McFarlane v Gummi Junga Aboriginal Corporation
[2023] QLC 9
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- Unreported Judgment
- McFarlane v Gummi Junga Aboriginal Corporation[2023] QLC 9
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McFarlane v Gummi Junga Aboriginal Corporation[2023] QLC 9
McFarlane v Gummi Junga Aboriginal Corporation[2023] QLC 9
LAND COURT OF QUEENSLAND
CITATION: | McFarlane v Gummi Junga Aboriginal Corporation [2023] QLC 9 |
PARTIES: | David William McFarlane (applicant) v Gummi Junga Aboriginal Corporation (respondent) |
FILE NO: | MRA307-22 |
PROCEEDING: | Determination of compensation payable for renewal of mining lease |
DELIVERED ON: | 16 June 2023 |
DELIVERED AT: | Brisbane |
HEARD ON: | Submissions closed 28 April 2023 (further and final material filed on 11 May 2023). |
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 located on the landholder respondent’s property – where no material filed by the respondent – whether and, if so, what compensation was payable under s 281 of the Mineral Resources Act 1989 (Qld) Mineral Resources Act 1989 ss 279, 281 Kelly v Chelsea on the Park Pty Ltd [2020] QLC 36, cited Lynch v Gummi Junga Aboriginal Corporation [2022] QLC 18, cited Tempo 3 v Gummi Junga Aboriginal Corporation [2021] QLC 34, cited |
APPEARANCES: | Not applicable |
Background
- [1]David William McFarlane is the holder of Mining Lease 40068 (ML 40068). ML 40068 is located on Lot 66 on SP245572 (Bonny Glen Station). The Gummi Junga Aboriginal Corporation (GJAC) is the registered landowner of Bonny Glen Station.
- [2]The term of ML 40068 expired on 30 September 2022. On 18 February 2022, Mr McFarlane applied for a 10-year renewal of the ML. Under the Mineral Resources Act 1989 (Qld), the ML will not be renewed unless compensation is agreed with the landowner or determined by the Land Court. Mr McFarlane filed this application on 10 November 2022 for the Court to determine compensation.
- [3]ML 40068 is over an area of 1.32 hectares and sits in a bend of the Palmer River. The Lease is located in the Cook Shire, approximately 43km southwest of Lakeland.
- [4]The access track to ML 40068 is over an area of 0.12 hectares – 200 metres long, and 6 metres wide. The access track runs south from ML 40068 to meet a separate road parcel that continues and joins the access track to ML 20568, situated to the east of the Lease.[1] ML 20568 is to the southern end of the South Palmer River and is also held by Mr McFarlane.
- [5]In the Mining Program, ML 40068 is described as an infrastructure lease that has been associated with surrounding alluvial gold mining leases operated on by Mr McFarlane for several years. I understand that the purpose of the ML specified in the ML 40068 Resource Authority Public Report is: Living quarters/camp, Workshop/machinery/storage.
Applicant’s material and position
- [6]As at 27 April 2023, the Form 01A application, compensation statement and an attached draft compensation agreement were the only documents on the court file. On 27 April 2023, further material regarding the activities to be carried out on the ML was sought from Mr McFarlane.
- [7]On 11 May 2023, the applicant filed a copy of the Application to Renew ML 40068 dated 18 February 2022; an obligation history statement; a land list with land parcel details; and a Description of mining operations – Mining program.
Compensation statement
- [8]The applicant filed a compensation statement on 13 February 2023 (‘the compensation statement’). The compensation statement says that the proposed mining lease is a small elluvial and alluvial mining operation with one employee at any one time, with little interference with station business or stock.
- [9]Apart from saying that “the historical $10/ha compensation agreements are not suitable” and that Mr McFarlane has always offered an amount well over $10/ha, there is no compensation amount specified in the compensation statement. However, the Proposed Compensation Agreement indicates a willingness on the part of Mr McFarlane to pay a flat amount of $100 per year due on the anniversary date of the permit.
- [10]The Proposed Compensation Agreement also lists several conduct conditions that the applicant would abide by. I would expect that these conduct conditions would be honoured even in the absence of agreement.
Description of mining operations – Mining program
- [11]The Mining Program says that:
ML 40068 is an infrastructure lease that has been associated with other alluvial gold mining leases operated on by Mr McFarlane for several years; and
ML 40068 will be used to upgrade the concentrate recovered from ML 20586, to repair machinery used for mining on ML 20586, and for all the associated requirements involved in running a successful mining operation.[2]
- [12]It also says that the infrastructure and operations on ML 40068 consist of a fully operable camp, workshop, and plant storage area.
- [13]While it appears that there will be no active mining occurring on ML 40068, mining related activities will be carried out. It is unclear if these activities will have any permanent impact on the land. It is unclear the extent, if any, to which the proposed activities would restrict any use and access to the area by the GJAC. Based on the Mining Program, it is fair to assume that the GJAC will have little, if any, access to the mining lease area for the term of the lease.
- [14]The applicant says that operations have been in abeyance due to the alterations to previously granted access tracks to both leases.
Application to renew
- [15]In his application to renew ML 40068, dated 18 February 2022, Mr McFarlane indicated that there was a valid compensation agreement in place applying to every land parcel covered by the permit area, including access to the permit. This prior compensation agreement with the respondent is not in evidence. There is no explanation on the file for why the previous compensation agreement is not in evidence.
Respondent’s material
- [16]The Respondent has not filed any material in compliance with court orders.
- [17]In a review listing before me on 24 March 2023, GJAC indicated that its Board was experiencing delay in considering the Court’s orders and the compensation application. Without going into detail, GJAC explained that the delay was a consequence of new office bearers and family members of the responsible committee members dealing with sickness.
- [18]On 24 March 2023, the Court, without objection from the Respondent, extended the time for a decision from the Court to a date not before 28 April 2023.
- [19]On 28 April 2023, the Court made orders extending the date for the matter to be determined not before 4:00pm on 12 May 2023 to request further information about the Lease from the applicant.[3]
- [20]In the extended timeframe, no material was filed by the Respondent.
- [21]The applicant did not object to the non-compliance of the respondent, or the extension of time granted by the orders of 24 March 2023 to allow the respondent to comply.
Communication between the parties, and the Court
- [22]The compensation statement says that the applicant commenced correspondence with the respondent in August 2022. In that correspondence, Mr McFarlane sent a proposed compensation agreement template to the respondents for consideration.
- [23]Upon receiving no response from GJAC, Mr McFarlane engaged AMETS in November 2022 to act on his behalf in this matter. Since then, the applicant has followed up with GJAC requesting an update on the review of the document. The court has not been informed of any update or progress with respect to this document, or negotiations between the parties.
The draft agreement
- [24]Mr McFarlane, in the draft agreement attached to his compensation statement, has nominated the amount of $100/year as compensation. The draft agreement is unsigned. The applicant does not expressly indicate why he thinks $100/year is the appropriate compensation amount. The compensation statement says that “Mr McFarlane is aware that the historical $10/ha compensation agreements are not suitable, and has always offered an amount well over this ($/ha).”
- [25]While the applicant’s proposed compensation offer is in evidence, the court must address the statutory criteria and relevant heads of compensation, as set out below.
- [26]In my most recent compensation decisions concerning this respondent, Tempo 3, and Lynch, I concluded that $10 per ha was not an unrealistic assessment of compensation on Bonny Glen Station.[4] In the 7 months since Lynch, I don’t have evidence or information before me to warrant a change in the per hectare rate.
- [27]While the court has put an end to the method of determining mining compensation based on an arbitrary rate,[5] in this matter, there is no evidence of the landholder’s actual or proposed loss with respect to this Lease.
The Statutory criteria
Will GJAC be deprived of possession of the surface of the land? s 281(3)(a)(i)
- [28]GJAC will be deprived of possession of 1.32ha of its land and possibly a reduced use of the area of the access track, for the next 10 years, should the ML be renewed. The operations to occur on the lease do not suggest that the surface of the land will be affected permanently, or in a way that deprives GJAC of its possession of the surface of the land.
Will there be diminution of the value and use made, or use which may be made of the land? s 281(3)(a)(ii)-(iii).
- [29]There is no evidence from the respondent about the actual, or proposed use of the land. In the Land List filed 11 May 2023, the applicant identifies that the land on Bonny Glen Station, is used for low intensity grazing.
- [30]The infrastructure and operations on the Lease consist of a fully operable camp, workshop, and plant storage area.[6] The Lease area is to be used to upgrade the concentrate recovered from ML 20586, to repair machinery used on ML 20586, and for all associated requirements involved in the running of a successful mining operation.
- [31]ML 20586 is an Elluvial, colluvial and alluvial gold and elluvial, colluvial and alluvial tin mining lease.
- [32]The infrastructure operations on ML 40068 will occur on the surface. These operations do not seem to significantly alter or impact the use of, or possible uses of Bonny Glen Station. This Lease was granted and has been in operation since 1993. I consider the operations on this Lease of this size, and it being a one-person operation, would have no measurable effect on the operations conducted by the landowner on its 146,000ha property.
- [33]However, there would be some minor effect in the vicinity of the Lease which would include the noise, dust and vibrations of the machinery, the movement of vehicles and the process of moving and storing the plant, and machine work in the workshop on the Lease area and access track.
- [34]For the minor diminution the operations may have on the land, compensation under this head is $13.20, at the assessable rate of $10 per hectare. As noted, a more generous compensation offer was made by Mr McFarlane, however my compensation decision cannot be arbitrary, it is relative to the statutory criteria and evidence. It is a matter, however, for Mr McFarlane should he wish to honour the more generous offer made in his proposed compensation agreement.
- [35]Compensation under this head for the 1.32ha Lease area adequately covers compensation for surface rights of access on the 0.12ha access track.[7]
- [36]
- [37]The respondent has not provided any material or evidence to indicate any loss or expense to the landholder that arises because of the Lease being granted.[9]
Additional amount to reflect the compulsory nature of the payment: s 281(4)(e)
- [38]An additional 10% of the amount will be granted to reflect the compulsory nature of the ML upon renewal. There is no evidence to warrant any additional allowance, above the 10% allowed by statute.
Conclusion
- [39]Compensation for the diminution of the value of the land is calculated at $14.52 (including 10%), then rounded to $15.00. The compensation amount for the renewal term of 10 years is calculated at $150.00, per the below:
Head of compensation | Amount ($) |
Diminution of the value of the land: s 281(3)(a)(ii)-(iii) | $13.20 |
Additional amount to reflect the compulsory nature of the payment: s 281(4)(e) | $1.32 |
Compensation amount per annum | $14.52 (rounded to $15.00) |
Compensation amount payable for the term of renewal: $15 x 10 years | $150.00 |
Orders
- 1.In respect of the application for renewal of ML 40068, compensation is determined in the total amount of One Hundred and Fifty Dollars ($150) as a lump sum for the 10-year term of renewal. This amount is for the diminution of the use made or which may be made of the land including 10% reflecting the compulsory nature of the mining lease.
- 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 ML 40068 by the Department of Resources.
Footnotes
[1] Applicant’s ‘ML 40068 Application-Maps-Receipt’, filed 11 May 2023.
[2] Applicant’s ‘Description of mining operations – Mining program’, filed 11 May 2023.
[3] Discussed above at [6] – [7].
[4]Tempo 3 Pty Ltd v Gummi Junga Aboriginal Corporation [2021] QLC 34 [19]; Lynch v Gummi Junga Aboriginal Corporation [2022] QLC 18 [23].
[5]Kelly v Chelsea on the Park Pty Ltd [2020] QLC 36.
[6] Applicant’s ‘Description of mining operations – Mining program’, filed 11 May 2023, 3.
[7]Mineral Resources Act (Qld) (‘MRA’) s 281(3)(a)(v).
[8]MRA s 281(3)(a)(iv).
[9]MRA s 281(3)(a)(vi).