Queensland’s land access laws under review

In brief:

• Government to review the statutory heads of compensation under the resource Acts.
• Additional jurisdiction for the Land Court to determine matters pertaining to conduct.
• CCAs to be noted on title.
• ADR processes to be integrated into Land Court processes.
• Landholders to be able to 'opt out' of formal CCA negotiations.
• New template CCAs to be developed in consultation with industry stakeholders.
• DNRM to rewrite guidelines and publications to aid understanding of land access laws.

Introduction

The Queensland Government is set to overhaul the land access and compensation framework that governs how resource companies access private land for resource exploration and production.

The Newman Government has released a six-point action plan in response to the Land Access Review Panel's (the Panel) 12-month report card on the effectiveness of the regime, which found that the Land Access Framework had failed to achieve its objective of strengthening relationships between resource companies and landholders.¹  A copy of the Government's response to the report can be found by logging on to http://mines.industry.qld.gov.au/assets/native-title-pdf/qg-response-land-access-framework.pdf.

An implementation committee consisting of industry groups - including the Queensland Resources Council, Australian Petroleum Production and Exploration Association and the Association of Mining and Exploration Companies - will oversee the implementation of the action plan, which is expected to be completed in 2013.

Compensation under consideration

The cornerstone of the Government's plan will be to undertake a review of the compensation payable to landholders for resource activities carried out on private land.  The review will attempt to ensure landholders aren't out-of-pocket or have their rights eroded as a result of resource activity.  In addition, the Government will look at how compensation is to be quantified and what evidence will be required to substantiate claims.²

A rewrite of the compensation provisions is likely to expand the current heads of compensation to include landholder time and "diminution in lifestyle", in line with the Panel's recommendations³ and the LNP's pre-election commitment to achieve "fairer" compensation.⁴

Landholder's legal costs will also be examined as part of the review to clarify what professional costs are "reasonable" and "necessary" to negotiate a conduct and compensation agreement (CCA).  However, the Government has indicated that it will not be seeking to develop fee scales or a database of legal and professional fees, as suggested by the Panel.

The Department of Natural Resources and Mines (DNRM) has indicated that the review will be completed by mid-year.  It is likely the Government will introduce legislation to give effect to the changes.

Focus on formal dispute resolution

In addition to a review of the compensation regime, the Government plans to give the Land Court additional jurisdiction to determine matters of conduct.  It is also proposed that the negotiated access provisions of the various resource Acts will be amended to integrate alternative dispute resolution (ADR) into the Land Court process, similar to the arbitration model that applies in New South Wales.

Departmental conferences will be scrapped in favour of accredited forms of ADR, and it is possible that the GasFields Commission will play a part in determining who may preside over access and compensation disputes under the resource Acts.⁵

CCAs overhauled

New template CCAs will be developed by the Government in consultation with resource and agricultural industry bodies to encourage greater use of standard agreements.  While a standard CCA currently exists, the document has been criticised by both resource companies and landholders for its inability to accommodate different mining activities and land uses.⁶

Three model agreements will be developed to distinguish between coal, minerals and coal seam gas (CSG) activities.  Some of the matters that will be considered during the drafting process include:

• contractual information exchange obligations;
•  compensation reviews; and
• future liability and the landholder's ability to bring future claims against resource
  companies.⁷

 It is hoped that, when implemented, the use of model agreements will reduce the need for legal advice and help minimise costs.⁸

While the Government will encourage resource companies and landholders to take up the model agreements, the resource Acts will be amended to enable landholders to opt out of the formal negotiated access process set out in the resources Acts.⁹ Landholders will be able to waive legislative requirements relating to CCA content, minimum negotiation periods and graduated ADR in favour of informal negotiations between friendly parties.  Agreements will be required to be in writing in order to be binding on successors.

It is also proposed that the existence of a CCA will be noted on the title to the impacted land.  The Government has confirmed that a CCA will not be required to be deposited with the Land Titles Office in order to be registered, so as to prevent the agreement being made publicly available.  Persons who wish to obtain a copy of a CCA will still have to approach the landholder or the resource company directly.

What's next

Targeted implementation for the review of the heads of compensation and the negotiated access provisions of the resource Acts is expected by mid 2013.  Resource companies wishing to participate in the reform process should contact the Queensland Resources Council, Australian Petroleum Production and Exploration Association or the Association of Mining and Exploration Companies.

Carter Newell will provide another update when more details of the reform are available.

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