Queensland Government proposes land access reforms

In brief

The Queensland Government has released a discussion paper setting out proposed reforms to the State's land access regime for public and private land. The paper closely follows other discussion papers released recently in respect of proposed reforms to restricted land and the process for notifying and lodging objections to an application for a mining lease or environmental authority. Partner Ben Zillmann and Lawyer Giselle Kilvert comment on the latest proposed reforms.

Background

The Land Access reforms form part of the State's Modernising Queensland's Resources Acts (the MQRA) Program, which aims to create a uniform system of tenure administration across all resource types by taking the five existing resource Acts (which separately address geothermal energy, greenhouse gas storage, minerals, petroleum and gas) and combining them into a single common resources Act.

The Land Access – Public and Private reforms do not affect access for all tenure types. The paper acknowledges that for mining leases, prospecting permits and mining claims, compensation and land access is addressed as part of the tenement application process, and, as such, those tenures will not be subject to the new framework. For all other resource tenements, the new framework is intended to form a 'single point of reference for land access'.

The proposed changes

The draft provisions address:

• access to private land;
• access to public land;
• access across land to reach a resource authority;
• notifiable road uses; and
• associated compensation, negotiation and Land Court provisions.

The paper acknowledges that the existing regimes for land access, while separate, are largely consistent, so only 'minor' changes are required to create a uniform approach, and to remove duplicative processes.

The main changes proposed under the new regime are as follows:

• applicants for a resource tenure may lodge a notice of entry with a public land authority before the resource authority is granted, enabling the applicant to access public land more quickly once the tenure is granted (however, no similar process is proposed for privately owned land);
• landowners may agree to 'opt out' of entering into a conduct and compensation agreement (CCA). This has the potential to introduce greater flexibility and efficiency into the land access and compensation process, which will be particularly positive for those involved in activities such as small-scale exploration where the administrative burden and costs of compliance with the full CCA process can often be out of proportion to the activities, impacts and compensation involved. Having said that, the legislation will require a formal 'opt-out agreement' to be entered, which must comply with prescribed requirements. Accordingly, the 'opt-out' process will still involve a degree of formality, which may negate some of the benefits it seeks to deliver;
• the existence of a CCA, deferral agreement or opt-out agreement must be registered on the title of the land to which the agreement relates;
• the Land Court may determine the obligations or limitations of a resource authority holder when carrying out authorised activities on a landowner's land (not just the terms of compensation) – that is, the reforms confirm that the Land Court has the jurisdiction to determine all matters that might otherwise be the subject of a CCA, and that the court has the power to determine the extent of activities a resource authority holder may carry out;
• applicants for mineral exploration permits and mineral development licences will no longer be required to obtain the consent of any owners of reserve land; and
• resource authority holders will no longer be required to provide to the Department with a copy of entry and other notices given to landowners (although the Department may require an authority holder to provide a copy of any such notice).

As a general comment, the proposed reforms address concerns and perceived 'gaps' that have been identified in recent years in respect of the current land access regime, as it applies to the tenements in question.

Next steps

Submissions on the reforms are due to be provided by 17 April 2014. Following closure of the submission period and consideration of those submissions by the Queensland Government, amending legislation to reflect any finalised changes would likely be implemented in late 2014 or the first half of 2015.

For a copy of the discussion paper, please contact Ben Zillmann (see details below).

To read the earlier discussion papers:

Towards a standardised framework for restricted land across all resource types; and

Mining lease notification and objection initiative.