A new avenue for land access disputes? Queensland to introduce Land Access Ombudsman

May 2017 |

On 23 May 2017, the Queensland Minister for State Development and Minister for Natural Resources & Mines, the Hon Dr Anthony Lynham, introduced the Land Access Ombudsman Bill (Bill).

The Bill is aimed at facilitating the timely resolution of disputes between parties to conduct and compensation agreements (CCAs) or make good agreements (MGAs), by appointing a land access ombudsman (LAO) to investigate and facilitate resolution of the dispute.

The Bill also proposes to amend the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) to provide the Land Court with jurisdiction to hear and make determinations about alleged breaches of CCAs. The Land Court already has the jurisdiction to hear disputes regarding MGAs.

The LAO

Under the terms of the Bill, a party to a CCA or MGA may refer an alleged breach of the agreement to the LAO, unless the breach is, or has been, the subject of a proceeding, arbitration or departmental investigation.

A referral to the LAO cannot be made about negotiations for a CCA or MGA.

While a party must have ‘made a reasonable attempt to resolve the dispute’ before making a referral to the LAO, the Bill expressly allows the LAO to accept a referral where agreed dispute resolution conditions have not been met. Further, section 34 of the Bill protects a referrer from liability for breach of a dispute resolution condition associated with making a referral.

The LAO may reject a referral if (among other things), the LAO is satisfied that:

  1. The referral is frivolous, vexatious or not made in good faith;
  2. The subject of the referral is trivial; or
  3. The investigation of the dispute is unnecessary or unjustifiable.

Investigation of dispute

If a referral is accepted, the LAO will give an investigation notice to the other party to the dispute. The notice will include details of the dispute, and when the LAO intends to start its investigation.

Under s 41 of the Bill, the procedure by which the LAO is to investigate the dispute must, if practicable, ‘involve an alternative dispute resolution (ADR) process to resolve the land access dispute’, although the ADR process must not bind the parties (which, presumably, would preclude arbitration).

In conducting the investigation, the LAO will not be bound by the rules of evidence, but must comply with natural justice. The LAO must also act in a way that maintains confidentiality. Pursuant to s 41(5) of the Bill, nothing said to the LAO during an ADR process during an investigation is admissible as evidence in a proceeding, without the person’s consent.

The LAO will have powers to compel a party to the dispute to give the ombudsman information or documentation, and also to require attendance at a meeting to answer questions about the dispute. A party is not obliged to disclose a document or information if it is protected by legal professional privilege, or it is an admission made during prior negotiations to settle the dispute.

A party may not have representation (legal or otherwise) at a meeting with the LAO without the leave of the ombudsman.

Notice of advice

After finishing the investigation, the LAO must give the parties a notice about the investigation. If the dispute is not resolved during the investigation, the notice will include:

  1. Advice about the merits of the parties’ respective positions in the dispute; and
  2. Recommendations about how the dispute could be resolved.

While the notice will not be binding on the parties, it will be admissible as evidence in a Land Court proceeding about the dispute.

Recommendation about offence or breach of authority

If, at any time after the LAO accepts a referral about a dispute, the ombudsman reasonably suspects that the authority holder has committed an offence under a Resource Act, the Water Act, the Environmental Protection Act, or has breached its resource or environmental authority, then the LAO may give the relevant regulator a notice of the possible offence or breach.

Before taking this action, the LAO will invite the authority holder to make a submission in response.

If the LAO identifies a ‘systemic issue’ relating to land access arising from multiple referrals, the ombudsman may give a written advice to the relevant regulator, or any government entity, about the issues identified.

Passage

The Bill has now been referred to the Infrastructure, Planning and Natural Resources Committee for detailed consideration.

The Committee will take public submissions on the Bill until 23 June 2017, and is required to report by 7 August 2017.

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