Common Provisions Act – implications for land access and compensation
Oct 2014 |
The Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (Common Provisions Act) was passed by the Queensland Parliament last month. The Common Provisions Act has now received assent and will come into effect on a proclamation date yet to be fixed.
The passage of the Common Provisions Act represents a key milestone in the Government’s Modernising Queensland Resource Act Program, a self-proclaimed flagship reform initiative for the resources industry. The ultimate goal of the program is to consolidate various legislative instruments1 that currently govern different elements of the Queensland resources sector (including mining, oil and gas, geothermal energy and greenhouse gas storage activities) with a single Act.
In addition to creating the key legislative instrument, the Common Provisions Act will repeal various parts of the existing legislative regime, as the first stage of a three stage implementation process.
New land access framework
One of the key changes advanced by the Common Provisions Act is the replacement of the existing land access and compensation framework for resources projects.
In developing the new framework, the Government has sought to implement a number of recommendations coming out of the 2013 report by the Land Access Implementation Committee, including:
- To permit landholders to opt out of the requirement for conduct and compensation agreements prior to advanced activities being undertaken on their land.
- To require conduct and compensation agreements and opt out agreements to be noted on the title of relevant properties.
- To expand the Land Court’s jurisdiction to review matters of conduct, in addition to compensation.
Ability of landholders to opt out
The Common Provisions Act has retained the broad structure of the existing land access framework in Queensland, which is based around a general requirement for resource authority holders to enter into conduct and compensation agreements (CCA) with the owners and occupiers of private land before advanced activities can be undertaken on their property.
When the Common Provisions Act comes into effect, owners or occupiers will be able to opt out of the CCA negotiation framework.2 While an Opt Out Agreement (OOA) will allow a resource authority holder to undertake advanced activities on a property without a CCA, it will not negate the authority holder’s liability to compensate relevant owners and occupiers.
OOAs will be subject to a 10 business day cooling off period during which either party may give notice to the other terminating the arrangement. If the agreement survives the initial cooling-off period, an OOA may continue for up to the term of the relevant resource authority. Otherwise, it will end in accordance with its terms or when the parties negotiate another agreement.3
The agreement must be in writing and comply with the prescribed requirements, details of which are yet to be released. The Department of Natural Resources and Mines is developing a template OOA.
Importantly, OOAs will be binding on the parties’ successors and assigns and must be noted on the title of affected land.
Noting CCAs and OOAs on title
Resource authority holders will be required to register the existence of a CCA or OOA on the title of the relevant property within 28 days after entering into the agreement. The authority holder must also take steps to request the removal of the particulars of the agreement from the title within 28 days of the end of the agreement. The Common Provisions Act does not contemplate or require registration of a full copy of each CCA, rather merely a notation on the relevant title of the existence of a CCA and its particulars (including parties to the agreement).
Existing CCAs will also need to be registered. Resource authority holders must lodge details of continuing agreements with the Department’s Land Titles Registry within 6 months of the commencement date of the Common Provisions Act.
The requirement to register and remove particulars of CCAs and OOAs from the relevant titles is stated to be a condition of the relevant resource authority.
Restricted land
Resource authority holders will need to obtain consent to enter restricted land and carry out activities within 200 metres of those zones. Residences, schools and childcare centres and certain farms4 will be among the areas5 classified as restricted land under the Common Provisions Act. Importantly, restricted areas will only apply to tenures granted after the new Common Provisions Act commences.
Under the regime, multiple homesteads may be classified as restricted land, but they must be in existence before an application for production tenure is made. Restricted areas may be created any time during the term of an exploration permit.
Expansion of the jurisdiction of the Land Court
The Common Provisions Act grants the Land Court significantly broader jurisdiction to hear and determine matters relating to access to private land by resource authority holders in Queensland.
If negotiations for a CCA have been unsuccessful, the Common Provisions Act6 allows a party to apply to the Land Court for it to decide the resource authority holder’s obligations or limitations when carrying out authorised activities on the land. In hearing such an application, the Land Court may ‘have regard to the behaviour of the parties in the process leading to the application’.7 The Land Court may also determine whether proposed resources activities will interfere with the landholder’s lawful activities.8
While the precise implications of these new powers are unclear, the Common Provisions Act provides the Land Court the power to order that a party not engage in particular conduct,9 or to order that the parties engage in further dispute resolution.10
The Land Court has also been given jurisdiction to make determinations as to whether land is restricted land.
Periodic notices
The Common Provisions Act requires periodic notices to be given to each owner and occupier during the period of access to private land.
Further information such as the required timing of such notices, and the details for inclusion, are to be prescribed by regulation. It is likely these notice requirements will mirror the current regime, which requires proponents to notify landholders about the activities carried out on their land during the entry notice period.
Compensatable effects and occupiers
Relevantly, the existing key definitions of ‘compensatable effects’ and ‘occupiers’ have been retained in the Common Provisions Act.
Conclusion
The Common Provisions Act is the first step towards harmonising resources legislation in Queensland. Two more bills are expected to be introduced to Parliament and resource-specific regulations will be developed over the four-year Modernising Queensland Resource Act Program. Carter Newell’s resources team will be closely monitoring developments in this regard and will provide another update when the new land access requirements come into effect.
1 The Acts to be consolidated under the Program are Mineral Resources Act 1989, Petroleum and Gas (Production and Safety) Act 2004, Petroleum Act 1923, Greenhouse Gas Storage Act 2009,Geothermal Energy Act 2010.
2 Section 45 of the Common Provisions Act 2014 (Qld).
3 A Deferral Agreement, Conduct and Compensation Agreement or another Opt Out Agreement.
4 Where areas are used for aquaculture, intensive animal feedlotting, pig keeping or poultry farming.
5 Other restricted areas include places of worship, hospitals, libraries, cemetery or burial place, and buildings used for businesses or other purposes if it cannot be easily relocated and is unable to coexist with resource activities.
6 Common Provisions Act 2014 (Qld) s 96.
7 Ibid s 96(4)(a)
8 Ibid s 98(2)(c).
9 Ibid s 97(2)(b).
10 Ibid s 97(2)(c).