Australia: A new player in the land access space in Queensland: the Land Access Ombudsman

On 13 September 2017, the Land Access Ombudsman Act 2017 (Qld) (Act) received royal assent. However, the Act is yet to be proclaimed.

The Act aims to enhance Queensland's existing land access and make-good frameworks for mining and coal seam gas projects.1 It establishes a Land Access Ombudsman (Ombudsman) whose role is to:2

  1. investigate and facilitate the resolution of land access disputes;
  2. refer contravening conduct to appropriate government departments;
  3. identify and advise the government on systemic land access issues; and
  4. promote public awareness of the Ombudsman's functions.

The Act is in response to Mr Robert Scott's independent report in 2015 of the Gasfields Commission in Queensland, in which Mr Scott identified there was no avenue between negotiations and litigation to resolve disputes under conduct and compensation agreements (CCAs) and make good agreements (MGAs).3

CCAs set out the terms on which a mining and resource companies are entitled to access and conduct resource activities on a land owner's property. Under an MGA, a mining and resource company must make good the impacts to a land owner's water bore(s) caused by the resource company.

RESOLVING LAND ACCESS DISPUTES

The Ombudsman's primary role is to investigate land access disputes, ie disputes about an alleged breach of a CCA or MGA between the parties to the agreement.4 Parties must have made a reasonable attempt to resolve the dispute before referring the matter to the Ombudsman.5 Importantly, the Act excuses parties from any potential liability for breaching a dispute resolution clause by referring the dispute to the Ombudsman, meaning that parties cannot contract out of the Ombudsman's jurisdiction. However, the Ombudsman must refuse certain referrals, eg where the referral is frivolous, trivial, the dispute is the subject of investigation by a government department or where there are existing proceedings on foot.6

If the Ombudsman accepts the referral, they may tailor the procedure for their investigation of the dispute. The investigation must, if practicable, involve a non-binding dispute resolution process (eg, conciliation, mediation).7 The Ombudsman also has coercive powers, such as the power to require a party to give the Ombudsman particular documents or information or attend a meeting and answer questions.8 They may also enter and inspect the relevant land (subject to obtaining consent).9 In carrying out the investigation, the Ombudsman is not bound by the rules of evidence, although they must comply with natural justice and maintain confidentiality.10

At the end of the investigation, the Ombudsman issues the parties a notice with its proposed outcome. The Ombudsman must circulate a draft of the notice and invite the parties to make submissions, which must be considered before finalising the notice. The notice must include details of the resolution of the dispute if it was resolved by the investigation or, if the dispute was not resolved, advice about the merits of the parties' respective positions and recommendations.11

Although not binding on the parties, the notice is admissible in any future Land Court proceeding as evidence of the matters in the notice – even though the Ombudsman is not bound by the rules of evidence. Therefore, parties need to give proper attention to the investigation, because receiving a favourable notice from the Ombudsman could be an important part of a party's overall dispute resolution strategy. The notice could also save parties the time and expense of having to prove matters in the Land Court.

REFERRING CONTRAVENING CONDUCT TO GOVERNMENT DEPARTMENTS

In addition to the investigative and facilitative role, the Ombudsman may recommend to appropriate government departments the investigation of suspected contraventions of:12

  1. a 'Resource Act'13;
  2. chapter 3 of the Water Act 2000 (Qld); and
  3. the Environmental Protection Act 1994 (Qld).

The Ombudsman may only do so if they have accepted the relevant land access referral and reasonably suspect that the mining and resource company either has committed a contravention, is committing a contravention or is likely to do so.14 In addition, before making their recommendation, the Ombudsman must warn the resource company and invite it to make submissions, which the Ombudsman must consider before making their recommendation.15

ADVISING ON SYSTEMIC ISSUES

Over time, the Ombudsman will develop an expert understanding on the common issues relating to land access. Consequently, the Act empowers the Ombudsman to give advice, where appropriate, to chief executives of State government departments and other government entities on systemic issues arising from land access dispute referrals.16 To preserve confidentiality, any such advice must not include information which the Ombudsman is satisfied is confidential and the disclosure of which may be detriment to a person's commercial interests.17

REPORTING

The Ombudsman must also produce an annual report for each financial year on the operation of the Ombudsman's office, including details of, as a minimum, the land access dispute referrals made and investigated, notices at the end of those investigations and recommendations to investigate suspected contraventions.18 The report must not disclose the identity of a party to a land access dispute.19

CONCLUDING THOUGHTS

As Mr Scott envisioned, referring a dispute to the Ombudsman falls somewhere between negotiations and formal proceedings. Whereas negotiations may prove ultimately fruitless, the notice at the end of the Ombudsman's investigation (although not binding) may have serious legal significance. On the other hand, the Ombudsman's processes are less prescriptive than litigation and arbitration, which may avoid time delays and reduce costs. Additionally, the Ombudsman's role in assisting other government departments with regulatory compliance, advising on systemic land access issues and educating the government and public on land access generally, should result in future positive policy and legislative changes to the land access regime in Queensland. Indeed, the Act may be a precursor to further reform to what is an increasingly complex and contentious issue.

Footnotes

1Explanatory Speech, Land Access Ombudsman Bill, 1254.

2 Land Access Ombudsman Act 2017 (Qld) s 16.

3 http://www.statedevelopment.qld.gov.au/resources/report/gasfields-commission-review-report.pdf

4 Act s 7.

5 Act s 32(2).

6 See further Act ss 18 and 36.

7 Act s 41(1).

8 Act ss 42-43

9 Act ss 45-50.

10 Act s 41(4)-(5). Mining organisations have expressed concerns that the rules of evidence do not apply – especially given the power of the Ombudsman to recommend enforcement action.

11 Act s 51(6).

12 Act ss 53(2), 54(2) and 55(2).

13 Mineral Resources Act 1989; Petroleum and Gas (Production and Safety) Act 2004; Petroleum Act 1923; Geothermal Energy Act 2010; Greenhouse Storage Act 2009; Coal Mining Safety and Health Act 1999; Mining and Quarrying Safety and Health Act 1999.

14 Act ss 53(1), 54(1) and 55(1).

15 Act, ss 53(3), 54(3) and 55(3).

16 Act s 56(1)-(2).

17 Act ss 56(3)(c).

18 Act s 63(1)-(2).

19 Act s 63(3).

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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