In brief
The Queensland Government has passed legislation (now currently awaiting assent) that is the first stage of a program to rationalise the regulatory regime for all types of resources tenure in Queensland. Partner Ben Zillmann, Managing Associate John Hedge, Senior Associate Gobind Kalsi and Associate Andrea Moffatt report on the legislation and the important changes that have been included since the draft legislation was first introduced into Parliament.
What does it mean for you?
The Mineral and Energy Resources (Common Provisions) Act 2014 (the Act) will amend numerous aspects of resources regulation in Queensland and will impact on both existing industry operators and proponents of future resource projects. After the Bill was first introduced, it went through an extensive parliamentary committee review process, where numerous stakeholders were given an opportunity to make submissions. This resulted in a further round of amendments to the legislation, which further alter the changes to the land access and restricted land framework, regulation of overlapping coal and coal seam gas tenure, and the mining lease application and objection process.
The Act should not be seen as merely an amalgamation of existing legislation. There are significant substantive changes and it will be important for all tenure holders in Queensland to understand what the changes mean for them, particularly in relation to:
- the impact on the time, cost and approval process for new projects; and
- how the detailed transitional provisions that govern the new regime will apply from the commencement of the legislation, particularly in respect of overlapping coal/CSG tenure.
Key changes
Many of the amendments made prior to the Act passing were directed at clarifying the operation of the legislation including in respect of overlapping coal/coal seam gas tenements, seeking to better reflect the Queensland Resources Council's White Paper (see our previous Focus for more detail).
Key changes to the Act from when it was first introduced into Parliament include:
Streamlined court processes – coordinated mining projects
For mining projects for which a Co-ordinator General's report has been issued stating conditions for the environmental authority, it will no longer be possible to object to the environmental authority (via the Land Court), provided the project remains the same as evaluated in the Co-ordinator General's report.
Streamlined court processes – all mining projects
The changes clarify that the Land Court may, at any stage of an objections proceeding, strike out an objection to the extent that the objection is outside the court's jurisdiction, frivolous or vexatious, or otherwise an abuse of process of the Land Court. The purpose of the amendment is to clarify that the court need not consider such objections in making its recommendation to the Minister. This change could provide significant time and cost benefits for future mining projects in navigating the objection process.
Overlapping coal/coal seam gas framework – concurrent applications
When we first reported on this matter, the proposed legislation did not provide any express statutory framework for resolving concurrent coal and CSG production tenement applications.
The Act will now require holders of petroleum authorities to prospect (an ATP holder) to be given notice of any application for an overlapping coal mining lease. Following receipt of that notice, the ATP holder has six months to apply for a petroleum lease (and three months to signal its intention to do so). If an application for such a petroleum lease is made in that time, the new overlapping tenure regime applies as if the ATP holder is the holder of a petroleum lease and, as a result, the commencement of coal mining in the area of overlap must be at least 11 years from the date of the notice being given to the ATP holder, unless otherwise agreed, or the mining lease holder pays compensation to accelerate the mining commencement date.
Overlapping coal/coal seam gas framework – Surat transitional regime to reflect agreed industry compromise
The transitional provisions specific to an area in the Surat Basin have been amended to reflect a compromise reached between the coal and coal seam gas industries. The result of that compromise is to bring the Surat Basin overlapping tenement regime generally into line with the arrangements that will govern the rest of the State, with the exception of an initial small window after the commencement of the Act when new petroleum leases will be given a longer operating window (until 1 July 2030, or 1 July 2020 with acceleration and payment of compensation) instead of the standard 11 years in areas of overlap with mining leases, unless otherwise agreed.
Restricted land
- For production resource authorities (eg mining leases and petroleum leases), the provisions relating to restricted land will now only apply if the use of the relevant area, building or structure pre-dates the application for the resource authority.
- Landowners, occupiers and holders of a resource authority will now be able to apply to the Land Court for a determination as to whether an activity is a prescribed activity (or whether particular land is restricted land) for a resource authority.
Conclusion
The Act has not yet commenced, and regulations supporting certain aspects of the new Act will need to be first put in place. However, it is likely the Act will be given formal assent and commence soon, with some impacts of the reforms likely to be felt (particularly for projects in the development phase) nearly immediately, while the Government's Modernising Queensland Resources Act reform program will now enter the next phase.