outstanding. (c) When mining and rehabilitation has been completed and until expiration, forfeiture or abandonment of the lease, the sum of $1.00 per hectare per annum, paid yearly in advance on the anniversary of the renewal date. I make no order in respect of arrears of compensation for that part of the renewal term that has already expired__, ie 1/7/99 to 30/6/2000. 3003CMP.MAR 5 -- 5 of 6 -- Warden's Court of Queensland 10 July 2000 In respect of Mining Lease 3004 - d) From the date of renewal (01/07/2000) to the commencement of mining, the sum of $1.00 per hectare per year, payable within 60 days of advice of renewal, and yearly in advance thereafter on the anniversary of such date of renewal: e) In addition to the sum payable under (d) above, the sum of $60.00 per year in respect of the area disturbed under the EMOS while mining is being conducted or rehabilitation remains outstanding; f) After mining and rehabilitation has been completed and until expiration, forfeiture or abandonment of the lease, the sum of $1.00 per hectare per year payable yearly in advance and thereafter on the anniversary of such date. In the event of any dispute in relation to the orders above, the parties are granted liberty to apply to the Wardens Court on the giving of 14 days notice. Being an award of the Court a goods and services tax levy is not payable by the miner. It is directed that the Registrar at Mareeba release this determination to the parties at the earliest practicable date due to the limited time available to lodge any appeal. Dated at Brisbane this 10th day of July 2000. F W WINDRIDGE, SM MINING WARDEN ©2000 3003CMP.MAR 6 -- 6 of 6 --