Australia: Common Provisions Act: What you need to do to get ready for its imminent commencement in Queensland

Clayton Utz Insights

Key Points:

The new Common Provisions Act affects land access, environmental approvals, overlapping tenements and the lease application process for Queensland mining projects.

The Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (CP Act) was passed on 9 September 2014 and is to commence on a date to be fixed by proclamation.

In this article, we値l summarise some of the key matters that industry will need to start doing now to get ready for the commencement of the CP Act, and what needs to be done once the Act has commenced.

Private land access

On-tenure private land access (all tenements other than mining leases, mining claims and prospecting permits)

The regime for entry on to private land under the CP Act is broadly consistent with the previous regime in the resource Acts.

However, the following are key additions to the regime in the CP Act that should be noted by industry:

  • there is a further obligation for a tenement holder to give periodic notices after the initial notice of entry has been given;
  • each owner and occupier of the land may, by agreement, opt out of a CCA or deferral agreement; and
  • a tenement holder who enters into a CCA or opt-out agreement will be required to give written notice of this to the registrar of titles to be reflected on title within 28 days of entering into the agreement. The registrar of titles will then be obliged to amend the title register so that a search will show the existence of the agreement (although we understand a copy of the agreement itself will not be searchable). The tenement holder will also have to notify the registrar of titles if the agreement ends, or if the land is subdivided such that the agreement no longer applies to a new lot.

The provision requiring registration of agreements will act retrospectively, meaning that any agreements existing when the CP Act commences will need to be notified to the registrar of titles within six months of the commencement. Accordingly it would be prudent to ensure that your company has easy access to all CCAs that it has entered into so you can do this within the required timeframes.

Off-tenure private land access (all tenements other than mining leases, mineral development licences, mining claims and prospecting permits)

The current off-tenure land access framework under the Petroleum Act 1923 and Petroleum and Gas (Production and Safety Act) 2004 (PAG Act) will now also apply to mineral and coal exploration permits (not mineral development licences).

Access agreements will be needed in order for a tenement holder to cross access land (or to carry out activities reasonably necessary to allow the crossing of the land). The access agreement will be needed with:

  • each occupier of the land, if the impact of the exercise of the access rights is unlikely to be permanent; and
  • each owner and occupier of the land, if the impact of the exercise of the access rights is likely to be permanent.

Restricted land

Proposed changes to the restricted land regime will only be relevant to resource authorities applied for and granted after the CP Act commences. For those resource authorities, this means a change in what constitutes restricted land (both in radius and characteristics).

Generally, the consent of the relevant restricted land owner or occupier will be required to carry out activities in the area of restricted land. However, for a mining lease, consent of the relevant owner or occupier is not necessarily required.

For a mining lease, if the Minister considers that the activities carried out on the restricted land cannot co-exist with the authorised activities under the lease, the lease holder needs to have entered into a compensation agreement under the amended section 279 of the Mineral Resources Act 1989 (Qld) (MRA) with the relevant owner or occupier relating to the restricted land.

One aspect that is not clear from the wording of the CP Act is whether, if the Land Court determines compensation including in relation to restricted land, consent is still required before activities can be done on that land. We understood that the Government's intention was that consent not be required in these circumstances but the drafting of the CP Act does not clearly reflect this. This should, in our view, be corrected to ensure that the CP Act works as intended.

For any resource authorities applied for before the CP Act commences, the previous restricted land provisions in the resources Acts will apply.

However, for mining leases granted before the commencement of the CP Act that were not granted over areas of restricted land because the consent of the landowner was not obtained, the lease holder may apply under section 275 of the MRA (additional surface area application) to add those areas of restricted land to the mining lease. If that application is granted, the new restricted land provisions apply to the relevant owner or occupier for the restricted land.

There is what appears to be an unintended omission for mining leases applied for before the commencement of the CP Act, and granted after the commencement, over areas excluding restricted land. For these leases, there is no transitional provision allowing the lease holder to apply under section 275 of the MRA to add the restricted land in to the lease (under the new provisions). This means that the lease holder would need to make an entirely new mining lease application over the areas of restricted land under the new provisions.

Mining lease and environmental authority objections

Coordinated projects (under either EIS process or new impact assessment report (IAR) process)

The CP Act also makes amendments to the EP Act to confirm that:

  • a submitter cannot request that any part of a submission to an EIS that relates to a Coordinator-General's condition be taken to be an objection to the environmental authority application; and
  • the grounds for an objection to an environmental authority cannot relate to a Coordinator-General's condition.

The CP Act amends the State Development and Public Works Organisation Act 1971 (Qld) to provide that a submitter under the Environmental Protection Act 1994 (Qld) (EP Act) to an environmental authority (EA) application may not request that its submission be taken to be an objection to the environmental authority application, if the Coordinator-General's report for the project states:

  • conditions for the proposed EA; and
  • the Coordinator-General is satisfied the conditions adequately address the environmental effects of the mining activity.

This will mean that there cannot be any objection or Land Court hearing in relation to the EA application. This advantage will be able to be used by some coordinated projects that are going through an existing approvals pathway, so the project managers for every such project should be closely checking the transitional provisions for the applicability of the new regime to their project.

Because of these changes, the Coordinator-General's process (whether EIS or IAR process) is likely to become a very attractive option as compared to the EP Act process.

Projects requiring site-specific EA application (not coordinated projects)

For mining lease applications that are not coordinated projects, but still require a site-specific EA application, the public notification of the EA application will only occur under the EP Act (if at all).

Anyone who makes a properly made submission on the Environmental Impact Statement (EIS) or EA application (if public notification occurs) will retain the right to request that their submission be taken as an objection to the EA.

Objections to a mining lease application

There will no longer be a concept of a Certificate of Application (COA) or a Certificate of Public Notice for a mining lease application. In addition, the application will no longer need to be publicly notified.

Instead, the Chief Executive will issue a mining lease notice for a mining lease application, which must be given to certain persons, including the owners of land underlying the application.

Only an "affected person" can object to the grant of a mining lease application. In this context, an affected person means:

  • owner of land the subject of the proposed mining lease ;
  • owner of land necessary for access to the land the subject of the mining lease ;
  • an owner of adjoining land; and
  • the relevant local government.

Further, each affected person may only object on certain limited grounds specific to the land that is impacted.

The transitional provisions for the new mining lease application objections regime are:

  • for an application with a COA issued before the commencement of the CP Act, the MRA, as in force immediately before the commencement of the CP Act, continues to apply to the COA;
  • for an application with a Certificate of Public Notice issued before the commencement of the CP Act, the MRA, as in force immediately before the commencement of the CP Act, continues to apply to it; and
  • for applications where objections were lodged before the commencement of the CP Act, the MRA, as in force immediately before the commencement of the CP Act, continues to apply to the objections.

In all other circumstances, the new provisions in the CP Act will apply.

Overlapping coal and CSG tenement regime

There is also a new overlapping coal and CSG tenures regime in the CP Act. There are some key provisions in the Act that require industry to take certain steps almost immediately after the commencement of the CP Act.

Existing mining lease applications

Where, at the commencement of the CP Act, a mining lease application has been made over an ATP, but not decided, the new regime will apply.

This will require the applicant to issue an "advance notice" to the ATP holder within 10 business days of the commencement, and seek to negotiate a joint development plan with the ATP holder. The advance notice is required to contain a large amount of information, including a proposed joint development plan.

If the parties are unable to agree on a relevant matter for a joint development plan, within six months after the provision of the advance notice, the applicant must apply for arbitration of the dispute.

This means that existing applicants to whom the new regime applies will need to prepare an advance notice and proposed joint development plan in readiness for issuing those to the ATP holder at the commencement of the CP Act.

Existing petroleum lease applications

Where, at the commencement of the CP Act, a petroleum lease application has been made over an EPC/MDL, but not decided, the new regime will apply.

This will require the applicant to issue a petroleum production notice to the EPC/MDL holder notice within 10 business days of the commencement.

Concurrent applications

Where, at the commencement of the CP Act, there are concurrent petroleum lease and mining lease applications, the petroleum lease applicant appears to be able to issue a concurrent notice to the mining lease applicant.

If the petroleum lease applicant does this, the intention of the relevant provisions seems to be that the petroleum lease applicant is then treated as a petroleum lease holder (instead of an ATP holder) for the purposes of applying the new regime (although the drafting of these provisions in the CP Act does not expressly state that this provision applies to a petroleum lease applied for before the commencement of the CP Act).

This would mean that the mining commencement date for the mining lease application must be 11 years after the date on which the advance notice was given (instead of 18 months), otherwise compensation is payable by the mining lease holder for accelerating those timeframes.

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