By Martin Klapper, Partner
In December 2010, the former Queensland Government implemented a new land access framework for resource activities in Queensland ( click here for more information on the framework at that time).
Some 18 months later, a full review has been completed to measure the effectiveness of the land access framework against its original objectives, and to identify the deficiencies in the system and recommend solutions.
The Land Access Review Panel, chaired by David Watson and comprised of members John Cotter, Alice Clark, Gary Sansom and Geoff Dickie, has released the February 2012 Report of the Land Access Review Panel. This is in line with the former Government's commitment to comprehensively review Queensland's land access framework after 12 months of operation.
At the time the Report was released, the framework had been functional for the petroleum and gas, geothermal and greenhouse gas storage industries for 15 months, and for the mineral and coal sectors for five months.
The Panel has made a number of recommendations, which it claims are designed to address the issues raised during a two-stage consultation process with stakeholders, and has documented an optimal negotiation process in an effort to achieve best practice engagement between resource companies and landholders in Queensland.
Here, partner Martin Klapper and solicitor Courtney Smith review the Panel's recommended 'optimal process' for engagement between stakeholders, and outline the recommendations for reform of Queensland's land access framework.
- The Report proposes an eight-step 'optimal process' for the negotiation of conduct and compensation agreements, as a reference tool for both landholders and resource companies.
- The Land Access Review Panel has recommended 12 steps for the Government to take to address identified deficiencies in the system.
- The State Government not yet indicated whether, or which of, the recommendations will be implemented. It is calling for direct comment on the Land Access Review Panel's Report within 30 days.
The 'optimal process' for negotiation
The Report proposes an 'optimal process' for best practice engagement when negotiating a conduct and compensation agreement (CCA). The Report indicates that the process is not intended to be mandatory, but should be used as a reference tool by both landholders and resource companies where advanced activities will be carried out by the resource company.
The optimal process is as follows:
- Notify affected landholders: It should be the Government's obligation to notify all landholders under a resource authority at the time of grant, to ensure that all parties are informed that a resource tenure process has commenced. Resource companies are also likely to be encouraged to make voluntary notifications to landholders.
- Engage early with landholders: This will involve an informal initial meeting for preliminary discussions about what the resource company proposes to do on the land and how the proposed resource activities fit in with the landholder's activities.
- Disclose information: This is to be a mutual obligation of the parties, each providing the other with relevant information about their business and intended operations on the land.
- Plan work program: Both parties are encouraged to articulate their business activities and to cooperate in achieving a mutually satisfactory arrangement.
- Agree on preliminary and advanced activities or Entry Notice for Preliminary Activities.
- Draft CCA.
- Engage legal expertise to examine and finalise the CCA.
- Build and maintain an ongoing relationship through to the completion of the rehabilitation stage of operations.
The Land Access Review Panel's recommendations
The Land Access Review Panel has made 12 recommendations to address identified deficiencies. The Report describes the recommendations as a 'package deal'.
Recommendation 1: Government to notify all landholders covered by a tenure or authority at the time of grant. This is the first step of the 'optimal process' for negotiation.
Recommendation 2: Government to review existing information, guidelines and education programs, and develop new material and programs that are better targeted to appropriate audiences, in order to address concerns that the Government does not provide adequate information to all parties on the land access regime.
Recommendation 3: Government to establish an independent panel to determine disputes arising in negotiating a CCA (in addition to the existing options for a conference or alternative dispute resolution). The independent panel process would be a formal process required by law, and the decision of the independent panel would be binding, with only limited appeal rights to the Land Court on matters of law.
Recommendation 4: Government to implement a mechanism to support landholders and resource companies to develop and use a detailed work plan describing both parties' activities on the land. This is intended to assist with the disclosure process and work program planning under the 'optimal process'.
Recommendation 5: Government to 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 to work with the resource and agricultural sectors to develop standard industry CCAs for coal, CSG and minerals. This recommendation is in response to industry concerns that one standard CCA is unsuitable for all of the coal, CSG and mineral industries, due to their different activities and varying land uses.
Recommendation 7: Government to progress the development of a mechanism to enable notification of CCAs on land titles.
Recommendation 8: Government to introduce a way for parties to opt out of the requirement to sign a CCA for advanced activities. This will allow parties who have already established a relationship to continue with their activities without the need to proceed through the formal land access process, provided that both parties agree that there is no need to sign a formal CCA.
Recommendation 9: Government to review scope of 'compensatable effects'.
Recommendation 10: Government to review technical issues to make improvements in the process. This will include a review of 'preliminary' and 'advanced' activities, 'owner' and 'occupier' definitions, what constitutes 'good faith' negotiations, and the 600m rule and impacts on adjacent landholders.
Recommendation 11: Government to review land access framework in three years.
Recommendation 12: Government to note the various out-of-scope issues which arose in the consultation process, including strategic cropping land, urban encroachment laws, wild rivers, CSG water impacts, rehabilitation and other environmental concerns.
Where to from here?
The State Government has confirmed that the Land Access Review Panel's Report has been tabled, and the Government has begun to address the key concerns raised in the report.
There has been no firm indication from the Government yet as to whether, or which of, the recommendations will be implemented. We will continue to monitor the situation and will provide further updates as they become available.
In the meantime, the Government has called for stakeholders to provide direct comment on the Land Access Review Panel's Report to the Department of Natural Resources and Mines within 30 days.
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