Walker v Cook Shire Council[2015] QLC 19

LAND COURT OF QUEENSLAND

1. [1]
   This matter involves a referral to the Land Court pursuant to s 279(5) of the Mineral Resources Act 1989 (MRA) for the determination of compensation in respect of the grant of a mining lease.

Background

2. [2]
   On 23 December 2009, Donald Robin Walker (the miner) applied for the issue of Mining Lease 20654 over land located approximately 100 km west south-west of Laura in the Mareeba District and within the Cook Shire local government area.  The term applied for is 20 years.  The purpose of the lease is for the mining of gold, silver, garnet, ilmenite, platinum, rare earths, rutile, xenotime and zircon.
3. [3]
   Mapping data provided by the Department of Natural Resources and Mines (DNRM) indicates that 5.85 ha of ML 20654 is located within a road reserve under the control of the Cook Shire Council (the respondent). 

Relevant Legislation

4. [4]
   Section 279 of the MRA provides that a mining lease shall not be granted or renewed unless an agreement in relation to compensation has been filed or, in the absence of such an agreement, a determination of compensation has been made by the Land Court.  In this matter, no agreement has been lodged with the Department of Natural Resources and Mines (DNRM) and the matter has been referred to the Land Court for determination.
5. [5]
   Section 281 of the MRA identifies the matters which must be considered by the Court when determining compensation.  In particular, s 281(3)(a) provides that an owner of land is entitled to compensation for:

1. “(i)
   deprivation of possession of the surface of land of the owner;

1. (ii)
   diminution of the value of the land of the owner or any improvements thereon;

1. (iii)
   diminution of the use made or which may be made of the land of the owner or any   improvements thereon;

1. (iv)
   severance of any part of the land from other parts thereof or from other land of the owner;

1. (v)
   any surface rights of access;

1. (vi)
   all loss or expense that arises;

as a consequence of the grant or renewal of the mining lease”.

6. [6]
   Section 281(4) enables various additional factors to be included in the compensation determination. In the present case, only paragraph (e) is relevant. It provides as follows:

1. “(4)
   In assessing the amount of compensation payable under subsection (3) - 

….

1. (e)
   an additional amount shall be determined to reflect the compulsory nature of action taken under this part which amount … shall be not less than 10% of the aggregate amount determined under subsection (3).”

The Conduct of the Proceedings and Evidence

7. [7]
   On 22 January 2015, the Land Court registry wrote to the parties setting out a timetable for the delivery of materials and submissions in accordance with Land Court Practice Direction No 5 of 2013. Neither party responded or submitted any material to the Court.
8. [8]
   In the absence of any material from the parties, the determination of compensation can be quite challenging.  In Unimin Australia Limited v Freeman,^[1] Member Jones [as he then was] noted as follows:

“I realise that my determination of compensation in this case is the result of little more than calculated guesswork or speculation. However, in circumstances where the parties have elected to provide little or no material to the Court concerning their position about compensation there is not much more that the Court can do.”

9. [9]
   Be that as it may several Court judgments in the North Queensland area will assist with determining compensation in the present case, with such determinations in the Mareeba District ranging from $5 per hectare per year to $15 per hectare per year^[2].  In the recent case of Eacham Abrasive Blasting Pty Ltd v Gundersen & Anor^[3], Member Smith allowed the sum of $10 per hectare per year for the area covered by mining and $5 per hectare per year for access in respect of a renewal of a mining lease in the Mareeba District. 

Determination

10. [10]
    The mapping information provided by DNRM confirms that 5.85 ha of ML 20654 is located within a road reserve under the control of the Cook Shire Council (the respondent).  No question arises in this case regarding the issue of access.
11. [11]
    Having considered the limited material and the relevant Court determinations cited above, and taking all heads of compensation set out in s 281(3) MRA into account, I assess compensation for Mining Lease 20654 at $10 per hectare per annum, which results in a total annual sum of $58.50.
12. [12]
    Applying this annual amount over the term of the mining lease (i.e. 20 years) amounts to a total compensation of $ 1170.00.
13. [13]
    Pursuant to Section 281(4)(e) of the MRA, I will add an additional sum of $120.00 to reflect the compulsory nature of the grant of the mining lease.
14. [14]
    This results in total compensation for the entire period of the mining lease of $1290.00

Orders

1. Compensation is determined in the total sum of One Thousand Two Hundred and Ninety Dollars ($1,290.00).

2. The miner is to pay compensation to the respondent the amount set out in Order 1 hereof within three (3) months of the issue of Mining Lease 20654 by DNRM.

G.J. SMITH

JUDICIAL REGISTR