Vymetal v Blue Bay Tas Pty Ltd[2025] QLC 4

LAND COURT OF QUEENSLAND

Background

1. [1]
   Lukas Vymetal has applied for the grant of mining claim MC300437 over an area of 1 hectare on Lot 581 on SP 263756, known as Spring Hill Station, Mount Carbine. Access to the mining claim is via a 21 km access track, an area of 6.3 hectares.

2. [2]
   A mining claim cannot be granted or renewed unless compensation between the miner and any affected landholder is agreed or determined by the Land Court.^[1]

3. [3]
   On 22 May 2024 the Mining Claim Notice for MC300437 was re-issued following the 19 April 2024 dismissal of Mr Vymetal’s earlier mining claim compensation application, MRA003-24. The re-issued Mining Claim Notice invited objection by 4.30 pm 21 June 2024. No objections to the grant of MC300437 were lodged. The mining compensation application now before the Court was filed on 9 July 2024.

4. [4]
   The Land Court Practice Direction 3 of 2019 requires an applicant to provide to the Court the following documents either with their application or within 10 days of filing: 

3. a)
   A Mines Online Public Inquiry Report;

3. b)
   A map showing tenure area and access land;

3. c)
   A copy of any Environmental Authority;

3. d)
   Information and maps showing which areas of the mining claim is situated on which underlying land tenure;

3. e)
   A copy of the application for grant or renewal of a mining claim;

3. f)
   A copy of any amendment to the application after it was lodged;

3. g)
   Certificate of application for the mining claim;

3. h)
   Any Court instruction or recommendation in respect of the mining lease or mining claim;

3. i)
   A copy of any previous application or referral to the Court for a determination of compensation for the tenure area and access land for this mining lease or mining claim; and

3. j)
   A copy of any prior compensation agreement or court determination of compensation for the tenure area and access land for this mining lease or mining claim.

5. [5]
   The material accompanying the application was deficient. It is not the role of the Court to conduct research or procure evidence for parties.

Mining claims

6. [6]
   There are two types of mining claims, “prescribed mining claims” or “hand mining claims”. Prescribed mining claims can be granted for an area up to 20 ha and allow the use of machinery for opal, gemstones, corundum, and other precious stones. A mining claim that is not a “prescribed mining claim” may only be granted for “hand mining”. The maximum area is 1 ha. This is the case here.

7. [7]
   The only reference to “hand mining” in the Mineral Resources Act 1989 (Qld) (MRA) is in s 50(1)(a)(ii) which states: “for a mining claim other than a prescribed mining claim—hand mine in accordance with the conditions of the mining claim any mineral to which the mining claim applies.” Gold is the mineral to which the mining claim applies.

8. [8]
   Schedule 2 to the MRA contains the following definition:

hand mining means mining using hand-operated tools, including, for example, picks, shovels, hammers, gads, sieves and windlasses, but does not include mining using explosives.

The applicant’s documentation

9. [9]
   Frustrated at the lack of meaningful and useful information concerning the mining activities and the impact those activities are likely have on the respondent, I asked the Land Court Registry to write to Mr Vymetal asking for the documents which were required to accompany the application to be filed by 4.00 pm Friday 17 January 2025.

10. [10]
    Mr Vymetal replied on 13 January 2025 saying he was able to “trace and download the requested files from the Mines Online website”. A “zip file” was attached to Mr Vymetal’s reply. “Uploaded documents” to the Application for Mining Claim were hyperlinks to the following:

“Proof of identity” – being a photocopy of Mr Vymetal’s drivers licence.

“Land details” – being a spreadsheet with the property description of Spring Hill Station.

“Access area file” – 7 lines of a spreadsheet with latitude and longitudinal coordinates.

“Statement dealing permit location” – unable to open.

“Statement detailing adjoining resource authorities and land parcel details” – no statement, rather a GeoResGlobe image.

“Map of boundaries and access” – being a GeoResGlobe topographical image.

“Area file” – “Statement justifying the area” – no statement, rather another GeoResGlobe image showing the mining claim area in the bend of a watercourse.

“Proposed work program” – being a “Mining claim work program template v6.2” document.

11. [11]
    The Mines Online Public Inquiry Report was not provided.

The proposed work program

12. [12]
    The “work program” document submitted by the applicant to the former Department of Resources specifies the activities that the applicant says they will conduct in each of the first 5 years of the grant. The proposed term of the grant is 10 years. The same ‘activities information’ is repeated for each of the 5 years. That is: “metal detecting, dry blowing, sluicing and panning”. Under the heading “Quantity of ore and minerals” the applicant says that 100% of the mining claim area “has been previously worked”; that 20% of the mining claim area is intended to be worked over the next 5 years; and that there is sufficient ore deposits in the mining claim area to sustain bona-fide mining activities for the next 20 years. Peculiarly, the date entered on the Applicant’s declaration is 23 January 2003.

13. [13]
    Importantly Mr Vymetal has not described any physical structures to be placed on the mining claim area; and no equipment, lock-up or temporary accommodation to be located on the mining claim area.

14. [14]
    This indicates that Mr Vymetal does not intend to stay on or reside on Spring Hill Station while he conducts 20 hours per week mining activity in the months August to September each year.

15. [15]
    Noting that the area of the mining claim is approximately 1 ha, based on Mr Vymetal’s work program (20% of the 1 ha claim area over 5 years), he would mine an area of around 400m² each year or a little less than 70m²per month. There is no information about the workforce so I assume that Mr Vymetal will be the only person on site.

The parties’ compensation statements

16. [16]
    Orders were made for Mr Vymetal to file a compensation statement and any evidence in support, and for Blue Bay Tas to file a response.

The applicant’s proposed compensation

17. [17]
    Mr Vymetal filed a “Compensation Statement Proposal” on 6 September 2024. The statement reads:

“In matter of land compensation for the mining claim MC300437 my offer is as follows:

(From the FILE NO: MRA028-22 from August 2022 between a miner Mr. Hoffman v Blue Bay Tas Pty Ltd [2022] QLC 10 determination was made for unimproved land value of $35.25 per hectare.)

As my claim MC300437 is under 1ha in size total, my offer is to pay compensation for diminution of the use made or which may be made of the land for full length of proposed period of the mining claim of 10 years including administration cost and 10% GST rounded to $500AUD paid by bank transfer at the day of agreement.”

18. [18]
    In Vymetal v Inverardi [2024] QLC 31 a similar form of compensation statement proposal was presented by Mr Vymetal. In that case I noted that the compensation statement did not expressly or substantively address the criteria for the determination of compensation in s 85(5) of the MRA.

19. [19]
    Once again, the compensation statement is lacking in useful information.

The respondent’s response

19. [20]
    In the response Blue Bay Tas says they are willing to approve Mr Vymetal’s access provided he complies with the required land access protocols. The protocols are not stated. I noted in Hoffman v Blue Bay Tas Pty Ltd [2022] QLC 10 at [25] that proposals which require a party to comply with the law or the terms of grant do not require an order of the Court to give them effect. Other standards or protocols are a matter of negotiation between miner and landholder. Proposals which require a party to comply with various codes of conduct or a code of practice do not require an order for the code to apply, if the code automatically applies due to the nature of or the consequence of the activity. If a party wishes to voluntarily agree to comply with a code that might not otherwise apply, then that is a matter that can be negotiated.

21. [21]
    Blue Bay Tas did not file any material by the due date. Further orders were made for Blue Bay Tas to file a response by 15 November 2024 and for any reply from Mr Vymetal by 29 November 2024.

22. [22]
    The response statement filed by Blue Bay Tas raises concerns about the impact mining might have on the watercourse and ecology – which may be relevant to their enterprise. They say that mining activities may lead to a range of soil problems, the removal of surface vegetation which can lead to soil erosion and a decrease in land fertility, and an increase in the risk of flooding. They also raise concerns about access track use, construction and maintenance.

23. [23]
    The response from Blue Bay Tas did not provide any information concerning the pastoral or other activities carried out on Spring Hill Station which might be affected by the grant of the mining claim.

24. [24]
    Blue Bay Tas submit that given the “immeasurable environmental damage caused by Mr Vymetal’s access to our land” he should pay $1000 per visit to deal with the environmental problems “and to hire employees to supervise” Mr Vymetal while he is working the mining claim.

The applicant’s reply

25. [25]
    Mr Vymetal says, without further explanation, that the concerns of Blue Bay Tas are managed under “under the code of environmental compliance and the EA Act”. He says that because “visit” is not defined, and the fact that he may access the mining claim several times a day, the compensation claimed cannot be justified.

26. [26]
    Small-scale mining in Queensland and its impacts is subject to an extensive regime of legislation, policies, procedures, codes and guidelines. Because it has been raised by Mr Vymetal in response to certain concerns expressed by Blue Bay Tas, I will make some observations about the regime.

Small-scale mining on Mining Claims

27. [27]
    The Small Scale Mining Code was made by regulation pursuant to s 391C MRA. The Code aims to manage impacts of small-scale mining activities carried out under certain mining claims by stating guidelines for activities to ensure they are carried out in an environmentally responsible way; ensure land subject to the activities is managed responsibly; minimise conflicts about land use because of the carrying out of the activities; and ensure land is rehabilitated after the activities are completed.

28. [28]
    Where the proposed small-scale mining activity meets the definition in Schedule 4 of the Environmental Protection Act 1994 (EP Act) a mining claim can operate without an environmental authority. The definition excludes, amongst other things, mining activity in a watercourse or riverine area; and activity close to certain environmentally sensitive areas.

29. [29]
    “Riverine area” is defined in the EP Act Schedule 4 simply: “does not include land outside the flood flow channel of a watercourse”.

30. [30]
    I note the Blue Bay Tas response to Mr Vymetal’s compensation statement where it says: “We notice that the mining claim MC300437 … relates to a mining area close to a river, which could lead to serious water pollution problems”.

31. [31]
    I am not determining an objection to the grant of MC300437. Absent information or advice to the contrary, I must assume that the location of the mining claim, which the mapping suggests is located within a bend of a watercourse, was considered by the Department when assessing the application. That is, it was accepted that the land is not in the flood flow channel of a watercourse – and that the mining claim if granted is not required to hold an environmental authority.

32. [32]
    Small-scale miners must nevertheless comply with the general environmental duty found in s 319 of the EP Act which provides that a person must not carry out any activity that causes, or is likely to cause, environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm.

33. [33]
    Guidelines for Mining Claims are found in the Small Scale Mining Code Part 2. The guidelines address: land disturbance; backfilling; excavations; dams; erosion and sediment control; noise and dust; machinery and equipment use; roads and tracks; fuel storage; and general waste. The mandatory conditions in Part 4 of the Code do not apply to a mining claim which is not the subject of an environmental authority.

The Environmental Protection Regulation 2019

34. [34]
    Prescribed conditions for small-scale mining activities are found in Schedule 6 Part 2 to the Environmental Protection Regulation 2019.  They concern the rehabilitation of all areas disturbed by the mining activity to establish a landform that is safe, stable, and self-sustaining; and with vegetation of a species and density of cover similar to surrounding undisturbed areas or the landform that existed before the mining activity.       

Application of the Land Access Code

35. [35]
    The Mineral and Energy Resources (Common Provisions) Act 2014 enabled the making of Land Access Codes that state best practice guidelines for communication between the holders of resource authorities and owners of land. The then Department of Resources published version 3 of the Land Access Code in June 2023. Best Practice Guidelines for communication and negotiations are set out in Part 2 of the document. These apply to all resource authorities, including mining claims. The mandatory conditions in Part 3 which deal with access arrangements; livestock and property; the obligation to prevent spread of declared pests; gates, grids and fences, however, do not apply to mining claims.

36. [36]
    Mr Vymetal has an obligation to be aware of his responsibility to observe and comply with the various Acts, Regulations, Guidelines and Codes relevant to the approval he receives to mine the resources of the State on land held by others for grazing purposes.

The s 85(5) criteria

37. [37]
    The task before me is solely to make a determination of compensation taking into consideration the criteria in s 85(5) of the MRA.

38. [38]
    Neither party has provided me with evidence to support its compensation position, apart from Mr Vymetal’s reference to a previous decision concerning Spring Hill Station. Neither party’s submissions substantively address the criteria in s 85(5) of the MRA.

39. [39]
    There is nothing before me to suggest that there will be any deprivation of possession of the surface of the land of the owner.

40. [40]
    MC300437 is a 10 year hand mining claim which Mr Vymetal intends to work by “metal detecting, dry blowing, sluicing and panning” between the months of April and September. Apart from the generalised assertion that there will be immeasurable environmental damage caused by Mr Vymetal’s access, there is no evidence before me to suggest that his activities will result in diminution of the value of the land. There is also no evidence that there will be any severance of the land.

41. [41]
    The material indicates that Mr Vymetal will not place physical structures on the mining claim, nor reside either permanently or temporarily on the mining claim.

42. [42]
    The criteria most relevant in this matter appears to be the diminution of the use made or which may be made of the land and surface rights of access should the mining claim be granted. Mr Vymetal says that his offer of $50 per year encompasses both of these criteria.

43. [43]
    In Theuerkauf v Usher Pastoral Company Pty Ltd [2024] QLC 17, I said that I must rely on evidence to determine compensation. The only “evidence” is Mr Vymetal’s reference to the relatively recent compensation decision in Hoffman v Blue Bay Tas Pty Ltd [2022] QLC 10 where it is suggested the compensation awarded in that case, based on a per hectare unimproved land value, might be a benchmark.

44. [44]
    In that matter, negotiations between the applicant and the former owner of Spring Hill Station had progressed, but had not been finalised, before the sale of the property to Blue Bay Tas was completed. The previous owners of Spring Hill Station based their compensation offer on a per hectare statutory land valuation of $35.35 per ha – although they considered “a truer valuation” based on sales information to be $98 per ha. While actual sales evidence is a better reflection of value, adjustments need to be made to take account of the value of improvements, equipment and stock to determine an applicable rate per hectare. In that case the landowner did not press for the higher amount.

45. [45]
    I do not consider Hoffman v Blue Bay Tas Pty Ltd to have established a precedent that the annual land valuation made by the Valuer-General, simply converted to a per hectare amount, is the compensable amount to be generally applied under s 85 MRA (or s 281 MRA in the case of a mining lease) in this or in any other matter. 

46. [46]
    Compensation is for the impact the activities carried out on the mining claim might have on the landholder’s land and enterprise. Clearly different areas of a rural property will be of greater and lesser quality and value to the enterprise. Proximity of mining activities to grazing areas, the land quality of the affected area, the noise and dust impacts created by the mining activities on areas adjacent including residential areas and stock yards etc, are all relevant to the assessment of compensation.

47. [47]
    I also commented in Hoffman v Blue Bay Tas Pty Ltd that whether considered compensation for “deprivation of possession” (s 85(5)(a) MRA), or “diminution of use made or which may be made of the land” (s 85(5)(c) MRA), the compensation amount under either head will be the same where the mining claim area will be unavailable to the landholder. To be clear, it is either, not both.

48. [48]
    Although it might be Mr Vymetal’s intention to work on only small areas of the mining claim at a time, his physical presence and the noise and dust his activities will produce would make grazing in the whole of the mining claim area unlikely.

Outcome

49. [49]
    The area the subject of Mr Vymetal’s mining claim application is 1 ha. The area of the access track is 6.3 ha. In the absence of evidence to the contrary, I am assuming that the proposed access is on an existing track for its 21 km length. I am also assuming that Mr Vymetal will maintain the track and repair any damage caused to the track during the term of the mining claim.

50. [50]
    I have no information or evidence concerning other users of the track so I will assume that Mr Vymetal is the only user for the purposes of determining compensation. The evidence suggests that Mr Vymetal will enter and leave the property daily to access the mining claim area, and perhaps more often as he indicated in his reply “to bring tools and equipment etc”. I consider therefore that compensation for the access should be calculated at the same rate as for the mining claim area.

51. [51]
    Based on the preceding discussion, compensation ought to be calculated on a per hectare value somewhere between $35.35 and $98, based on the best information I have. I adopt a “mid-point” rate of $70 per ha per annum. As the mining claim will only be worked between the months of April and September, the rate is applied for a period of 6 months per year, not a full calendar year.

52. [52]
    In awarding compensation only for the six month period the mining claim is worked I do so on the basis of the evidence that the area of the mining claim will be unoccupied in the months January to March and October to December each year, and that there is no plant or equipment, temporary or permanent structures, fencing, or other obstacles to the full use and access by Blue Bay Tas to the mining claim area during those months.

53. [53]
    Annual compensation under s 85(5) MRA for diminution of the use made, or which may be made of the land, is $70 per ha (7.3 ha) for six months, (rounded) $255 paid annually.

54. [54]
    Blue Bay Tas is also entitled to an additional amount to reflect the compulsory nature of the action taken pursuant to s 85(6)(e) MRA.^[2] That amount shall be 10% of the aggregate amount determined under s 85(5). 

55. [55]
    In addition, I think it is reasonable that the annual compensation be indexed to the Consumer Price Index (CPI).^[3] 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 MC300437 compensation payable will be (rounded) $280 ($255 plus $25). If CPI was negative, compensation would remain at the rate in the previous year, that is, it would not decline.

56. [56]
    I considered also awarding compensation for other loss or expense arising, being the need for inspections of the mining claim area by the landholder from time to time, particularly in relation to their environmental and biosecurity concerns. However, while conscious of the issue I did not have sufficient evidence to quantify what compensation would be appropriate.

Orders

1. In respect of the application for MC300437, compensation is determined in the amount of (rounded) Two Hundred and Eighty Dollars ($280) per annum representing the diminution of the use made or which may be made of the land ($255 plus 10%); and

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 MC300437 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development.

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 MC300437 by the Department of Natural Resources and Mines, Manufacturing, and Regional and Rural Development.