Lynch v Gummi Junga Aboriginal Corporation
[2022] QLC 18
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- Unreported Judgment
- Lynch v Gummi Junga Aboriginal Corporation[2022] QLC 18
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Lynch v Gummi Junga Aboriginal Corporation[2022] QLC 18
Lynch v Gummi Junga Aboriginal Corporation[2022] QLC 18
LAND COURT OF QUEENSLAND
CITATION: | Lynch v Gummi Junga Aboriginal Corporation [2022] QLC 18 |
PARTIES: | Kevin John Lynch (applicant) v Gummi Junga Aboriginal Corporation (respondent) |
FILE NO: | MRA047-22 |
PROCEEDING: | Determination of compensation payable for renewal of mining lease |
DELIVERED ON: | 31 October 2022 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 30 September 2022 |
HEARD AT: | On the papers |
MEMBER: | JR McNamara |
ORDERS: |
|
CATCHWORDS: | ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – COMPENSATION – where the applicant had applied for the renewal of a mining lease situated on the land of the respondent – whether and, if so, what compensation was payable under s 281 of the Mineral Resources Act 1989 Mineral Resources Act 1989 s 281 Tempo 3 v Gummi Junga Aboriginal Corporation [2021] QLC 34, considered |
APPEARANCES: | Not applicable |
- [1]Kevin Lynch, an alluvial gold miner, holds Mining Lease 20609 (the Lease). The Lease was due to expire on 30 June 2020. Mr Lynch has applied for a 10 year renewal. The Lease is on Bonny Glen Station, and the Gummi Junga Aboriginal Corporation (GJAC) holds the Station lease.
- [2]Before the renewal can be granted compensation with the GJAC must be agreed or determined by the Land Court on the basis of the statutory criteria in the Mineral Resources Act 1989 (MRA). Compensation was not agreed, and for the reasons that follow I have determined that compensation is payable by Mr Lynch for the diminished use that the GJAC will have in the mining lease area.
The Lease
- [3]The 13.4 ha Lease straddles a creek bed on the 146,000 ha Bonny Glen Station. The Bonny Glen homestead is approximately 110 km from Cooktown.
- [4]The lease is approximately 31.5 km south of the homestead and is accessed by a 60 metre track from Whites Creek Road.
- [5]Mr Lynch describes the mining methodology as a one man operation with contractors engaged as required. His work program states: that mining is by way of a small semi-mobile plant site; material will be removed from the bed by backhoe in the dry season, stockpiled and processed in the wetter months; and the wash returned to the creek for rehabilitation purposes. His mining rate he estimates as 100 days a year. There is an established camp and a backhoe, wash plant, water pumps and a four wheel drive vehicle on site.
- [6]In response to orders for the filing and exchange of material the parties’ respective position on compensation is as follows.
Mr Lynch’s position
- [7]Mr Lynch is unaware of any current cattle enterprise operating on Bonny Glen Station. He says that if cattle were to be reintroduced there would be no impediment to them grazing the non-working areas of the Lease, noting that there is very little vegetation in the Lease area as it is over an alluvial channel. He sees no diminution in the value of the land due to the small scale operation and the ongoing rehabilitation, noting that there are no improvements in the area of the Lease; he sees no significant diminution in the use of the land as ‘the impact is relatively low and regrowth of vegetation in this region is prolific’; he says that there is no severance of the land; and although there may be a temporary loss of surface rights the area of the Lease was not being accessed for any purpose prior to grant and cattle and wildlife by their nature freely roam. He considers that there is no other additional basis for compensation as “the risk of matters to Biosecurity are low” and no additional expenses to GJAC for monitoring Mr Lynch’s movements.
- [8]Mr Lynch submits that compensation should be assessed for loss calculated on the surface area of the Lease, based on the State Valuation Service per hectare assessment of unimproved land value. Rounding the figures Mr Lynch proposes $135 pa.
The GJAC’s position
- [9]The GJAC filed a response statement, a Miners Compensation Agreement, and an Environmental Management Plan version dated 2 September 2022.
- [10]In the response statement, GJAC say that there is “currently and always ongoing grazing operations in place” and that they are currently planning future growth and development to expand GJAC business, including tourism and carbon farming projects. They say that engagement with Certified Environmental Specialists has assisted GJAC in developing an Environmental Management Plan.
The Miners Compensation Agreement
- [11]The Miners Compensation Agreement is a document generated by GJAC and the version provided has not been executed by either party. It is a detailed form of agreement which includes clauses addressing compensation, conduct, special conditions, indemnity, and dispute resolution.
- [12]The compensation clause provides for the miner, Mr Lynch, to pay annually $11,440. This represents a payment of $200 per week ($10,400 pa) together with GST ($1040). They say the amount “is based around the value of the land being based on cattle grazing at a low stocking carrying capacity, rather than the proposed mining, which is an intensive, high-value activity on small areas with a high level of impact”.
- [13]Other aspects of the agreement include a requirement for the miner to install and maintain fencing to exclude people and livestock from areas used for accommodation, equipment, storage, campsites, workshops, machinery sheds and the Activities (the activities that the miner is authorised to carry out under the tenement).
- [14]There are many clauses concerning conduct relating to for example firearms, speed limits, and waste management. Under the heading “Special conditions/other agreed terms” is listed Environmental Management Plan, Bio-Security Plan, Cultural Heritage Management Plan, Lessee’s Environmental Management Plan and associated reports triggered by that plan especially those relating to rehabilitation.
- [15]The matters in the Miners Compensation Agreement concerning conduct are not outcomes that I can order. The matters relating to compensation therefore concern what Mr Lynch describes as a loss of surface area, and what GJAC describe as the value of the land as a cattle enterprise.
The Environmental Management Plan
- [16]The purpose of the Environmental Management Plan (2 September 2022) (the Plan) is to set the framework for the procedures to be implemented to manage environmental activities on Bonny Glen Pastoral Holding, in full compliance with the environmental, quality, performance and sustainability outcomes.
- [17]The Plan was prepared by the GJAC Board of Directors for review and implementation by the Board of Directors. The Plan is said to “form part of the Miners and other stakeholders’ contract to comply with the requirements and obligations provided under this plan”. The version provided is unexecuted. The Plan says that the GJAC Board of Management has responsibility to, amongst other things, ensure that miners and other stakeholders are aware of the GJAC environmental policy and objectives, through conditions of contract and site environmental inductions as applicable. The Plan includes Standard Environmental Protocols for Identified Environmental Risks many of which appear to relate to the activities of miners. The protocols describe the objective, the management strategy and the action to be taken. Protocols relating to matters such as air quality, water quality, environment and sediment control, identify the relevant applicable policy (for example, the Environmental Protection (Air) Policy 2019 and the Environmental Protection (Water and Wetland Biodiversity) Policy 2019), permit regime (for example, the Nature Conservation (Protected Plants) Conservation Plan), and legislation (for example, the Land Protection (Pest and Stock Route Management) Act 2002 (Qld)).
- [18]It does not appear that Mr Lynch is a signatory to the Plan. Regardless, Mr Lynch is required to comply with all relevant and applicable land, resources and environmental legislation. Mr Lynch must also comply with the terms of grant of the Lease, and the terms and conditionsof the Environmental Authority. Matters concerning the relationship between Mr Lynch and GJAC and matters of conduct which are not directly related to compensation under s 281 of the MRA are not matters that I can address.
Issues
- [19]The statutory criteria are directed at any or all loss a landowner might suffer if they are deprived of the land, if their land is devalued, if their use of the land is diminished, if their land is severed, and for any loss and expense suffered as a result of the mining lease.
- [20]There is no evidence that the existence of this 10 year mining lease over 13.9 ha of a 146,000 ha property has resulted in a diminution in the value of Bonny Glen Station. There is no evidence that the existence of this 10 year mining lease over 13.9 ha would result in any permanent loss of that 13.9 ha of land resulting in deprivation to the land holder. There is no evidence that the grant of this particular Lease will cause severance to the land. However, the grant of this renewed Lease will to some extent cause a diminution of the use which GJAC may make of the land. There might also be other loss or expense that arises from the grant of the renewal of the Lease. Accordingly, these are the bases upon which I determine compensation.
What compensation is payable for diminution of the use of the land?
- [21]I am presented with alternative methods of assessment of compensation for the diminution of the use of the area. One based on a land valuation approach adopting the annual State Valuation Service assessment per ha, the other based on an assessment of lost opportunity, in the sense that the land would otherwise have been put to productive use.
- [22]The information concerning the current use of Bonny Glen Station as a grazing enterprise is conflicting. I understand the GJAC have ambitions to build the grazing business. Evidence to support an assessment of compensation for loss of productive use would relate to the importance of the area to the enterprise, the stocking rate and the consequences on production as a result of the mining operation. There is no evidence of this kind before me.
- [23]In Tempo 3 v Gummi Junga Aboriginal Corporation[1] I was faced with a similar dilemma concerning the compensation methodology and quantum. In that case it was agreed that the per hectare value of the land (Bonny Glen Station) was in the order of $10 per ha. I concluded that $10 per ha was not an unrealistic assessment. In the 12 months since that decision I have no evidence to suggest the value has changed.
- [24]There is no evidence to suggest that I should not assess compensation for the entire area of the Lease, that is 13.4 ha. Accepting that, compensation for diminution of the use of the land is, as Mr Lynch proposed, $135 pa for the term of the Lease. As noted by Mr Lynch in his reply, GST is not payable on compensation.
Other compensable loss or expense that arises from the lease
- [25]Although the material indicates a 60 metre access track leads to the Lease, I am unable to quantify the area and have no evidence to assist me in determining what, if any loss or expense may arise.
- [26]There is sometimes a justification for an award of compensation for the administrative costs a landholder might incur as a result of a mining lease on their land. No claim has been made. I note Mr Lynch’s submission that: “ML 20609 was granted having opted into the Small Scale Mining and Exploration Activities – Western Yalanji People ILUA” on 6 June 2006. Mr Lynch says that the permit complied with the cultural and heritage inspection requirement whilst held by the form miner and that the permit remains compliant with the conditions of the ILUA.
- [27]In the absence of other evidence there is no identified compensable loss or expense arising. The GJAC is however entitled to an additional amount to reflect the compulsory nature of the action taken pursuant to s 281(4)(e) of the MRA. That amount shall be 10% of the aggregate amount determined under s 281(3) of the MRA.
Conclusion
Head of compensation | Amount ($) |
Diminution of the use made or which may be made of the land: 281(3)(a)(iii) – per annum | $135.00 |
Additional amount to reflect the compulsory nature of the payment: s 281(4)(e) | 10% |
Orders
- In respect of the application for renewal of ML 20609, compensation is determined in the amount of One Hundred and Forty-Eight Dollars and Fifty Cents ($148.50) per annum representing the diminution of the use made or which may be made of the land ($135 plus 10%); and
- The applicant must pay the amount set out in order 1 and 2 to the respondent within one (1) month of the date of the grant of the renewal of ML 20609 by the Department of Resources, and then annually on the date of the grant of the renewal of ML 20609 by the Department of Resources.
Footnotes
[1][2021] QLC 34.