Following unsuccessful attempts in recent years, on 4
March 2015, Senator Larissa Waters introduced the
Landholders' Right to Refuse (Gas and Coal) Bill 2015
(Bill) to the Senate. If passed, the Bill would allow landholders
to refuse access for gas and coal mining activities on their land.
It would also ban the practice of 'fracking'
(hydraulic fracturing) for unconventional gas, including coal seam
gas, shale gas and tight gas.
According to Senator Waters' second reading speech, the Bill
aims to protect Australia's little good quality agricultural
land from inconsistent uses by allowing "farmers,
graziers, residents, local councils and native title holders to say
'no' to gas and coal mining on their land". It
will also reduce the risks the unconventional gas industry poses to
land, surface and ground water, air and climate by implementing a
ban on 'fracking' activities.
Landholders' right to refuse
The Bill seeks to establish an offence where a corporation
enters, or remains on, land for the purposes of engaging in coal or
gas exploration or exploitation activities (Gas or Coal
Mining Activities), unless:
the corporation has an ownership interest in the land; or
prior written authorisation from each person with an ownership
interest in the land is given.
In the Bill:
the term "land" includes land within the beds and
banks of streams, watercourses, inundated land; waters in, upon and
above land; and subterranean land;
a legal or equitable interest or a right to occupy land is an
"ownership interest". A mere right to engage in Gas or
Coal Mining activities is not an "ownership interest" in
the prior written authorisation must contain specified
information and is invalid if the corporation does not advise the
landholders in writing of their right to refuse authorization.
The landholder may bring proceedings at any time within 6 years
after the day on which the cause of action accrued. The maximum
penalty associated with the offence is $850,000.
The Bill would not apply to a gas or coal mining activity
undertaken before the Bill is enacted, even if the activity
continues after the commencement.
Ban on 'fracking'
The Bill attempts to outlaw hydraulic fracturing operations for
unconventional gas, including coal seam gas, shale gas and tight
gas. Fines of up to $8,500,000 would apply to companies found to be
in breach of this 'fracking' ban.
Third party rights would apply allowing "interested
person" including both Australian individuals and entities
whose interests have been, are or would be affected by the
'fracking' activities to bring proceedings seeking to
restrain 'fracking' activities. These third party rights
also apply to individuals or entities that have been engaged in
activities for the protection or conservation of, or research into,
the environment in a certain timeframe as provided by the Bill.
Bill's current status
The Bill was referred to the Senate Environment and
Communications Legislation Committee on 5 March 2015 where a report
is due by 7 August 2015. Public submissions can be made until 29
Productivity Commission report on gas activities
In contrast to the efforts of the Greens to restrain gas
activities, the Productivity Commission recently released its
research paper "Examining Barriers to More Efficient Gas
Markets" which identifies the substantial economic benefits of
the industry and supports its growth.
Although the paper recognises that the rapid growth of the gas
industry has exposed some sharp conflicts between existing
landholders, local communities and the gas industry, the
Productivity Commission is of the opinion that such conflicts are
decreasing as more gas companies have increased their efforts to
obtain a 'social licence to operate' at an early stage of
In addition, the Productivity Commission supports current
compensation regimes as the best alternative to deal with land
In relation to community concerns about environmental and public
health risks of coal seam gas activities that have led to CSG
moratoria in Victoria and New South Wales, the Productivity
Commission suggests that the risks could be better managed through
a well regulatory regime and better monitoring and enforcement,
rather than moratoria. In its opinion, the expected benefits of the
moratoria must be weighed against their expected costs which
include higher gas prices for users and reduced royalty and
taxation revenue for governments.
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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