What sort of documents do I need to have and how much notice should I get?
The current land access laws distinguish two different categories of resource activity based on the potential impact on a landholder's business and land use. Either 'preliminary' or 'advanced'.
'Preliminary' activities are those where the impact on the landholder's business or land use is likely to be nil or negligible. Examples include: walking the land, taking soil samples or survey pegging. In this case, the resource company must first provide the landholder with an Entry Notice at least 10 business days before coming on the land.
This notice must include:
- a description of the land proposed to be entered
- the period when the land will be entered (the entry period)
- the activities proposed to be carried out (you must ensure the activities are very specifically described)
- when and where the activities proposed are to be carried out
- contact details for the relevant resource company.
The first entry notice must include:
- a copy of the relevant resource company document – its mining tenement
- a copy of the Land Access Code (a uniform document that outlines how the company must conduct itself in its activities on the land)
- a copy of the relevant environmental authority's documentation.
Under all resource laws, the entry period may be longer if agreed in writing by the parties.
A common mistake is to permit resource companies to conduct advanced activities on your land when it has only provided an Entry Notice. Remember, Entry Notices are only for nil or negligible impact activity upon your land use or business.
'Advanced' activities are those activities that are likely to have a significant impact on the landholder's business or land use. Examples include constructing a track or access road, constructing a camp,clearing vegetation or drilling on the land. A resource company, its staff or agents, cannot enter private land to conduct 'advanced' activities unless the resource company has entered into one of the following with the landholder:
- a Conduct and Compensation Agreement (CCA)
- a Deferral Agreement; or
- the matter has been referred to the Land Court for determination.
A resource company will generally agree to pay your reasonable legal costs of negotiating and entering into a CCA or Deferral Agreement. It will not agree to pay your Land Court legal bills which could run at about $5000 or more per day over days or weeks of court argument involving expert witnesses.
CCAs and Deferral Agreements when signed are legally binding contracts between the resource company and the landholder intended to provide compensation to the landholder for the impact of authorised activities undertaken on the land.
A Deferral Agreement permits a resource company to enter the land and commence the activity ahead of a CCA being agreed at a later date.
Current land access laws permit the resource company to utilize unreasonably short minimum negotiation periods in which the landholder must agree a CCA, by first giving the landholder "Notice of Intention to Negotiate" which often specify a short negotiation period, as little as 20 business days. The resource company may then use a process that was not intended by the current law to work against you. If you don't agree the CCA within that specified time, the resource company may push you into an alternative dispute resolution process, either a "conference" or dispute resolution hearing convened by the Department of Employment, Economic Development and Innovation. If that fails, you can be forced by the resource company to the Land Court. The resource company will not pay your reasonable legal fees incurred in these processes. The Department will usually not award legal costs of the conference or dispute resolution to you.
This process was intended as a landholder safeguard, but we see resource companies using the process to push landholders into these dispute resolution processes and as a result, into a Deferral Agreement (by which, when signed, the dispute resolution may be avoided).
If the Department considers that the resource company is being vexatious or is unreasonably denying a landholder adequate negotiation time, the Department or the Mining Registrar will take up your complaint with the resource company, but this won't really slow time down. This expensive process should be avoided.
It's frightening how quickly the resource company may push you into the Land Court. Big international companies can generally absorb litigation costs better than the landholders with whom they deal.
Why you should engage with your lawyers early
You can see from even this basic information that the process is complicated.
Yes, CCAs and Deferral Agreements are in standard template forms, but these forms need to be heavily customised to adequately describe the resource company activity, compensatable items and value, land rehabilitation and environmental care issues.
The effect this activity may have on your stock, crops and water can be significant and these agreements must be written so as to minimise those risks, force the resource company to fix such problems and compensate you in the activity period. Sometimes the dollar value of compensation needs to be deferred in the CCA until the activity affects are known.
The resource companies do these negotiations all day every day and are skilled in negotiation and hold significant psychological advantage and experience in the way they go about these processes.
Hence the need for the land owner to be represented by legal experts who operate in this space.
Always keep in mind, that unlike other parts of the world, you don't own these resources under your land – the State Government does and the Government is entitled to the royalties earned from the extraction, not you. You are legally only entitled to be compensated for the disturbance to your use of the land and business upon it.
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.