CSG and Mining Webinar: Land Access and Dispute Resolution Changes

AgForce Projects Coal Seam Gas (CSG) and Mining Landholder Support Project is dedicated to providing free and easily accessible information to landholders across Queensland regarding the CSG and mining industry, including developments regarding legislation and regulation as well as support in negotiating agreements.

The project aims to provide landholders across Queensland with independent, factual and landholder relevant information to support landholders managing resource activities at any stage; from preliminary negotiations to ongoing activities.

Recently the Queensland Government has proposed a number of changes to the land access and dispute resolution framework for the resources sector. As the industry continues to expand and develop across regional Queensland, it is important that landholders remain aware of changes to industry development and legislation, and what it means for you.

The Queensland Government's proposed changes amend the framework for Conduct and Compensation Agreements (CCA) and make good agreements, including:

• The introduction of a Land Access Ombudsman;
• Proposed introduction of an Arbitration process for dispute resolution; and
• Updated professional services landholders can engage in CCA negotiations.

To help landholders understand these changes and the land access framework, AgForce Projects will be running a series of regionally based workshops. To find out about these events visit our events page.

Webinar Frequently Asked Questions:
What is the role of the land access ombudsman?
As a result of the 2016 GasFields Commission Review, Queensland Parliament has passed legislation to introduce a Land Access Ombudsman. The Queensland Government states that the Land Access Ombudsman will be an independent body to help landholders and resource companies resolve alleged breaches of conduct and compensation agreements and make good agreements.

• It is important that landholders note the following about the Ombudsman:
• It will not play a role in dispute resolution in negotiating a CCA or make good agreement, it will only be available to landholders or resource companies after an agreement has been signed and when there is a dispute regarding application of the agreement or breach of agreement or behaviour;
• It will be a free service available to both landholders and resources companies, with either party able to refer the matter;
• The Ombudsman will hear CCA or make good agreement disputes for all resource sectors;
• It will be a separate body independent to the GasFields Commission and expected to commence in 2018; and
• It will have no regulatory or enforcement powers, but will be able to refer matters to the relevant Department regarding a possible breach of agreement or permit condition.

While the Ombudsman will not have a regulatory or compliance function, it will provide another avenue to landholders and resource companies to assist in resolving disputes otherwise headed for court action. The Ombudsman will also be able to offer advice to Government on systemic issues within the land access framework.

As more information becomes available about the Ombudsman, AgForce Projects will keep landholders up to date.

Click here to learn more about roles and functions of the Land Access Ombudsman.

What are the key changes of the Mineral, Water and Other Legislation Amendment Bill 2017?
On 22 August 2017, the Hon. Anthony Lynham MP, Minister for State Development and Minister for Natural Resources and Mines, introduced the Mineral, Water and Other Legislation Amendment Bill 2017 (MWOLA). This Bill was a key focus of this webinar and proposes a number of changes to the land access and dispute resolution framework for CCA's and make good agreements.
Some of the key changes proposed within this Bill include:

• Proposed introduction of an Arbitration process for disputes regarding the negotiation of a Conduct and Compensation Agreement (CCA) or Make Good Agreement. Some key points to note are:

• Arbitration will be voluntary and both parties must agree to attend;
• Parties can choose for a dispute to be referred to either Land Court or Arbitration, not both;  
• It will result in a binding decision, with no grounds for appeal;
• Parties can agree on the type of arbitration and the arbitrator or can apply to an arbitration institute if agreement cannot be reached;
• A decision (award) must be delivered within 6 months of appointing an arbitrator; and
• Unless agreed otherwise, companies and landholders will split costs 50/50.

• The Bill also proposes to extend the professional services landholders can engage in developing a CCA to include professional agronomy advice, in addition to legal, accounting and valuation;

• It is proposed that resource company liability will extend to compensate landholder's necessary and reasonable costs even if a CCA is not reached or a company abandons negotiations; and

• Expand the jurisdiction of the Land Court to include making a determination about necessary and reasonable professional costs incurred where there is a dispute regarding these costs.

This Bill is currently progressing through Parliamentary Committee hearings with a report to be delivered to Parliament by 3rd November. As more information about these changes becomes available, AgForce Projects will keep landholders informed and run workshops to support landholders.  To learn more about the changes contained within this Bill click here.

What can help reduce disputes in land access negotiations?
During our engagement with over 6000 landholders since 2011, our team have collected a few tips to help landholders avoid disputes with resource companies.

• It is important to understand the activities that are proposed and what is involved in carrying out and managing these activities. It is useful to work with your land access representative to detail all the activities likely to take place, to understand the duration and location of activities. By understanding the activities that are planned, it will help to determine the potential impacts and identify how to mitigate these, while assisting to determine compensation more effectively and fairly. AgForce survey data has shown that landholders with low levels of CCA satisfaction have indicated that activities occurring outside what was expected or discussed as a major reason for agreement dissatisfaction. To help avoid disputes, we encourage landholders to specify and understand the activities that are planned and work with your land access rep to minimise any potential impact or disruption that may arise. It is important to compare the planned activities to your own and identify potential impacts, such as the location of infrastructure and timing of activities, and work with your land access rep to minimise disruption;

• We encourage landholders to develop a property plan/map to help in comparing proposed activities to determine impacts and work to reduce these while developing methods to minimise impacts. AgForce Projects are able to provide free assistance to help you develop a property plan/map, including free computer mapping workshops;

• AgForce survey data indicates that more than 54% of landholders felt unsatisfied or very unsatisfied with their CCA- with many indicating that limited CCA flexibility and staff behaviour as key reasons. To help avoid this, we encourage landholders to consider negotiating either a specific term for the agreement (i.e. exploration activities or a set period of time) and/or a review clause that gives you the ability to periodically review aspects of the agreement to ensure that they are effectively managing impacts, conduct provisions are effective and that compensation is reflective of impacts. For example, this may include reviewing the effectiveness of dust or weed mitigation strategies to ensure that any issues are caught early rather than left to snowball into larger disputes. Managing the behaviour of staff is also a large area of dispute. Landholders often express frustration that staff behaviour is not adequately managed in agreements or that breaches of agreements are not penalised or effectively rectified. To help reduce this, we encourage landholders to specify in your CCA how staff will conduct themselves, where and when they can access property areas and to develop with your land access representative a way to enforce these conditions and a clear pathway should any be breached;

• AgForce Projects encourages landholders to access the support services that are available to assist in developing CCAs and/or make good agreements. Landholders are reminded that during negotiations you are able to engage and have necessary and reasonable costs covered for professional legal, accounting and valuation advice. In make good agreements, legislation has been amended to allow landholders to engage professional hydrogeological advice. We encourage landholders to contact our CSG & Mining Team for free information and support as well as contact the CSG Compliance Unit for any regulatory or compliance matters.

Contact the CSG Compliance Unit: 4529 1500 Email: csg.enquiries@dnrm.qld.gov.au
Contact the AgForce Projects CSG & Mining Team: 3238 6048 Email csg@agforceprojects.org.au
Click here to find out more about workshops and field days offered to support landholders.

How do these changes apply to groundwater disputes?
The proposals for dispute resolution outlined above are also applicable to make good agreement negotiations. The Land Access Ombudsman will also be able to hear disputes between resource companies and landholders in relation to the application of a make good agreement or disputes post agreement.

Amendments made in late 2016 under the Environmental Protection (Underground Water Management) and Other Legislation Amendment Act 2016) also enable landholders to engage professional hydrogeological advice as part of make good agreement negotiations, and that the resource company are required to pay necessary and reasonable costs. This legislation also requires that the resource company is responsible to pay the costs associated with facilitating Alternative Dispute Resolution (ADR) in make good negotiations. Landholder rights have also been expanded to include bores that are or are likely to be impaired due to free gas generated by resource activities (i.e. gassy bores). Click here to find out more about these changes. 

Support available for groundwater monitoring
Groundwater Net is a project run by the Department of Natural Resources and Mines (DNRM) CSG Compliance Unit, through their groundwater team. It supports landholders to monitor their own bore/s and feed results into a regional groundwater database. By feeding these results into the database it helps to fill gaps in the regional network, providing benefits to all landholders. It can also provide very useful baseline data and be used in groundwater disputes or in determining an impact to your bore.

AgForce Projects encourages landholders to get involved with this project, to use the funding and support available to proactively monitor your bore/s and help improve groundwater knowledge for all landholders.

Funding is available to support landholders install monitoring equipment on registered bores, up to 75% of these costs, and is administered through the Queensland Murray-Darling Committee (QMDC). To learn more about this project click here.

For info on Groundwater Net contact the CSG Compliance Unit call (07) 4529 1500 or email csg.enquiries@dnrm.qld.gov.au