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- Unreported Judgment
Tempo 3 Pty Ltd v Gummi Junga Aboriginal Corporation QLC 34
LAND COURT OF QUEENSLAND
Tempo 3 Pty Ltd v Gummi Junga Aboriginal Corporation  QLC 34
Tempo 3 Pty Ltd
Gummi Junga Aboriginal Corporation
Determination of compensation payable for renewal of mining lease
29 September 2021
Submissions closed on 10 September 2021
Matter allocated on 24 September 2021
Heard on the papers
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the respondent had difficulties in participating in the directions hearing and reviews – where the Court and applicant were sympathetic to the respondent’s difficulties – where the concerns of the landowner were taken into account – where compensation is only claimed for deprivation of possession of the surface of the land of the owner pursuant to s 281(3)(a)(i) of the Mineral Resources Act 1989 (Qld) – where the Court cannot determine ‘conduct’ conditions but it is expected that Tempo 3 would honour their commitment – where compensation was determined
Mineral Resources Act 1989 s 281(3)(a)(i)
- Mining Lease (ML) 3085, is one of two MLs and one mining claim which are worked by Tempo 3 to mine alluvial gold. They are a ‘one-man operation’ with additional personnel employed as required. Tempo 3 has applied to renew ML 3085 for 10 years. For the renewal to be granted, compensation between Tempo 3 and the owner of the land must be agreed or be determined by the Land Court.
- Compensation was not agreed. Tempo 3 filed an Originating Application in the Land Court on 12 May 2020 to have the Land Court determine the amount of compensation. The application identified the landholder as the Gummi Junga Aboriginal Corporation (the Corporation) of Bonny Glen Station, Lakeland Downs.
- A directions hearing and a number of review hearings were convened to discuss with the parties how the matter might proceed. Information from Tempo 3 had alerted the Court to some challenges the Corporation was experiencing. A representative of the Corporation participated in two of the review hearings. Without fully describing those challenges here, they concerned difficulties in engaging with new or replacement corporation office bearers, and the impact of ‘sorry business’ on decision making. The Court and the applicant were sympathetic to the situation which saw little progress in the matter for many months. Ultimately, orders were made for material to be filed to enable to Court to determine the amount of compensation.
- The mining lease is on Ten Mile Creek, Bonny Glen Station, approximately 40 km south-west of Lakeland and 65 km north-west of Mt Carbine, in North Queensland. A map included in Tempo 3’s supporting documents shows the lease area which straddles the creek for some distance.
- The Resource Authority Public Report indicated the area of ML 3085 to be 166.9 ha. While the tenement is also granted with a special condition for tourism purposes, the Mining Program says, “… to date, Tempo 3 has not begun tourist tours over the lease area.”
- According to the Mining Program, the lease is worked on a seasonal basis during the ‘dry’ season. It says that the sole Director of Tempo 3, Mr Stephens, is only able to be on site for approximately 3 months each year. The activities are carried out using a “mobile shaker plant to mine for alluvial gold throughout the creek system and can process 120-150 m3/day.” On average gold has been found at 1 oz/100 m3. Tempo 3 says that the remainder of the river system can be processed during the requested 10 year renewal period.
- In its Technical Capability Statement, Tempo 3 says the equipment currently available includes a mobile shaker and sluice, excavator, D8 bulldozer, truck, 4WD and camp facilities, and that additional machinery and equipment will be hired or contracted as required.
- In compliance with orders made 13 August 2021, Tempo 3 filed a compensation statement. Although orders were made for the Corporation to file material in response to the information concerning compensation contained in the Originating Application, no material was filed. Accordingly, I have only the submissions of Tempo 3 concerning the content of negotiations regarding compensation.
- That information in the Compensation Statement filed 14 September 2021 includes a statement that “the most recent concerns of the landowner have been with regards to the monetary aspects of the compensation agreement,” and that in June 2021, “an amended proposal was forwarded to the landholder with an increased amount of compensation,” however no response was received in relation to the new proposal.
- There are two documents which concern the proposed compensation agreement. The first is a draft document headed “Compensation Agreement” which I understand to have been prepared on or about 6 May 2020, and the other is an email dated 22 June 2021 on behalf of Tempo 3 to the representative of the Corporation. The 22 June 2021 email outlines Tempo 3’s understanding of the financial compensation sought by the Corporation and modifies Tempo 3’s offer of compensation.
- Neither the Compensation Agreement nor the email specify the basis upon which compensation is claimed or offered. That is, neither reference the criteria in s 281 of the Mineral Resources Act 1989 (Qld) (MRA) which the Land Court must consider. Based as it is on a claim and offer on a dollar per square metre rate, it suggests compensation is for (only) s 281(3)(a)(i) of the MRA, being deprivation of possession of the surface of the land of the owner.
- The Compensation Agreement included a number of other terms concerning the behaviour of Tempo 3 in entering the land and conducting their activities. Terms such as these are generally referred to as ‘conduct’ conditions. In determining compensation I do not have the power to make orders in regard to conduct however, it would be expected that having made the offer Tempo 3 would honour that commitment should the lease renewal be granted.
- There is no evidence before me which enables me to assess compensation for any of the other heads of compensation in s 281 of the MRA, except for uplift. That is, pursuant to s 281(4)(e) of the MRA, where an additional amount of not less than 10% shall be determined to reflect the compulsory nature of action taken.
- It seems that the Corporation sought an amount of $10/ha for the total area. The total area is currently 166.9 ha. The correspondence does not enlighten me as to whether the $10/ha is claimed as an annual payment or whether it represents a total amount.
- Tempo 3 offered $500/year, an offer increased to $750/year for the total area. Should the lease run its full term, Tempo 3 would be liable for $7,500.
- Structured as an annual payment suggests to me that Tempo 3 considered the Corporation’s claim of $10/ha to be an annual as opposed to a one off payment, that is $1,669/year (or $16,690 should the lease run its full term).
- This conclusion is supported by the alternative proposition put by Tempo 3 in the 22 June 2021 email, that “if unable to compromise… will look at reducing the total area of the lease down to just the area left to mine, and will be then happy to pay the proposed $10/ha – totalling approx. $400/yr.”
- Tempo 3 maintains in the 22 June 2021 email that Tempo 3 “only has approx… 30-40ha… left to mine”, that is, of the 166.9 ha lease.
- It seems agreed between the parties that the per hectare value of the land for the purposes of s 281(3)(a)(i) of the MRA is in the order of $10 per hectare. I have no evidence before me to support or reject that assessment. On the basis of other recent decisions of this Court, $10 per hectare is not an unrealistic assessment.
- Compensation is being determined for the renewal of the mining lease, and the criteria concern the activities to be carried out should the renewal be granted. The evidence indicates that rehabilitation has occurred progressively. That would suggest that in relation to the areas that have been mined, there is no continuing deprivation of possession of the surface of the Corporation’s land. The land to be worked and progressively rehabilitated is limited to 30-40 ha.
- Nevertheless, if the mining lease is renewed Tempo 3 will have rights and obligations in relation to the whole of the lease area. There is limited evidence before me concerning access to ML 3085. An owner is entitled to compensation for any surface rights of access, and all loss or expense that arises.
- A map included with the Resource Authority Public Report has marked “Access Road” which appears to follow the watercourse south to Maitland Downs before leaving Bonny Glen and joining the Mulligan Highway. While I am unable to quantify the area and have no evidence to assist me in determining what, if any loss or expense might arise, I am inclined to determine compensation collectively at the more generous offer made by Tempo 3. That is, $750/year to take account of the variables identified in these reasons. I have in determining this amount, taken into account the fact that the tenement applied for is a renewal.
- I determine that Tempo 3 must pay Gummi Junga Aboriginal Corporation compensation in respect of the grant of the renewal of ML 3085, seven hundred and fifty dollars ($750) per year for the term of the renewal.
- The applicant must pay the amount set out in order 1 within 1 month of the grant of the renewal of ML 3085 by the Department of Resources, and then annually on the anniversary of the grant of the renewal of ML 3085 by the Department of Resources.
- Published Case Name:
Tempo 3 Pty Ltd v Gummi Junga Aboriginal Corporation
- Shortened Case Name:
Tempo 3 Pty Ltd v Gummi Junga Aboriginal Corporation
 QLC 34
29 Sep 2021