Australia: Spotlight on Land Access Changes in Queensland

Last Updated: 19 January 2013
Article by David Skerrett

Introduction

On 14 December 2012 the Minister for Natural Resources and Mines released a statement regarding the overhaul of land access laws in Queensland. The release highlighted the Government's Six Point Action Plan "to strengthen the relationship between two of Queensland's most economically important sectors" being the agricultural and resource sectors.

The statement directly refers to the recently released "Queensland Government Response to the report of the Land Access Review Panel" (Government's Response) dated December 2012, which addresses the matters raised in the report issued by the Land Access Review Panel of February 2012 (Panel Report). The Panel Report called for 12 recommendations for consideration by the Government to address concerns raised by stakeholders since the Land Access Framework was established in December 2010.

Report of the Land Access Review Panel (Panel Report) – February 2012

The Land Access Framework was established in 2010 under the then Bligh Government as a mechanism to foster improved relationships between the agricultural and resource sectors and provide greater regulation of private land access for the purposes of exploration and production activities within the mining sectors across Queensland.

The Land Access Framework has provided a regime for land access and compensation for all resource tenements and authorities, however, excludes mining leases which are separately dealt with under the Mineral Resources Act 1989.

The purpose of the framework was to balance the interests of the agricultural sector whilst providing greater consistency and certainty for the resource sector and included:

  • a requirement that all resource authority holders must comply with a single Land Access Code;
  • an entry notice requirement for "preliminary activities" ie those that will have no impact or only a minor impact on landholders;
  • a requirement that, subject to certain exemptions, a Conduct and Compensation Agreement (CCA) be negotiated before a resource authority holder enters a landholder's property to undertake "advanced activities" ie those likely to have a significant impact on a landholder's business or land use;
  • a graduated process for negotiation and resolving disputes about agreements which ensures matters are only referred to the Land Court as a last resort; and
  • stronger compliance and enforcement powers for government agencies for breaches of the Land Access Code.

Following the implementation of the Land Access Framework, the former Government undertook to review the policy and on 30 November 2011, established an independent Land Access Review Panel (the Panel). The Panel consisted of representatives from the agricultural, rural and resource sectors.

The Panel was appointed to review the effectiveness of the Land Access Framework against the original policy objectives. These objectives were to:

  • facilitate improved relations between resource companies and landholders;
  • provide a consistent, transparent and equitable process to facilitate access to private land for resource exploration and development;
  • provide certainty to landholders and resource companies in terms of their rights and obligations in relation to land access for exploration and development;
  • define a clear and consistent process that brought resource companies and landholders together to negotiate agreed terms for conduct of resource activities and compensation; and
  • provide clear dispute resolution, compliance and enforcement processes and powers, with legal proceedings considered only as a last resort.

The Panel undertook targeted consultation with stakeholders affected by the Land Access Framework, including key resource and agricultural peak bodies, landholders, resource companies and other interested parties and a broad cross section of these affected parties were interviewed by the Panel.

The Panel identified a series of recommendations for implementation.

The Panel's Recommendations

The recommendations made by the Panel included:

  • Recommendation 1 – Government notify all landholders covered by a tenure or authority at the time of grant.
  • Recommendation 2 – Government review existing information, guidelines and education programs, and develop new material and programs that are better targeted to appropriate audiences.
  • Recommendation 3 – Government establish an independent panel to determine disputes arising in negotiating a Conduct and Compensation Agreement (CCA).
  • Recommendation 4 – Government implement a mechanism to support landholders and resource companies to develop and use a detailed work plan describing both parties' activities on the land.
  • Recommendation 5 – Government appoint an independent third party or organisation to clarify what are "reasonable and necessary professional costs to negotiate a CCA" initially by establishing a database of legal and other professional fees.
  • Recommendation 6 – Government work with the resource and agricultural sectors to develop "standard conduct and compensation agreements" by industry for coal, coal seam gas and minerals.
  • Recommendation 7 – Government progress the development of a mechanism to enable notification of CCAs on land titles.
  • Recommendation 8 – Government introduce a way for parties to opt out of the requirement to sign a CCA for advanced activities.
  • Recommendation 9 – Government review the scope of "compensatable effects".
  • Recommendation 10 – Government review technical issues to make improvements in the process.
  • Recommendation 11 – Government review the Land Access Framework in 3 years.
  • Recommendation 12 – That the Government note the various out-of-scope issues raised.

Queensland Government Response to the Report of the Land Access Review Panel – December 2012 (Government's Response)

This report provides a response to the Land Access Review Panel's report of February 2012 and focuses on key improvements to be made to the Land Access Framework primarily through a "six- point action plan".

Government's Six-Point Action Plan

The Six Point Action Plan sets out short to medium term actions for both the Government and stakeholders to be implemented as a matter of priority. The 6 priority actions include:

  • Item 1 – Conduct and compensation:
    1. Review heads of compensation to ensure no cost or erosion of landholders' rights; and
    2. Land Court jurisdiction expanded to include conduct.
  • Item 2 – A single Land Court accredited form of independent Alternative Dispute Resolution (ADR) integrated into the Land Court.
  • Item 3 – CCA's to be noted on the land title.
  • Item 4 – Parties can agree to opt out of the Land Access Framework (at the election of the landholder if both parties agree).
  • Item 5 – Development of standard CCAs for mineral, coal and coal seam gas industries in partnership with the resource and agricultural sectors.
  • Item 6 – Review and rationalise information sources into a single resource for landholders and resource companies.

In addition, the Government's Response notes the establishment of an Implementation Committee comprising members from Agforce, Queensland Farmers Federation, Queensland Resources Council, Australian Petroleum Production and Exploration Association, Association of Mining and Exploration Companies and the Gas Fields Commission to oversee the implementation of the action plan.

Summary of Government Response to Panel Recommendations – Key Changes

Response to Panel Recommendations 1 and 2

In response to Recommendations 1 and 2 of the Panel Report, the Government was supportive of the need for improved education and access to information, guidelines and educational programs as well as ensuring that landholders are notified at the time that a grant is made.

The Government noted that it had implemented the Local Area Mining Reports Service to allow parties greater access to information regarding permits applied for and granted within areas and has provided improved spatial information services to allow for general searches of resource tenures and other significant spatial layers.

The Government acknowledged and supported the need for redrafting of some existing materials and guidelines and providing greater clarity of parties' rights and entitlements. It noted the need for shared responsibility and that the redrafting and development of materials should be provided by both the Government as well as key partners such as the Gas Fields Commission and other peak bodies.

It committed the Government and industry partners to deliver improved information sources by end of 2013.

Response to Panel Recommendation 3

In responding to the Panel's recommendation for the establishment of an independent panel to determine disputes arising in the negotiation of a CCA, the Government acknowledged that the intent of this recommendation was the need to provide a simpler and faster way to facilitate a definitive resolution for land access disputes.

The preferred approach that the Government considered would best respond to this recommendation was for an ADR framework that provided for an accredited form of ADR which would be recognised by the Land Court and that could integrate into that process. It considered that this would be independent of Government and would remove Department conference or other non-accredited forms of ADR prior to a referral of a matter to the Land Court in respect to the negotiation of a CCA. The response noted the need for further policy work and legislative amendment to determine the most appropriate form of ADR framework that would improve certainty of outcome. It gave consideration to the New South Wales arbitration model as a possible format for this ADR framework.

It also noted the requirement for an appropriate funding model to be considered and the need for legislative amendment to the relevant resources legislation to expand on the existing jurisdiction of the Land Court to include conduct within its proceedings.

The report identified that a single accredited ADR framework to respond to this recommendation would be delivered by the Government by mid 2013.

Response to Panel Recommendation 4

In response to Recommendation 4 for the implementation of a mechanism to support landholders and resource companies to develop and use a detailed work plan for describing both parties' activities on the land, the report noted that there is an ongoing need for flexibility as to the format and content of plans to cater for a variety of circumstances and the changing nature of activities over the term of the tenure.

On this basis, the Government considered that this should be implemented through improved awareness and education programs and materials to inform all sectors and stakeholders as to the nature of activities that are likely to occur on a landholder's property in line with Item 6 of the Government's action plan.

Response to Panel Recommendation 5

The Government supported the intent of the Panel's recommendation that the Government appoint an independent third party or organisation to clarify what are "reasonable and necessary professional costs to negotiate a CCA" including the establishment of a database of legal and other professional fees.

The Government noted that this should be assessed as part of a review of the 'compensatable effects' in reference to Recommendation 9 of the Panel's report and reiterated the need for flexibility to allow for complex agreements.

Response to Panel Recommendation 6

The Government's Response to Recommendation 6 of the Panel's Report with respect to working with the resource and agricultural sectors to develop standard CCAs by industry for coal, coal seam gas and minerals, acknowledged the need for further work on tailored templates or model agreements for each sector. It considered that these items should be prepared as part of a partnership model between the peak bodies of the resource and agricultural sectors.

The response also acknowledged that issues had been raised with the current CCAs and noted the need to place a greater emphasis on conduct and early information exchange between parties, as it had been noted that in some cases, the full impacts of the agreements often far exceeded that which had been initially agreed to by the parties. The Government was also conscious of the changing nature of activities over the term of an agreement and, therefore the need for review periods should be incorporated. It considered that CCA's should be drafted in plain English for simplicity, noting however that there was not a "one size fits all approach" for negotiation and compensation, and that the current CCA should be used as a guide.

Through its Action Plan, template CCAs for the mineral, coal and coal seam gas industries are to be developed through partnership between the Government and industry stakeholders, committing to the delivery of template CCAs by mid 2013.

Response to Panel Recommendation 7

The Government supported the Panel's recommendation for the development of a mechanism to enable notification of CCAs on land titles, noting that the current resources legislation requires a CCA or Land Court decision to bind successors in title and assigns to the area of the relevant tenement.

Through the Panel's consultation process, it was generally supported, that the existence of a CCA should be notified on the title, however, considered that the terms or conditions of the CCA should remain undisclosed. The Government considered that noting the CCA on the title would allow a party searching the land to be aware of an existing CCA and give a party the opportunity to approach the relevant party to obtain a copy of the agreement. It considered that the level of confidentiality of the CCA would remain up to the agreement of the parties.

In order to implement this action, the response noted the need for legislative amendment and, as part of its Six Point Action Plan, committed to delivering these changes by mid 2013.

Response to Panel Recommendation 8

The Government, in its report, supported the Panel's recommendation that there should be a mechanism to allow parties to opt out of the requirement to sign a CCA for advanced activities. It considered that the intent of this recommendation was to simplify the process for two willing parties "who do not wish to sign a formal Conduct and Compensation Agreement and supports a mechanism that will provide greater flexibility to parties who are willing to strike an agreement outside a structured regime".

The Government favoured a flexible process to allow willing parties, at the election of the landholder, to agree to opt out of a CCA.

The Government's Response noted that this issue was most pressing in relation to mineral and coal exploration in the more remote parts of the State and was a key consideration in the implementation of this recommendation. It noted the contrasting stakeholder opinion regarding this recommendation. The majority of the agricultural sector did not support it, whilst the resource sector was strongly in favour.

The Government reiterated that given the importance of the agreement in terms of enabling on-ground work to commence and that any agreement binds the landholder, it was necessary that some form of written agreement be in place, whether simple or detailed, and should be noted on the title pursuant to the implementation of recommendation 7.

The Government's response also provided some comfort to the agricultural sector, noting that the mechanism to opt out of a CCA "would not allow a company to sign away obligations to comply with the Land Access Code or to be accountable for compensation should an impact result in a compensatable effect".

It acknowledged the need for legislative amendment to implement this change and through its Six Point Action Plan committed to delivering the necessary changes by mid 2013.

Response to Panel Recommendation 9

The Government indicated support for the Panel's recommendation that there was a need for Government review regarding the scope of "compensatable effects". It acknowledged however the need for further policy and implementation work and considered that the compensatable items noted in the heads of compensation should be reviewed to determine:

  • how they should be quantified; and
  • the evidence required to substantiate claims.

In this regard, the Government also considered that "reasonable and necessary legal, accounting and valuation costs" should be undertaken in the review of compensatable effects which is consistent with its response to recommendation 5.

It further noted that legislative amendments would be required in order to implement this change, and as part of item 1 of its Six Point Action Plan, committed to review the heads of compensation in respect to both compensation and conduct by mid 2013. It specifically stated this would be carried out in a manner that would ensure that there was no erosion of landholder rights as part of this process.

Response to Panel Recommendations 10, 11 and 12

The Government's Response noted its support of the need to:

  • ensure that technical improvements are made to the process;
  • conduct periodic reviews of the Land Access Framework; and
  • address out-of-scope issues not specifically covered in the Panel's Report.

The Government made no formal commitments to deliver on any specific matters suggested by the Panel for these recommendations and considered that these items had been implicitly addressed through other proposed and current Government actions.

Conclusions

The Government's Response to the report of the Land Access Review Panel corresponds to the Newman Government's election commitment to reduce red tape and provides some further insight into the Government's strategy for managing the resource sector in Queensland.

The Six Point Action Plan identifies those items that will progress as a matter of priority by both the Government and industry partners, with the majority of the action items to be delivered by mid 2013.

Of particular interest is the Government's commitment to reviewing the heads of compensation and expanding the jurisdiction of the Land Court with respect to hearing matters concerning conduct in compensation which may have a significant impact on the current land access arrangements in Queensland. It is difficult at this time, given the limited detail provided, to effectively determine how these changes may affect both the rights and interests of landholders and resource companies.

The endorsement by the Government of the Land Access Review Panel's recommendation to allow parties, at the election of the landholder, the option of opting out of a CCA is significant and may receive resistance from the agricultural sector if this is implemented based on the feedback received to-date.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
David Skerrett
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.