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  4. Fisher v Gummi Junga Aboriginal Corporation - [2023] QLC 11

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Fisher v Gummi Junga Aboriginal Corporation[2023] QLC 11

Fisher v Gummi Junga Aboriginal Corporation[2023] QLC 11

LAND COURT OF QUEENSLAND

CITATION:

Fisher v Gummi Junga Aboriginal Corporation [2023] QLC 11

PARTIES:

Max Henry Fisher

(applicant)

v

Gummi Junga Aboriginal Corporation

(respondent)

FILE NO:

MRA040-23

PROCEEDING:

Determination of compensation payable for renewal of mining lease

DELIVERED ON:

4 August 2023

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 30 June 2023

HEARD AT:

On the papers

MEMBER:

JR McNamara

ORDERS:

  1. 1.
    In  respect  of  the  application  for  renewal  of ML20278, compensation is determined in the amount of Three Hundred and Fourteen Dollars and Sixty Cents ($314.60) per annum representing the diminution of the use made or which may be made of the land ($286 plus 10%); and
  1. 2.
    The applicant must pay the amount set out in order 1 to the respondent within one (1) month of the date of the grant of the renewal of ML20278 by the Department of Resources.
  1. 3.
    From year 2 and in each successive year for the term of renewal, the Consumer Price Index must be applied to the amount paid in the preceding year, and paid annually on the date of the grant of the renewal of ML20278 by the Department of Resources.

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 (Qld) – where no material filed by the respondent – where parties were negotiating agreement but no fully executed agreement in proper form for lodgement exists

Mineral Resources Act 1989 (Qld) ss 279, 281

Lynch v Gummi Junga Aboriginal Corporation [2022] QLC 18, cited

McFarlane v Gummi Junga Aboriginal Corporation [2023] QLC 9, cited

Tempo 3 Pty Ltd v Gummi Junga Aboriginal Corporation [2021] QLC 34, cited

APPEARANCES:

Not applicable

  1. Background
  1. [1]
    The applicant, Mr Fisher is the holder of Mining Lease 20278 (ML20278). Mr Fisher applied for a 21-year renewal of the lease, following its expiry on 30 November 2022. ML20278 is located on Bonny Glen Station which is owned by the respondent, Gummi Junga Aboriginal Corporation (GJAC).
  1. [2]
    Before the renewal of ML20278 can be granted, compensation with GJAC must be agreed or determined by the Land Court on the basis of the criteria in the Mineral Resources Act 1989 (Qld) (MRA). A fully executed compensation agreement has not been lodged with the Department of Resources (the department) or filed in the Land Court.
  1. Proceedings in the court
  1. [3]
    The parties indicated in reviews before the court that they were negotiating an agreement with a view to lodging a fully executed agreement with the department.
  1. [4]
    There were 5 court reviews. Although the respondent appeared at only two of the reviews, the court was informed on three occasions that negotiations were going well and that the matter was likely to be resolved by agreement.
  1. [5]
    A 13 June 2023 email from the GJAC representative to the court and to Mr Fisher advised that the GJAC representative was dealing with health issues and was not able to participate until further notice. The email also said that:
  1. “I am aware that there was no representation from GJAC at the last court date, however, I have been in contact with Mr Max Fisher since and we have come to an agreement where Gummi Junga Aboriginal Corporation accepts the monetary negotiations ($20.00 per hectare) made by Mr Fisher for the renewal of his lease with his acceptance of the new GJAC compensation agreement document as discussed previously at our own meeting held in April 2023.”
  1. [6]
    At the 16 June 2023 review, it was apparent to me that execution of a compensation agreement by GJAC in the foreseeable future was unlikely. In the circumstances, I made orders for the filing of Mr Fisher’s compensation statement and the GJAC’s response to enable an “on the papers” determination to be made.
  1. [7]
    Mr Fisher filed his material on 22 June 2023. Included in his supporting material is a “Miners Compensation Agreement for small-scale mining operations” (the Miners Compensation Agreement) executed by him (Mr Fisher) only. The ‘footer’ on the cover page says: “GJAC Miners Compensation Agreement 2023©”.
  1. [8]
    The GJAC did not file any material.
  1. Evidence
  1. [9]
    The following information is drawn from documents filed by Mr Fisher:
  1. ML20278 was first granted on 14 November 1996 for a term of 21 years. The ML was renewed 1 December 2017 for five (5) years, which term expired 30 November 2022. Mr Fisher now seeks a 21-year renewal.
  1. The Certificate of Application says that ML20278 is located approximately14.5km west of the Palmer River Road House. The Resource Authority Public Report places it approximately 26km south west of Lakeland. The Originating Application says it is 5km west of the Palmer River. There is no question that ML20278 is on Bonny Glen Station.
  1. The Certificate of Application for ML20278 identified the “mining purpose” and target minerals as: silver ore, gold, copper ore, living quarters/camp, platinum, tin ore.
  1. The “Mining Lease – mining program template” (signed by Mr Fisher 9 November 2022) says that:
  • ML20278 is to be mined in conjunction with the ‘Doughboy Mines’ operation.
  • The main objective of ML20278 is: “Open cut mining, processing plant and camp/accommodation facility (initially mobile. Should hard rock mining expand exponentially then a permanent infrastructure)”.
  • ML20278 would be a “base for pegging mining leases on EPM27342” where there are two abandoned mines. EPM27342 is to the north of ML20278.
  • While the Originating Application (and the Resource Authority Public Report) says that the total area of ML20278 is 11.39ha, the work program says the area of disturbance on ML20278 in the 2022-23 and 2023-26 seasons is to be 6.5 hectares (5.5 ha mine operation, 1ha living quarters) – see following map.

Fisher v Gummi Junga Aboriginal Corporation [2023] QLC 11

Figure 1.1 Map 3.b) attached to Applicant’s compensation statement filed 22 June 2023.

  • The Work Program/Mining Program which is Schedule 2 to the “Miners Compensation Agreement” filed by Mr Fisher on 22 June 2023 says: “The whole area is required for mining deposit, Top soil stock pile, overburden stock pile, processing area and Living quarters/camp”. The living quarters are described as “transportable”.
  • The Work Program/Mining Program says the workforce 2023-2026 “will initially consist of My partner and myself as this will be a low impact mining operation. Should ML20278 prove to be an ongoing concern then the relevant qualified work force will be either contracted or hired. Contract drill Riggers for drilling. Contract Diesel Mechanics. Employ Machine operators, Cooks etc.”
  1. The program does not describe work to be carried out beyond the 2026 season.
  1. The ‘Doughboy Mines’ operation includes six (6) other mining leases granted for purposes including alluvial mining, camp/workshop, dimension stone mining (slate), and hard rock mining. The material, including the Environmental Authority EPSL00957513, suggests that Mr Fisher is the holder of all the mining leases that constitute the ‘Doughboy Mines’ operation, as well as EPM27342 which sits to the north of ML20278.
  1. It is not clear if all or any of the other 6 mining leases are on Bonny Glen Station.
  1. None of the ML’s that constitute the ‘Doughboy Mines’ operation are contiguous with ML20278 (see following map).

Fisher v Gummi Junga Aboriginal Corporation [2023] QLC 11

Figure 1.1 Map of ML20278 and Doughboy Mines operation, attached to Applicant’s compensation statement filed 22 June 2023.

  1. The Miners Compensation Agreement for small-scale mining operations
  1. [10]
    As noted above Mr Fisher filed the Miners Compensation Agreement on 22 June 2023. Mr Fisher completed the document by: ‘ticking’ boxes/alternatives where offered; inserting requested information such as the contact persons details; inserted a compensation amount of $20/ha per annum together with GST to be paid on the anniversary of the grant of ML20278; deleted some clauses; and on the execution page there appears his signature and the signature of a witness.
  1. [11]
    The Miners Compensation Agreement was created by GJAC with the footer on the cover sheet indicating a version “2023©”. I have seen a 2022© version of this document which I refer to in an earlier mining compensation decision Lynch v Gummi Junga Aboriginal Corporation [2022] QLC 18. Apart from some clauses concerning the need for a bank guarantee, the provision of a copy of a particular Indigenous Land Use Agreement, and a requirement to undergo Cultural Awareness Training, the documents appear identical.
  1. [12]
    As noted at [6] above, the GJAC representative advised Mr Fisher and the court by email on 13 June 2023 that the Gummi Junga Aboriginal Corporation accepted the monetary compensation amount ($20.00 per hectare) proposed by Mr Fisher for the renewal of his lease with his acceptance of the new GJAC compensation agreement.
  1. [13]
    The GJAC have not executed the Miners Compensation Agreement. The document has not been lodged with the department, and in its incomplete form would not be accepted by the department for the purposes of s 279 MRA.
  1. [14]
    In Lynch v GJAC, I noted that that Miners Compensation Agreement (version 2022©) was a detailed form of agreement which included clauses addressing compensation, conduct, special conditions, indemnity, and dispute resolution. I also noted that there were many clauses concerning conduct, and “special conditions/other agreed terms” listing the following documents: 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.
  1. [15]
    I concluded in Lynch v GJAC that the matters in the Miners Compensation Agreement concerning conduct were not outcomes that I could order. Parties can of course mutually agree other terms if they wish.
  1. Issues
  1. [16]
    As I have stated in other mining compensation matters, the s 281 MRA criteria are directed at any or all loss a landowner might suffer: if they are deprived of their 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 grant of the mining lease.
  1. [17]
    I have no direct evidence from the GJAC about any of these matters. The only evidence is the email from Ms Latu, the representative of the GJAC, referred to at [6] and [13] above. The email expresses an intention to enter into an agreement if: the compensation amount is agreed; and, if Mr Fisher accepted the “new GJAC compensation agreement document as discussed previously at our own meeting held in April 2023.”
  1. [18]
    It appears that Mr Fisher did accept the compensation amount, but I cannot be satisfied that the document he filed is the “new GJAC compensation agreement document as discussed previously at our own meeting held in April 2023” referred to by Ms Latu. The “2023©” is most probably the “new GJAC compensation agreement document”, but it has been modified by Mr Fisher, including by the deletion of some clauses; there is no evidence of what was discussed at the meeting held in April 2023; and the document has not been executed by the authorised signatory of the GJAC.
  1. The statutory criteria
  1. [19]
    At [10] I set out the evidence concerning the intentions of Mr Fisher in relation to ML20278. It is accepted by Mr Fisher that the whole of the 11.39ha area of ML20278 is required for mining, stock piling top soil, stock piling overburden, a processing area and living quarters/camp. The work has the potential to “ramp up” should ML20278 “prove to be an ongoing concern” and a range of contractors including drill riggers, diesel mechanics, machine operators and cooks may be engaged. Relevantly, Mr Fisher says that “ML20278 is to be mined in conjunction with the ‘Doughboy Mines’ operation. The ‘Doughboy Mines’ operation involves 6 other mining leases near, but not contiguous with, ML20278. That has the potential to have a compounding impact on the use and enjoyment of Bonny Glen Station by the GJAC that might not occur if ML20278 was worked as a stand-alone mine.
  1. [20]
    Deprivation (of possession of the surface of GJAC’s land): There is no evidence that a mining lease over 11.39ha of land would result in any permanent loss of that 11.39ha.
  1. [21]
    Diminution (of the value of GJAC’s land): I have no evidence to assess what if any diminution in the value of the 146,000ha Bonny Glen Station would result from the renewal of ML20278. I note that the term of the renewal applied for is 21 years and that the whole of the ML area will be unavailable to the GJAC while the mine is beingworked, and potentially worked intensively. There is no evidence concerning the importance of the ML area to Bonny Glen Station as an enterprise, for example, evidence concerning the stocking rate and the consequences the mining activity on ML20278 might have on production.
  1. [22]
    Diminution (of the use made or which may be made of the land of the owner): The intensity and impact of the mining means the whole of the ML area will be unavailable for productive use by GJAC for the term of the lease.
  1. [23]
    Severance: There is no evidence that the grant of ML20278 will cause severance to the land.
  1. [24]
    In these circumstances I am confined to assess compensation for the diminution of the use which GJAC may make of the land and to other loss or expense that arises from the grant of the renewal of ML20278.
  1. What compensation is payable?
  1. [25]
    I have no evidence to consider a compensation methodology based on the impact the mine might have on the productive use of the land. I was in the same situation in Lynch v GJAC, and in Tempo 3 Pty Ltd v Gummi Junga Aboriginal Corporation.[1] In Lynch v GJAC, I noted that in Tempo 3 I concluded that $10/ha was not an unrealistic assessment of compensation, and applied that amount in that case. I applied the same in the most recent decision concerning Bonny Glen Station, McFarlane v Gummi Junga Aboriginal Corporation.[2]
  1. [26]
    In this case there are other considerations. The evidence suggests to me that the impact of mining on ML20278 might compound, or might be compounded by, activities on the other 6 mines that constitute the ‘Doughboy Mines’ operation – in particular movement between the seven mine sites, and movement between ML20278 and EPM27342. In those circumstances, I do not think the suggested amount of compensation apparently agreed between the parties is unreasonable. That is, $20/ha per annum. Although capital gains tax is not payable on mining compensation, I note that the proposed agreement assumed that GST would be payable. In the circumstances, I would allow $22/ha per annum. I consider that the same rate shouldapply to the total area of ML20278 and to the area of an access track to ML20278 on Bonny Glen Station. The area of access track is not quantified anywhere in the material. The total area of ML20278 is 11.39ha. The maps included in Mr Fisher’s material show tracks of some distance leading into and out of ML20278. I can only estimate an area and for simplicity will round the total area of ML20278 and any access track area to 13 hectares.
  1. [27]
    Compensation pursuant to s 281(3)(a)(iii) MRA for diminution of the use of the land would therefore be $286 per annum.
  1. [28]
    In the absence of other evidence, there is no identifiable 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) MRA. That amount shall be 10% of the aggregate amount determined under s 281(3) of the MRA.
  1. [29]
    In addition, noting the 21-year term applied for, I think it is reasonable that the annual compensation be indexed to the Consumer Price Index (CPI). This means that from year 2, the CPI be applied to the aggregate amount of the previous year. For year 1, within one month of the grant of the renewal of ML20278 compensation payable will be $314.60 ($286 plus $28.60).[3] If CPI was negative, compensation would remain at the rate in the previous year, that is, it would not decline.
  1. [30]
    Finally, I said at [16] that in a compensation decision I am unable to make orders regarding matters of conduct between the parties. The fact that compensation has been determined by the court does not however prevent Mr Fisher from voluntarily honouring any commitments agreed to in the course of negotiations, and I would expect that he would.
  1. Conclusion
  1. [31]

Head of compensation

Amount ($)

Diminution of the use made, or which may be made of the land: 281(3)(a)(iii)

$286.00

Additional amount to reflect the compulsory nature of the payment: s 281(4)(e) - (10%)

$28.60

Total compensation to be indexed annually at the CPI from year 2.

$314.60

  1. Orders
  1. 1.
    In respect of the application for renewal of ML20278, compensation is determined in the amount of Three Hundred and Fourteen Dollars and Sixty Cents ($314.60) per annum representing the diminution of the use made or which may be made of the land ($286 plus 10%); and
  1. 2.
    The applicant must pay the amount set out in order 1 to the respondent within one (1) month of the date of the grant of the renewal of ML20278 by the Department of Resources.
  1. 3.
    From year 2 and in each successive year for the term of renewal, the Consumer Price Index must be applied to the amount paid in the preceding year, and paid annually on the date of the grant of the renewal of ML20278 by the Department of Resources.

Footnotes

[1][2021] QLC 34.

[2][2023] QLC 9 [26].

[3]The Consumer Price Index can be found on the website of the Australian Bureau of Statistics. The relevant % figure is the CPI over the previous 12 months to the quarter closest to the date of renewal (ie March, June, September or December).

Close

Editorial Notes

  • Published Case Name:

    Fisher v Gummi Junga Aboriginal Corporation

  • Shortened Case Name:

    Fisher v Gummi Junga Aboriginal Corporation

  • MNC:

    [2023] QLC 11

  • Court:

    QLC

  • Judge(s):

    JR McNamara

  • Date:

    04 Aug 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Lynch v Gummi Junga Aboriginal Corporation [2022] QLC 18
2 citations
Jump To
Cite 1 - [2022] QLC 18
Cite 2 - [2022] QLC 18
McFarlane v Gummi Junga Aboriginal Corporation [2023] QLC 9
2 citations
Jump To
Cite 1 - [2023] QLC 9
Cite 2 - [2023] QLC 9
Tempo 3 Pty Ltd v Gummi Junga Aboriginal Corporation [2021] QLC 34
2 citations
Jump To
Cite 1 - [2021] QLC 34
Cite 2 - [2021] QLC 34

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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