The State Government has standardised the ground water
"make good" obligations applying to mining and gas
Previously, there have been different approaches under the
mining and gas legislation when a bore is adversely affected by a
mining or gas project.
As the gas industry developed in Queensland, the Water Act
2000 was amended to include:
the need for an underground water impact report and baseline
assessments to be carried out for landholders' bores;
ongoing reporting requirements; and
importantly, an obligation on a gas tenement holder to enter
into "make good" agreements with landholders whose bores
would be adversely affected.
Generally, "make good" agreements can be used to
ensure that a landholder is provided with compensation from a
tenement holder by way of a replacement bore, compensation or a
mechanism to purchase the landholder's land if the volume or
quality of water drawn from a landholder's bore diminishes.
Such agreements can be used to ensure that the rights of
landholders are established before the development of the
However, the obligations set out in the Water Act 2000
only applied to tenements issued under the gas legislation and did
not apply to mining projects. Under the mining legislation,
tenement holders were instead required to obtain water licences for
the use of water associated with the mine project and were not
required to enter into "make good" agreements in
Earlier this year in the case of Hancock Coal Pty Ltd v
Kelly and Department of Environment and Heritage Protection (No
4), the Land Court imposed additional "make good"
obligations on a mining tenement holder by expanding the scope of
the Environmental Authority to include additional bores which were
not originally caught by it. This practice of "make good"
agreements being included as a condition of an Environmental
Authority had become commonplace and the Court's decision
highlighted the inconsistency between the approaches seen in the
gas industry and the mining industry on the same issue.
The new amendments to the Water Act 2000 make both
mining and gas tenement holders subject to the same "make
good" requirements and provide the Land Court with clear
jurisdiction upon which to deal with "make good"
agreements between gas or mining tenement holders and
Thynne + Macartney welcomes the amendments which will commence
early in 2015 and has significant experience in assisting
landholders to negotiate "make good" agreements.
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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