Bonney v Wilson & Ors [1998] QMW 20

AMENDED DETERMINATION OF COMPENSATION PURSUANT TO SECTION 281 OF THE MINERAL RESOURCES ACT 1989 BEFORE: A.J.CHILCOTT, ACTING MINING WARDEN. IN THE MATTER OF: DETERMINATION OF COMPENSATION IN RESPECT OF MINING LEASE 20168 IN THE MAREEBA MINING DISTRICT APPLICANT/MINER: RUSSELL KEITH BONNEY LESTER DAVID BONNEY IRENE MAUD BONNEY RESPONDENT/ LANDOWNER: DORIS MARY WILSON EV AHLERS, NP, CS, BJ & KV HUGHES DETERMINATION This lease was granted by the Governor in Council on 25 January 1995. An application for renewal of the mining lease for 5 years was lodged at the Mining Registrars Office Mareeba on 31 July 1996. A compensation agreement not having been lodged in respect of the renewal of the lease, the applicants have requested that the matter of compensation be determined by the Court. Notice [1998] QMW 20 -- 1 of 6 -- 2 was given to both the Applicant miners and the landowners that the matter was to be heard in the Wardens Court Mareeba on 3 July 1997. There were no appearances by or on behalf of the applicants or the owners on 3 July 1997. This application for determination is brought under Section 281 of the Mineral Resources Act. Matters which must be considered are set forth in section 281 (3) & (4) of the act. Section 281(3) of the act provides that the Wardens Court shall settle the amount of compensation an owner of land is entitled to as compensation for: (1) deprivation of possession of the surface land of the owner; (ii) diminution of the value of the land of the owner or 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 -- 2 of 6 -- 3 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. The only material before the Court is the departmental file relating to the Mining Lease application. The record indicates that the holders will, under the proposed mining operation, mine for alluvial and eluvial gold on 11.1 hectares of land associated with an unnamed gully joining Limestone Creek on Palmerville Holding. Material will be excavated and taken off site for processing. The land will not be used for a camp site or plant site. Part of the access route applied for traverses Palmerville Holding. A report and photographs placed on file by a Departmental officer indicates that there is evidence of old pot-hole workings on the hill slopes which have a reasonable covering of grasses for that particular area. There is also an area of 1.83 hectares required for access which relates to the Groganville Holding. For the purposes of this determination, the area shall be rounded off to 11.0 hectares and 2.0 hectares respectively. -- 3 of 6 -- 4 Apart from the matters referred to above, there is no evidence in support of the headings of compensation contained in Section 281 of the Mineral Resources Act 1989, nor has there been any matter which would necessitate consideration under subsection (4),a,c or d, of section 281 of the act. I take the view that the owner anticipates little or no loss from any occurrence of the kind mentioned in section 281 resulting from the proposed mining operation. In my opinion, the value which should be placed on compensation under the heads of claim allowed under the Act, after giving consideration as the evidence permits to all matters referred to in section 281, including the compulsory nature of the taking for a term of 5 years (or less if surrendered, cancelled, or forfeited earlier) should be a nominal amount. In making the determination and order in relation to terms, conditions and times when payments aggregating the total compensation payable shall be payable, I take into account: (a) that the only suitable and likely alternative use of the land (apart from mining) appears to be cattle grazing: (b) that deprivation of possession of the surface of the land -- 4 of 6 -- 5 applied for is not likely, in view of the current and likely use the owner puts the land, to result in significant loss of profit, other loss or expense, or diminution of the value of the land of the owner or any improvements thereon: and (c) that there is unlikely to be any severance of the owners land or any other significant disturbance to the owners enjoyment, or activities on, the land or in relation to improvements on that land, caused by the holders proposed mining operation (including access taken over the owners land). I DETERMINE, after taking into account an additional amount of ten percent of the aggregate amount determined under all heads of compensation to reflect the compulsory nature of the action under Part 7 of the Mineral Resources Act, the amount of compensation to be paid or tendered by the holders to the owner of Palmerville Holding and to the owners of Groganville Holding to satisfy all heads of compensation set forth in paragraphs (i) to (vi) inclusive of Section 281(3) of the Mineral Resources act 1989 shall be, $5.00 per annum (or part thereof) for every hectare (or part thereof) of the surface of the land: There being no submission from either party in relation to the times, terms or manner of payment, I determine that due to the -- 5 of 6 -- 6 small area involved and the short term of the lease, payment of compensation be by way of a lump sum payment in the sum of $275.00 in respect of Palmerville Holding and a lump sum payment in the sum of $50.00 in respect of Groganville Holding within 30 days of the date of this determination. Dated at BRISBANE this 13th day of February 1998. A J CHILCOTT ACTING MINING WARDEN -- 6 of 6 --