- Spotlight on Land Access Changes in Queensland
- January 17, 2013
- Law Firm: Norton Rose Canada LLP - Montreal Office
On 14 December 2012 the Minister for Natural Resources and Mines released a statement regarding the overhaul of land access laws in Queensland. The release highlighted the Government’s Six Point Action Plan “to strengthen the relationship between two of Queensland’s most economically important sectors” being the agricultural and resource sectors.
The statement directly refers to the recently released “Queensland Government Response to the report of the Land Access Review Panel” (Government’s Response) dated December 2012, which addresses the matters raised in the report issued by the Land Access Review Panel of February 2012 (Panel Report). The Panel Report called for 12 recommendations for consideration by the Government to address concerns raised by stakeholders since the Land Access Framework was established in December 2010.
Report of the Land Access Review Panel (Panel Report) - February 2012
The Land Access Framework was established in 2010 under the then Bligh Government as a mechanism to foster improved relationships between the agricultural and resource sectors and provide greater regulation of private land access for the purposes of exploration and production activities within the mining sectors across Queensland.
The Land Access Framework has provided a regime for land access and compensation for all resource tenements and authorities, however, excludes mining leases which are separately dealt with under the Mineral Resources Act 1989.
The purpose of the framework was to balance the interests of the agricultural sector whilst providing greater consistency and certainty for the resource sector and included:
a requirement that all resource authority holders must comply with a single Land Access Code;
an entry notice requirement for “preliminary activities” ie those that will have no impact or only a minor impact on landholders;
a requirement that, subject to certain exemptions, a Conduct and Compensation Agreement (CCA) be negotiated before a resource authority holder enters a landholder’s property to undertake “advanced activities” ie those likely to have a significant impact on a landholder’s business or land use;
a graduated process for negotiation and resolving disputes about agreements which ensures matters are only referred to the Land Court as a last resort; and
stronger compliance and enforcement powers for government agencies for breaches of the Land Access Code.
Following the implementation of the Land Access Framework, the former Government undertook to review the policy and on 30 November 2011, established an independent Land Access Review Panel (the Panel). The Panel consisted of representatives from the agricultural, rural and resource sectors.
The Panel was appointed to review the effectiveness of the Land Access Framework against the original policy objectives. These objectives were to:
facilitate improved relations between resource companies and landholders;
provide a consistent, transparent and equitable process to facilitate access to private land for resource exploration and development;
provide certainty to landholders and resource companies in terms of their rights and obligations in relation to land access for exploration and development;
define a clear and consistent process that brought resource companies and landholders together to negotiate agreed terms for conduct of resource activities and compensation; and
provide clear dispute resolution, compliance and enforcement processes and powers, with legal proceedings considered only as a last resort.
The Panel undertook targeted consultation with stakeholders affected by the Land Access Framework, including key resource and agricultural peak bodies, landholders, resource companies and other interested parties and a broad cross section of these affected parties were interviewed by the Panel.
The Panel identified a series of recommendations for implementation.
The Panel’s Recommendations
The recommendations made by the Panel included:
Recommendation 1 - Government notify all landholders covered by a tenure or authority at the time of grant.
Recommendation 2 - Government review existing information, guidelines and education programs, and develop new material and programs that are better targeted to appropriate audiences.
Recommendation 3 - Government establish an independent panel to determine disputes arising in negotiating a Conduct and Compensation Agreement (CCA).
Recommendation 4 - Government implement a mechanism to support landholders and resource companies to develop and use a detailed work plan describing both parties’ activities on the land.
Recommendation 5 - Government appoint an independent third party or organisation to clarify what are “reasonable and necessary professional costs to negotiate a CCA” initially by establishing a database of legal and other professional fees.
Recommendation 6 - Government work with the resource and agricultural sectors to develop “standard conduct and compensation agreements” by industry for coal, coal seam gas and minerals.
Recommendation 7 - Government progress the development of a mechanism to enable notification of CCAs on land titles.
Recommendation 8 - Government introduce a way for parties to opt out of the requirement to sign a CCA for advanced activities.
Recommendation 9 - Government review the scope of “compensatable effects”.
Recommendation 10 - Government review technical issues to make improvements in the process.
Recommendation 11 - Government review the Land Access Framework in 3 years.
Recommendation 12 - That the Government note the various out-of-scope issues raised.
Queensland Government Response to the Report of the Land Access Review Panel - December 2012 (Government’s Response)
This report provides a response to the Land Access Review Panel’s report of February 2012 and focuses on key improvements to be made to the Land Access Framework primarily through a “six- point action plan”.
Government’s Six-Point Action Plan
The Six Point Action Plan sets out short to medium term actions for both the Government and stakeholders to be implemented as a matter of priority. The 6 priority actions include:
Item 1 - Conduct and compensation:
1) Review heads of compensation to ensure no cost or erosion of landholders’ rights; and
2) Land Court jurisdiction expanded to include conduct.
Item 2 - A single Land Court accredited form of independent Alternative Dispute Resolution (ADR) integrated into the Land Court.
Item 3 - CCA’s to be noted on the land title.
Item 4 - Parties can agree to opt out of the Land Access Framework (at the election of the landholder if both parties agree).
Item 5 - Development of standard CCAs for mineral, coal and coal seam gas industries in partnership with the resource and agricultural sectors.
Item 6 - Review and rationalise information sources into a single resource for landholders and resource companies.
In addition, the Government’s Response notes the establishment of an Implementation Committee comprising members from Agforce, Queensland Farmers Federation, Queensland Resources Council, Australian Petroleum Production and Exploration Association, Association of Mining and Exploration Companies and the Gas Fields Commission to oversee the implementation of the action plan.
Summary of Government Response to Panel Recommendations - Key Changes
Response to Panel Recommendations 1 and 2
In response to Recommendations 1 and 2 of the Panel Report, the Government was supportive of the need for improved education and access to information, guidelines and educational programs as well as ensuring that landholders are notified at the time that a grant is made.
The Government noted that it had implemented the Local Area Mining Reports Service to allow parties greater access to information regarding permits applied for and granted within areas and has provided improved spatial information services to allow for general searches of resource tenures and other significant spatial layers.
The Government acknowledged and supported the need for redrafting of some existing materials and guidelines and providing greater clarity of parties’ rights and entitlements. It noted the need for shared responsibility and that the redrafting and development of materials should be provided by both the Government as well as key partners such as the Gas Fields Commission and other peak bodies.
It committed the Government and industry partners to deliver improved information sources by end of 2013.
Response to Panel Recommendation 3
In responding to the Panel’s recommendation for the establishment of an independent panel to determine disputes arising in the negotiation of a CCA, the Government acknowledged that the intent of this recommendation was the need to provide a simpler and faster way to facilitate a definitive resolution for land access disputes.
The preferred approach that the Government considered would best respond to this recommendation was for an ADR framework that provided for an accredited form of ADR which would be recognised by the Land Court and that could integrate into that process. It considered that this would be independent of Government and would remove Department conference or other non-accredited forms of ADR prior to a referral of a matter to the Land Court in respect to the negotiation of a CCA. The response noted the need for further policy work and legislative amendment to determine the most appropriate form of ADR framework that would improve certainty of outcome. It gave consideration to the New South Wales arbitration model as a possible format for this ADR framework.
It also noted the requirement for an appropriate funding model to be considered and the need for legislative amendment to the relevant resources legislation to expand on the existing jurisdiction of the Land Court to include conduct within its proceedings.
The report identified that a single accredited ADR framework to respond to this recommendation would be delivered by the Government by mid 2013.
Response to Panel Recommendation 4
In response to Recommendation 4 for the implementation of a mechanism to support landholders and resource companies to develop and use a detailed work plan for describing both parties’ activities on the land, the report noted that there is an ongoing need for flexibility as to the format and content of plans to cater for a variety of circumstances and the changing nature of activities over the term of the tenure.
On this basis, the Government considered that this should be implemented through improved awareness and education programs and materials to inform all sectors and stakeholders as to the nature of activities that are likely to occur on a landholder’s property in line with Item 6 of the Government’s action plan.
Response to Panel Recommendation 5
The Government supported the intent of the Panel’s recommendation that the Government appoint an independent third party or organisation to clarify what are “reasonable and necessary professional costs to negotiate a CCA” including the establishment of a database of legal and other professional fees.
The Government noted that this should be assessed as part of a review of the ‘compensatable effects’ in reference to Recommendation 9 of the Panel’s report and reiterated the need for flexibility to allow for complex agreements.
Response to Panel Recommendation 6
The Government’s Response to Recommendation 6 of the Panel’s Report with respect to working with the resource and agricultural sectors to develop standard CCAs by industry for coal, coal seam gas and minerals, acknowledged the need for further work on tailored templates or model agreements for each sector. It considered that these items should be prepared as part of a partnership model between the peak bodies of the resource and agricultural sectors.
The response also acknowledged that issues had been raised with the current CCAs and noted the need to place a greater emphasis on conduct and early information exchange between parties, as it had been noted that in some cases, the full impacts of the agreements often far exceeded that which had been initially agreed to by the parties. The Government was also conscious of the changing nature of activities over the term of an agreement and, therefore the need for review periods should be incorporated. It considered that CCA’s should be drafted in plain English for simplicity, noting however that there was not a “one size fits all approach” for negotiation and compensation, and that the current CCA should be used as a guide.
Through its Action Plan, template CCAs for the mineral, coal and coal seam gas industries are to be developed through partnership between the Government and industry stakeholders, committing to the delivery of template CCAs by mid 2013.
Response to Panel Recommendation 7
The Government supported the Panel’s recommendation for the development of a mechanism to enable notification of CCAs on land titles, noting that the current resources legislation requires a CCA or Land Court decision to bind successors in title and assigns to the area of the relevant tenement.
Through the Panel’s consultation process, it was generally supported, that the existence of a CCA should be notified on the title, however, considered that the terms or conditions of the CCA should remain undisclosed. The Government considered that noting the CCA on the title would allow a party searching the land to be aware of an existing CCA and give a party the opportunity to approach the relevant party to obtain a copy of the agreement. It considered that the level of confidentiality of the CCA would remain up to the agreement of the parties.
In order to implement this action, the response noted the need for legislative amendment and, as part of its Six Point Action Plan, committed to delivering these changes by mid 2013.
Response to Panel Recommendation 8
The Government, in its report, supported the Panel’s recommendation that there should be a mechanism to allow parties to opt out of the requirement to sign a CCA for advanced activities. It considered that the intent of this recommendation was to simplify the process for two willing parties “who do not wish to sign a formal Conduct and Compensation Agreement and supports a mechanism that will provide greater flexibility to parties who are willing to strike an agreement outside a structured regime”.
The Government favoured a flexible process to allow willing parties, at the election of the landholder, to agree to opt out of a CCA.
The Government’s Response noted that this issue was most pressing in relation to mineral and coal exploration in the more remote parts of the State and was a key consideration in the implementation of this recommendation. It noted the contrasting stakeholder opinion regarding this recommendation. The majority of the agricultural sector did not support it, whilst the resource sector was strongly in favour.
The Government reiterated that given the importance of the agreement in terms of enabling on-ground work to commence and that any agreement binds the landholder, it was necessary that some form of written agreement be in place, whether simple or detailed, and should be noted on the title pursuant to the implementation of recommendation 7.
The Government’s response also provided some comfort to the agricultural sector, noting that the mechanism to opt out of a CCA “would not allow a company to sign away obligations to comply with the Land Access Code or to be accountable for compensation should an impact result in a compensatable effect”.
It acknowledged the need for legislative amendment to implement this change and through its Six Point Action Plan committed to delivering the necessary changes by mid 2013.
Response to Panel Recommendation 9
The Government indicated support for the Panel’s recommendation that there was a need for Government review regarding the scope of “compensatable effects”. It acknowledged however the need for further policy and implementation work and considered that the compensatable items noted in the heads of compensation should be reviewed to determine:
how they should be quantified; and
the evidence required to substantiate claims.
In this regard, the Government also considered that “reasonable and necessary legal, accounting and valuation costs” should be undertaken in the review of compensatable effects which is consistent with its response to recommendation 5.
It further noted that legislative amendments would be required in order to implement this change, and as part of item 1 of its Six Point Action Plan, committed to review the heads of compensation in respect to both compensation and conduct by mid 2013. It specifically stated this would be carried out in a manner that would ensure that there was no erosion of landholder rights as part of this process.
Response to Panel Recommendations 10, 11 and 12
The Government’s Response noted its support of the need to:
ensure that technical improvements are made to the process;
conduct periodic reviews of the Land Access Framework; and
address out-of-scope issues not specifically covered in the Panel’s Report.
The Government made no formal commitments to deliver on any specific matters suggested by the Panel for these recommendations and considered that these items had been implicitly addressed through other proposed and current Government actions.
The Government’s Response to the report of the Land Access Review Panel corresponds to the Newman Government’s election commitment to reduce red tape and provides some further insight into the Government’s strategy for managing the resource sector in Queensland.
The Six Point Action Plan identifies those items that will progress as a matter of priority by both the Government and industry partners, with the majority of the action items to be delivered by mid 2013.
Of particular interest is the Government’s commitment to reviewing the heads of compensation and expanding the jurisdiction of the Land Court with respect to hearing matters concerning conduct in compensation which may have a significant impact on the current land access arrangements in Queensland. It is difficult at this time, given the limited detail provided, to effectively determine how these changes may affect both the rights and interests of landholders and resource companies.
The endorsement by the Government of the Land Access Review Panel’s recommendation to allow parties, at the election of the landholder, the option of opting out of a CCA is significant and may receive resistance from the agricultural sector if this is implemented based on the feedback received to-date.