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- Unreported Judgment
Wellington Mining & Exploration Pty Ltd v Struber QLC 50
LAND COURT OF QUEENSLAND
Wellington Mining & Exploration Pty Ltd v Struber & Anor  QLC 50
Wellington Mining & Exploration Pty Ltd
Stephen Roy Struber
Dianne Rose Wilson-Struber
Application for review of compensation for mining lease
20 December 2018
Submissions closed 6 December 2018
On the papers
MINING – MINING LEASE – COMPENSATION – material change in circumstances – applicant’s right to have compensation reviewed – s 283B triggered – jurisdiction of Land Court – reassessment of compensation – original decision varied
Mineral Resources Act 1989 s 281(3)(a), s 363, s 238B
Public Trustee Act 1978 Part 7, s 90, 91, 94.
Aurum Vale Pty Ltd v Struber & Anor  QLC 19, applied
ERO Georgetown Gold Operations Pty Ltd v Henry  QLAC 4, followed
Fitzgerald & Anor v Struber & Anor  QLC 0076, applied
Fitzgerald v Struber  QLC 20, applied
Fitzgerald v Struber & Anor  QLC 18, applied
Henry v ERO Georgetown Gold Operations Pty Ltd  QLC 13, applied
Hicks & Anor v Graham & Anor  QLRT 47, applied
Markert v Struber & Anor  QLC 44, applied
North Queensland Mining Pty Ltd v Struber & Anor  QLC 4, varied
Pavey & Anor v Struber & Anor  QLC 24, applied
Plethora Pty Ltd v Struber & Anor  QLC 26, applied
- By originating application filed on 5 October 2018 the applicant, Wellington Mining & Exploration Pty Ltd seeks to vary a determination by this Court of compensation for mining activity upon Palmerville Station as a consequence of the grant of ML 100018. The subject land is located within the Cook Shire local government area and is used for grazing purposes.
- Pursuant to the Mineral Resources Act 1989 (MRA), this Court on 29 January 2016 determined that compensation be assessed in respect of the issue of ML 100018 at an annual rate of $10/ha for the relevant 266 ha area. In addition to this, a further sum of $290 was added in respect of the compulsory nature of the grant pursuant to s 281(4)(e) of the MRA, giving a total annual amount of compensation of $2950 per annum.
- On 29 February 2016 ML 100018 was granted to North Queensland Mining Pty Ltd for an initial term of 10 years commencing on 1 March 2016. On 26 June 2018 a
100 % interest in ML 100018 was transferred to the current holder, Wellington Mining & Exploration Pty Ltd.
- A Resource Authority public report dated 13 November 2018 and filed 19 November 2018 indicates that a partial surrender of ML 100018 was completed on 21 June 2018. As a consequence, the area of the tenure was reduced to a remaining area of 43.71 ha. This reduction in the relevant tenure area forms the basis upon which this application to review the existing compensation determination is sought.
- Although this application is described in the applicant’s submissions as a review of landholder compensation under s 363(2)(f) of the MRA, in my view it is necessary to also consider both s 238B and s 281 of the MRA when deciding this matter.
- Relevantly s 238B of the LVA provides:
“283B Review of compensation by Land Court
- (1)This section applies if —
- (a)compensation has been agreed under section 279 or 280 or
determined under section 281 or 282 for a mining lease (the original compensation); and
- (b)there has, since the agreement or determination, been a material change in circumstances for the mining lease.
Example of a material change in circumstances —
a different mining method that changes the impact of mining operations under the lease
- (2)The mining lease holder or any owner in relation to the mining lease mentioned in section 279(1)(a) or 280(1) may apply to the Land Court for it to review the original compensation.
- (3)Sections 281(3) to (7), 282 and 282A apply, with necessary changes, to the review as if it were an application under section 281(1).
- (4)The Land Court may, after conducting the review, decide to confirm the original compensation or amend it in a way the Land Court considers appropriate.
- (5)However, before making the decision, the Land Court must have regard to —
- (a)the original compensation, other than any part of it that consists of an additional amount under section 281(4)(e); and
- (b)whether the applicant has attempted to mediate or negotiate an amendment agreement for the original compensation; and
- (c)any change in the matters mentioned in section 281(3) and (4) since the original compensation was agreed or determined.
- (6)If the decision is to amend the original compensation, the original compensation, as amended under the decision, is for this Act, other than this section, taken to be the original compensation.”
- Section 281(3)(a) of the MRA identifies the matters to which a landowner is entitled to compensation. The relevant provisions of 281(3)(a) are:
- “(i)deprivation of possession of the surface of 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 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 application seeking the review of compensation is brought by the applicant under s 363(2)(f) of the MRA. The section is set out as follows:
“363 Substantive jurisdiction
- (1)The Land Court shall have jurisdiction to hear and determine actions, suits and proceedings arising in relation to prospecting, exploration or mining or to any permit, claim, licence or lease granted or issued under this Act or any other Act relating to mining.
- (2)Without limiting the generality of subsection (1), the Land Court shall have jurisdiction to hear and determine actions, suits and proceedings with respect to —
- (a)the right to possession of or other interest or share in any mining claim, exploration permit, mineral development licence or mining lease; and
- (b)the rights and entitlements to minerals mined under any mining tenement or other authority granted under this Act or any other Act relating to mining and to the products of mining; and
- (c)the area, dimensions and boundaries of land (including the surface area of land) the subject of a mining tenement; and
- (d)any encroachment or trespass upon or interference with or damage to land the subject of a prospecting permit, mining claim, exploration permit, mineral development licence, mining lease or other authority granted under this Act or the buildings, plant, machinery or equipment thereon; and
- (e)any matter arising between applicants or holders in relation to prospecting, exploring or mining, or arising between applicants or holders and owners of land in relation to prospecting, exploring or mining; and
- (ea)any dispute or other matter arising between persons identified in native title protection conditions as an explorer or as a native title party, if the conditions —
- (i)under section 25AA, are included in the conditions imposed on a prospecting permit; or
- (ii)under section 141AA, are included in the conditions determined for an exploration permit; or
- (iii)under section 194AAA, are included in the conditions determined for a mineral development licence; and
- (f)any determination or review of compensation as provided for under this Act or any other Act relating to mining; and
- (g)the enforcement of any agreement or determination as to compensation under this Act or any other Act relating to mining; and
- (h)any assessment of damage, injury or loss arising from activities purported to have been carried on under the authority of this Act or any other Act relating to mining; and
- (i)any application required by this Act or any Act relating to mining to be made or heard in the Land Court.
- (3)The Land Court also has jurisdiction to hear and determine actions, suits and proceedings with respect to any demand for debt or damages arising out of or made in respect of —
- (a)the carrying on of prospecting, exploring or mining;
- (b)any agreement relating to prospecting, exploring or mining.
- (4)This section does not confer jurisdiction on the Land Court in relation to the recovery of wages or amounts owing under an industrial award or agreement.”
The conduct of the proceedings and evidence
- On 16 October 2018 the following Orders were made for ongoing conduct of this matter:
- The applicant must serve the originating application on the respondents and file an affidavit of service in the Land Court Registry, by 4pm, Thursday 25 October 2018.
- By 4pm, Thursday 1 November 2018, the applicant must file in the Land Court Registry and serve on the respondents a compensation statement in accordance with Land Court Practice Direction 1 of 2017.
- By 4pm, Thursday 15 November 2018, the respondents must file in the Land Court Registry and serve on the applicant a statement of facts, matters and contentions in response to the compensation statement.
- By 4pm, Thursday 22 November 2018, the applicant must file in the Land Court Registry and serve on the respondents a statement of facts, matters and contentions in reply, if any.
- Unless the parties otherwise request in writing, the case will be determined on the filed material, without an oral hearing.
- On 19 November 2018 the preceding orders were varied. Order 3 was varied by deleting 15 November 2018 and inserting 29 November 2018 and Order 4 varied by deleting 22 November 2018 and inserting 6 December 2018.
- The materials relied upon by the applicant were filed in the Land Court registry on 19 November 2018 and included background details, a compensation statement, mapping, imagery, a resource authority report for ML 100018 and a copy of the judgment which determined the original compensation for the issue of ML 100018 on 29 January 2016.
- The primary contention on behalf of the applicant is that the original compensation determined on 26 January 2016 was based on a tenure area of 266 ha, whereas the tenure area has been reduced to 43.71 ha from 21 June 2018. The resolution suggested on behalf of the applicant involves applying the same rate as determined by the Court and applying that rate over the new tenure area i.e. the applicant proposes compensation be reviewed and determined at $484 per annum on the following basis:
“44 ha @ $10/ha = $440.00 + $44.00 (10% under s 281 (4)(e) = $484.00/annum”
Conclusions in relation to the filed submissions
- The evidence and submissions filed by the applicant, although quite comprehensive, do not detail any case law or legal principles that might be applicable to the present circumstances. Put simply, the application seeks that the existing determination be reduced on a pro-rata basis to correspond with the reduction in the mining area of ML 100018 following the partial surrender of that tenure.
- No evidence, related materials, or any submissions have been provided to the Court by, or on behalf of, the respondents.
A review pursuant to s 283B MRA
- As already noted, this application although commenced pursuant to s 363(2)(f) of the MRA, must be reviewed “as provided for” by s 283B of the MRA. A review pursuant 283B will only arise “…if compensation has been agreed or determined under the MRA and, subsequently, there has been a material change in the circumstances for the mining lease” i.e. although the application is in effect unopposed, these jurisdictional facts must nonetheless be established to found the Court’s jurisdiction to undertake a review pursuant to s 283B of the MRA.
- On the evidence filed by the applicant, a “determination” as envisaged by s 283B is undoubtedly established by the Land Court decision of 29 January 2016. Therefore, the question of whether there is a material change in the circumstances for ML 100018 now becomes the only remaining factor necessary to establish the Court’s jurisdiction pursuant to s 283B.
Has there been a material change in circumstances?
- The interpretation of material change in circumstances in the context of s 283B of the MRA has been considered most recently by the Land Appeal Court in ERO Georgetown Gold Operations Pty Ltd v Henry, where the following observations regarding the inquiry to be undertaken were made:
“It is self-evident from the language of s 283B(1)(b), that a comparison between two sets of circumstances is required. One set, inevitably, comprises the circumstance at the time when compensation was originally agreed or determined. Plainly enough, the second is that prevailing when it is alleged that the circumstances have changed. The expression “a material change in circumstances for the mining lease” might be further analysed in a number of ways. It is enough to note that the condition is satisfied when there is a material difference between the circumstances for the mining lease when the compensation was originally agreed or determined, and the circumstances for the mining lease at the date when the change is said to have occurred, the change relating to circumstances relevant to the agreement about or determination of compensation.”
- A comparison of the two sets of circumstances reveals that when compensation was initially determined the surface area of ML 100018 was originally 266 ha, whereas the current area of ML 100018 is now 43.71 ha following the finalisation of the partial surrender of the tenure on 21 June 2018. This is a substantial reduction in area.
- Given that the original determination was undertaken on the basis of a rate of $10 per ha per annum applied uniformly over the total area of the tenure, this substantial reduction in the relevant tenure area of ML 100018 is clearly relevant to the determination of compensation, and in my view constitutes a material change in circumstances. On this basis, I am satisfied that the Court’s jurisdiction to undertake a review of determination of compensation pursuant to s 283B is established.
- Prior to deciding this review application, s 283B(5) requires that this Court have regard to the original compensation, whether the applicant has attempted to negotiate an amendment agreement for the original compensation, and also, any change in matters mentioned in s 281(3) and 281(4) of the MRA since the original compensation was agreed or determined.
- I have had regard to the original compensation, which I should record was a determination undertaken by myself with judgment and formal orders being finalised on 29 January 2016.
- It is unclear whether the applicant has attempted to mediate or negotiate an amendment agreement for the original compensation, however, as both respondents are presently incarcerated, and given that all materials have also been provided to the Public Trustee and no response received, the application is in effect unopposed. In the circumstances I intend to consider the application on the materials received from the applicant.
- The reduction in the relevant area of ML 100018 to 43.71 ha following the partial surrender on 21 June 2018 has been fully considered in light of the factors mentioned in s 281(3) and (4) of the MRA.
- In light of the preceding matters I consider that the application should be granted and that a pro-rata reduction in compensation which corresponds with the reduction in the area of ML 100018 should be made. This approach is appropriate and consistent with the approach taken in determining the original compensation i.e. a rate per ha applied consistently across the relevant area of the tenure.
- I consider that a rate of $10 per ha per annum should be adopted in relation to the remaining area of ML 100018 being 43.71 ha, but rounded to 44 ha for calculation purposes. In deciding upon this rate the Court has limited options other than to be guided by recent Court determinations of compensation in respect of mining activities on Palmerville Station or within the Mareeba mining district given the absence of valuation or other expert evidence. This approach also adopted when the original compensation was determined.
- In adopting this approach consideration has been given to recent Land Court determinations concerning mining activity on Palmerville Station. These determinations, which have be guided by the earlier determination of Fitzgerald & Anor v Struber & Anor  have resolved compensation in respect of mining leases on the subject land at the rate of $10 per hectare per annum.
- Accordingly, after consideration of these determinations, and in light of the material change in circumstances concerning ML 100018, I am of the view that the total original compensation of $2950 per annum should be reduced to $484 per annum based upon the remaining ML 100018 area of 43.71 ha (rounded up to 44 ha). The reviewed compensation assessment is set out as follows:
Area of ML 100018 after partial surrender = 44ha @ $10/ha = $440 per annum
Add s 281(4)(e) for the compulsory nature of the grant = $ 44 per annum
Total = $484 per annum
- Given the material change in circumstances was effected by the completion of the voluntary surrender on 21 June 2018, the alteration of compensation is to take effect from this date and any pro-rata liability as between the parties should be apportioned with reference to this date.
- In light of the respondents present incarceration I intend to order that the reviewed compensation be paid to the Public Trustee of Queensland.
- That the Orders this Honourable Court dated 29 January 2016 in relation to ML 100018 be discharged and compensation determined as and from 21 June 2018 at $484 per annum.
- The miner pay compensation to the Public Trustee of Queensland on behalf of the landowners in the amount set out in Order 1 herein.
- The applicant is to notify the Department of Natural Resources, Mines and Energy of the variation in compensation within one week of these orders.
JUDICIAL REGISTRAR OF THE LAND COURT
North Queensland Mining Pty Ltd v Struber & Anor  QLC 4.
 Applicant’s submissions filed 19 November 2018, p 1 of 3, para 1.2.
Hicks & Anor v Graham & Anor  QLRT 47 at .
North Queensland Mining Pty Ltd v Struber & Anor  QLC 4.
  QLAC 4.
ERO Georgetown Gold Operations Pty Ltd v Henry  QALC 4, .
Henry v ERO Georgetown Gold Operations Pty Ltd  QLC 13, .
North Queensland Mining Pty Ltd v Struber & Anor  QLC 4.
Public Trustee Act 1978 ss 90, 91 & 94.
Fitzgerald & Anor v Struber & Anor  QLC 0076; Fitzgerald v Struber  QLC 20.
Fitzgerald v Struber & Anor  QLC 18 Aurum Vale Pty Ltd v Struber & Anor  QLC 19 Pavey & Anor v Struber & Anor  QLC 24; Plethora Pty Ltd v Struber & Anor  QLC 26; Markert v Struber & Anor  QLC 44
  QLC 0076.
Public Trustee Act 1978 Part 7.
- Published Case Name:
Wellington Mining & Exploration Pty Ltd v Stephen Roy Struber and Dianne Rose Wilson-Struber
- Shortened Case Name:
Wellington Mining & Exploration Pty Ltd v Struber
 QLC 50
20 Dec 2018