Australia: Further progression of the overhaul process for the land access laws in Queensland

Last Updated: 26 March 2014
Article by Prue Harvey and Mark Geritz

Key Points:

The Committee recommended six changes, but the Government is yet to indicate whether it will accept any of them.

The Land Access Implementation Committee report on the Government Six Point Action Plan addresses reforms to the land access and compensation regime for all resource authorities (except mining leases) in Queensland.

The current regime

The current regime applies whenever a resource authority holder proposes to do "advanced activities" (anything beyond activities which will have little or no impact on the landholder's business or land use). The resource authority holder must negotiate a Conduct and Compensation Agreement (CCA) or deferral agreement or, if no agreement can be reached, progress through the prescribed negotiation and ADR stages before filing Land Court proceedings.

The reform process

In late 2012, the Department of Natural Resources and Mines (DNRM) announced plans to overhaul the legal framework governing land access and compensation arrangements between the holders of resource authorities (except mining leases) and landholders. These plans took the form of a Six Point Action Plan which, in February 2013, was presented to the Land Access Implementation Committee.

In August 2013 the Committee provided its report, which included detailed recommendations as to the development and implementation of the Plan. That report was officially released by the DNRM on 4 March 2014.

The recommendations of the Committee to each of the six action points are:

Action 1: Conduct and compensation

This action comprised two elements: a review of the heads of compensation and expanding the jurisdiction of the Land Court to cover matters of "conduct".

The report recommended that, given the continuing development of landholder and resource authority holder negotiation practice, it would not be advisable for the Government to intervene by further legislating on the heads of compensation.

The report further suggested that legislative change with respect to the jurisdiction of the Land Court was necessary to grant the Court power to make determinations on matters concerning conduct and behavioural issues, particularly when such issues arose during the negotiation process. This would also allow the Court to make determinations about the conduct terms and conditions that should form part of a CCA.

Action 2: Introducing a single accredited form of ADR process, independent of government, that is recognised by, and can be integrated seamlessly into the Land Court process without duplication of process.

The report suggested that a panel arrangement should be introduced to assist in providing parties with a choice of pre-vetted, independent ADR specialists with appropriate experience. It was stated that this would allow for more timely outcomes and begin to resolve the perception among landholders of a lack of independence and expertise on the part of some ADR conference facilitators, particularly departmental officers.

Action 3: Noting the existence of CCAs on title by resource companies

Legislative change was recommended to require an executed CCA to be recorded on the property title, including in the event that parties opt-out of negotiating a formal CCA. The costs and responsibility associated with the registration and removal of the CCA were to be borne by the resource authority holder.

Action 4: Parties being able to agree to opt out of the framework, at the election of the landholder, save for entering into a CCA to be noted on title

To the extent that it may provide flexibility where established relationships already exist, the report suggested the implementation of an opt-out policy which would allow the parties, at the election of the landholder, to opt out of the requirement of negotiating a CCA, subject to satisfaction of the Land Access Code and minimum key criteria.

Action 5: Development of standard CCAs for mineral, coal, and coal seam gas industries in partnership with the resource and agricultural sectors

This action was primarily aimed at developing separate template CCAs for mineral, coal, and CSG projects, with the option of adding other terms and conditions specific to the parties' individual circumstances. The paper does not indicate how the template CCAs are to differentiate between the industries.

Action 6: Review of stakeholder information sources, with the purpose of combining into a single, comprehensive and plain language resource for landholders and resource companies

The suggestion was to create a single repository of information about land access targeted towards the needs of landholders and resource authority holders.

Next steps

The Government has not yet indicated whether it will accept any of the recommendations. We will provide further updates as this develops. Other minor changes to the land access framework are proposed alongside changes to restricted land as we discuss in Drastic changes to restricted land proposed for Queensland mining and petroleum tenements.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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