Australia: MOLA rolls on after Committee's Report—But will there be further changes?

The Infrastructure, Planning and Natural Resources Committee has now tabled its report on the Mining and Other Legislation Amendment Bill 2016 (Qld) (MOLA). This report appears to be the final document in the current round of cascading amendments to resources legislation in Queensland. The report recommends some minor changes to MOLA, which amends the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCPA), which in turn amends and supplants various other pieces of resources legislation.

MOLA's purpose is to deliver on a number of election promises made by the Queensland Government concerning mining and resources, most notably about objection rights and restricted land. The aim of a number of these MOLA amendments is to generally restore the position that existed prior to MERCPA rather than to introduce extensive changes to the legislation (to find out more about the MOLA amendments, see Foreshadowed changes to Queensland resources legislation given clarity).

General acceptance

The Committee has recommended that MOLA be passed. However, it has recommended a number of changes be made to MOLA before it is passed (discussed below) and it has sought a number of points of clarification from the Department of Natural Resources and Mines and the Minister. The Committee made no recommendations concerning objection rights as set out in MOLA, nor did it make any recommendations on the overlapping tenures regime.

Restricted land

Exclusion distances

Issues around restricted land provisions were the subject of a significant number of submissions to the Committee. While the Committee didn't recommend any changes to the exclusion distances for restricted land as currently set out in MOLA—being either a 50 m or 200 m stand-off distance depending on the area, building or structure comprising the restricted land—the Committee did seek the Minister's clarification of the evidential rationale for prescribed distances under the restricted land framework and assurances that those distances are not simply a legislative legacy.

While the Committee has raised these issues, it may be unlikely for Parliament to change the stand-off distances at this stage, particularly if the Government is seeking to generally restore the pre-existing position.

Categories of land

Again, the Committee didn't make any recommendations to change the definition of restricted land to include other areas, structures or features. It did though make a recommendation that the Department report on an investigation about potential amendments to clarify the definition of residence for accommodation for non-resident workers (e.g. seasonal workers).  That is, clarity is being sought about whether, in order for a residence to fall within the definition of restricted land, the residence needs to be occupied full-time or only part-time.

In addition, the Committee sought two points of clarification.

The first was why certain agricultural assets, such as irrigation channels and draining, on-farm management infrastructure for controlling surface water flows and land that has been subject to laser levelling, are not included in the definition of restricted land.

The second was to seek assurance that the term "permanent building" within the definition of restricted land is adequate to achieve MOLA's policy aims.

Again, while the Committee has asked these questions, if the intention of the Government is to restore the pre-existing position, changes to expand the features that constitute restricted land may be unlikely.

Notifications of mining lease applications

The Committee has recommended that notice of mining lease applications be given to owners of land the subject of a mining lease and to owners of adjoining land and entities that provide infrastructure wholly or partially on the subject land. This latter category would include electricity providers and owners of pipelines under the land. This will increase the number of people who receive direct notice of a mining lease application.

While not clear on the face of the recommendation, it would seem that adjoining owners would be limited to owners of land adjoining the mining lease itself, rather than owners of land adjoining the land on which the mining lease is located.

If this recommendation is accepted and included in MOLA, adjoining landowners and entities that provide infrastructure will need to be identified by mining lease applicants during the application process to ensure that they are given the required notices. This could potentially be problematic where infrastructure entities do not hold registered easements or other registered interests in the land, as it may not be readily apparent that such infrastructure (e.g. underground pipelines) exists in the mining lease area.

Opt-out agreements

The Committee noted several submissions that argued against opt-out agreements being included in the land access regime but, nevertheless, saw the benefit of retaining these agreements as they would be of use for at least some landowners.

However, the Committee recommended that prescribed requirements for opt-out agreements include a requirement that the information be provided to landowners in concise and plain English, and that there be an acknowledgment from the landholder that they had an opportunity to seek legal advice.

What's next?

While the report from the Committee largely accepts MOLA on its present terms, there is still some scope for further, albeit minor, changes to be made to MOLA when it returns to Parliament.

With the report now completed, MOLA will return to Parliament for the second reading speech. The next sitting days for Parliament are 24, 25 and 26 May and MOLA is currently listed in the Notice Papers for Parliament's Agenda on 24 May, so it's likely that, one way or another and with or without amendments, MOLA will be passed on that day.

As MOLA amends MERCPA and they are effectively a package of legislation, the commencement date for MERCPA will likely be the determinant of when MOLA commences. MERCPA is currently due to commence on 27 September 2016, having been deferred in light of the current Government's election promises. However, once MOLA has passed, there may be scope for MERCPA and MOLA to begin sooner.

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