Australia: New Land Access Ombudsman to take referrals of disputes about CCAs and make good agreements

Last Updated: 11 June 2017
Article by Mark Geritz

Most Read Contributor in Australia, October 2017

The Land Access Ombudsman would be an independent body to investigate and make recommendations on resolving disputes involving a conduct and compensation agreement or a make good agreement.

The new Land Access Ombudsman Bill 2017, which is currently the subject of a public inquiry, seeks to result in a more timely resolution of disputes related to Conduct and Compensation Agreements and Make Good Agreements. Only time will tell whether the objectives of the Bill will be met or whether this will simply be another burden on the energy and resources industry in Queensland. Submissions are due by 4.00pm, Friday 23 June 2017.

If the Bill is passed, the Office of the Land Access Ombudsman will be established, and a Land Access Ombudsman (LAO) will be appointed to provide owners and occupiers of private land, bore owners and holders of a resource authority, with an independent body to investigate and make recommendations as to how to resolve disputes of an alleged breach under a conduct and compensation agreement (CCA) or a make good agreement (MGA).

Although these recommendations are not binding on the parties, they can be used as evidence in subsequent Land Court proceedings and the LAO also has broad powers to make recommendations to relevant regulators in respect of breaches of resource authorities and offences under certain resources Acts.

The Bill also operates to save certain transitional provisions in the Mineral and Energy Resources (Common Provisions) Transitional Regulation 2016, which would have otherwise expired in September 2017.

Referring a land access dispute to the LAO

A party to either an CCA or an MGA may refer a "land access dispute" to the LAO after it has made reasonable attempts to resolve the dispute. Importantly, the Bill provides that a party who refers a dispute to the LAO does not incur civil liability for breach of a dispute resolution condition in a MGA or CCA.

A land access dispute referral may be made even if the CCA or MGA was entered into, or the land access dispute arose, before the commencement of the Bill.

The LAO must refuse to accept a referral if:

  • the dispute relates to a matter that the LAO is not able to accept a referral of (for example, if the relevant CCA or MGA has not yet been entered into or, if entered into, the relevant cooling off periods have not expired);
  • the referring party has not used reasonable attempts to resolve the dispute. Importantly, the LAO may be satisfied that reasonable attempts have been made, regardless of whether the referring party has used or attempted to use a dispute resolution process in the relevant CCA or MGA;
  • the referral is trivial, frivolous, vexatious or not made in good faith; or
  • the investigation of the matter the subject of the referral is unnecessary or unjustifiable.

Investigation of land access dispute

If a land access dispute is accepted by the LAO, the LAO must, as soon as practicable, give an investigation notice to the other party to the dispute.

The LAO determines the procedure for investigating a land access dispute. Where practicable, the procedure must involve a non-binding alternative dispute resolution process.

The LAO may also hold meetings, conduct interviews, make inquiries with relevant technical experts and government entities and advise parties about the merits of their position. Although the rules of evidence do not apply, the LAO must act in a way that is fair, reasonable, just and timely, and comply with natural justice.

If requested by the LAO, parties to the dispute must provide documents or information to the LAO unless:

  • it is not relevant to the investigation;
  • it is not in the relevant party's possession or control, despite the party having taken all reasonable steps to obtain it;
  • it would incriminate the party or expose it to a penalty (only applicable to individuals and not corporations);
  • it is protected by legal professional privilege or is a communication of an admission made in the course of negotiations to settle the dispute prior to the LAO's involvement.

A party may be legally represented at a meeting with the LAO, provided it obtains the LAO's prior permission, which cannot be unreasonably withheld. Parties bear their own costs of representation for such a meeting.

The LAO also has powers to access land the subject of a CCA or MGA in certain circumstances.

Actions that can be taken by LAO

Notice of outcome of investigation

Once the investigation is finalised, the LAO must provide the parties with a draft notice about the investigation and invite them to make submissions.

The LAO must then (after having regard to the parties' submissions) provide the parties with a written notice detailing the resolution of the dispute by the parties or, failing a resolution, advising the parties of the merits of their respective positions and recommending how the dispute could be resolved. This notice, although not binding on the parties, will be admissible as evidence in Land Court proceedings related to the dispute under the Land Court's new jurisdiction to hear matters relating to a breach of a CCA. The notice is also admissible in Land Court proceedings relating to disputes about MGAs under the Water Act 2000.

Other recommendations that LAO may make

If the LAO reasonably suspects a tenure holder (who is a party to a CCA or MGA):

  • has committed or is likely to commit an offence against a "Resource Act"; or
  • has breached, is breaching, or is likely to breach, a condition of a resource authority that relates to land access,

the LAO may give a notice to the chief executive of the Department of Natural Resources and Mines, outlining the breach and recommending its investigation. Before giving that notice, the LAO must invite the relevant tenure holder to make submissions to the LAO and must have regard to those submissions.

The same process applies to offences or possible offences under the Water Act 2000, Chapter 3 and the Environmental Protection Act 1994.

The LAO also has the ability to advise the chief executive of a department, or a government entity, about systemic issues relating to access to land arising from 1 or more land access dispute referrals.

Other aspects of the Land Access Ombudsman Bill 2017

Disputes about CCAs

The Bill amends the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCPA) to provide that a party may apply to the Land Court for an order about an alleged breach of a CCA. The explanatory notes to this amendment note that this amendment enables the Land Court to now deal with disputes throughout the lifecycle of a CCA (including its negotiation).

Saving transitional provisions

To ensure provisions in the Transitional Regulation are maintained, the Bill amends relevant sections of the MERCPA and includes additional transitional provisions in the Coal Mining Safety and Health Act 1999, the Mineral Resources Regulation 2013, and the Petroleum and Gas (Production and Safety) Act 2004 (PAG Act).

Key amendments include:

  • clarification that, for relevant resource authorities (including ATPs and PLs under the PAG Act) that were applied before, and granted before or after, the commencement of Chapter 3 of MERCPA, the new restricted land entry provisions do not apply; and
  • an extension of the transitional period for arbitration of disputes about the making of a joint interaction management plan, achieved by amending the PAG Act, Coal Mining Safety and Health Act 1999, and the Mineral Resources Regulation 2013.

Next steps - get involved

The Bill has been referred to the Infrastructure, Planning and Natural Resources Committee for inquiry, which is taking public submissions until 4.00pm, Friday 23 June 2017, with a reporting date of 7 August 2017. Please contact us if you'd like to know more about the Bill's effect on your business, or would like help in writing a submission.

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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