Resource companies operating in Queensland are required
to negotiate compensation and access with each "owner"
and "occupier" of private land.
The definition of who is an "occupier" under
the Petroleum and Gas (Production and Safety) Act 2004
(P&G Act) was amended earlier this year in response to
criticism that the term was ambiguous. The result is an expanded
definition which has broadened the scope of "who" is
eligible to claim compensation from resource
The amended definition of "occupier" came into effect
on 22 March 2013. It states that an "occupier, of a place
means a person:
who, under an Act or a lease registered under the Land
Title Act 1994, has a right to occupy the place, other than under a
mining interest, petroleum tenure, licence, GHG authority or
geothermal tenure; or
to whom an owner of the place or another occupier under
paragraph (a) has given the right to occupy the
Following release of the Bill and its review, the definition of
"occupier" was amended from its prior definition by:
removing the reference to freehold land in subparagraph (a);
inserting the phrase "to whom an owner of the place"
at the beginning of subparagraph (b).
The amendment followed the recommendation of the Agriculture,
Resources and Environment Committee that it be made clear that an
owner of land could provide another party or entity a 'right to
The Queensland Government noted that the definition of
"occupier" in the original Bill adequately addressed this
proposal. However, for certainty, the Government amended the
definition to make clear that an owner of land could confer this
The Explanatory Notes to the Bill make it clear that the new
definition of "occupier" encapsulates the registered
owner of a property, family members, family trusts, partnerships or
companies associated with managing a rural business on either
freehold or leasehold land that have a "right to occupy"
under an Act. The Erratum to the Explanatory Notes further
clarifies this extended definition.
As such, the amendment broadens the scope of those
individuals who are eligible for compensation under the P&G
The definition now recognises business arrangements such as
family trusts, partnerships and companies associated with managing
rural business on both leasehold and freehold land.
Further, a person holding a right to occupy freehold land from
the owner whether or not pursuant to a registered lease, will
qualify as an occupier.
As such, a person will constitute an occupier under:
subparagraph (a) of the definition if that person derives
occupation rights under a registered Lease or under an Act;
subparagraph (b) of the definition if the owner or an occupier
(identified under subparagraph (a)) grants a person occupation
An occupier (pursuant to subparagraph (b) of the definition)
will not be able to subsequently grant a right of occupation.
RIGHT TO OCCUPY
When determining whether a party falls within the definition of
an "occupier" under the P&G Act, it is necessary to
consider whether the party occupies the land. At the core of the
definition of "occupier" is a person with a legally
enforceable right to occupy the land.
The term "occupy" is not defined in the P&G Act or
under the Acts Interpretation Act 1954 (Qld), but has both a common
law meaning in respect of land and a plain English dictionary
At common law, a person is an occupier of land if they have, or
have the right to, possession and control of the land and
"occupation" of the land is the right to physical
possession and control of the land. The English dictionary defines
the term "occupy" in the context of a place to mean
"reside in or be the tenant of". It can also mean
"to live, stay, or work in" or be physically present
Unfortunately, it is not clear which of these meanings should be
used in interpreting the term "occupier" under the
P&G Act and there is no statutory or judicial guidance on this
issue. In the absence of such guidance, each set of circumstances
will need to be considered having regard to the degree of
possession and control over the land held by the claimant.
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.
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