09 May 2013

Wide-ranging changes to Queensland's land and water legislation passed

by Mark Geritz, Ben Cansdale

A petroleum tenure holder in Queensland will now be able to use associated water "for any purpose".

The Land, Water and Other Legislation Amendment Act 2013 (Qld) was passed by Parliament on 2 May 2013 and introduces a large number of legislative amendments across a wide range of Acts impacting, primarily, the land and water regulatory portfolios, but also making important amendments that impact upon the petroleum industry, particularly in relation to water bores and the use and transportation of CSG water.

Some of the key amendments in this Act for petroleum industry proponents are outlined below.

Removal of restriction on use of CSG water

Previously, under the Petroleum and Gas (Production and Safety) Act 2004 (Qld) (P&G Act), a holder of a petroleum tenure could only use associated water (ie. underground water taken or interfered with from a petroleum well) for another "authorised activity" for that tenure – in other words, the tenure holder was restricted from using the water for any activity not authorised for that tenure, such as for activities under another petroleum tenure or beyond the tenure's boundaries.

An exception existed for the supply of associated water to certain owners of land within or adjoining the petroleum tenure for domestic and stock purposes. A petroleum tenure holder wishing to use associated water for any activity not authorised under its tenure was required to seek authorisation under the Water Act 2000 (Qld) (eg. a water licence).

The Act removes this restriction under the P&G Act to allow a petroleum tenure holder to use associated water "for any purpose". The Act's explanatory notes identifies that the Water Act now provides a separate underground water management framework for petroleum industry proponents, which along with requirements under the Environmental Protection Act 1994, removes the need for proponents to also hold a water licence in such circumstances.

As a consequence, the Water Act has also been amended to remove the requirement for petroleum tenure holders to obtain a water licence for the supply of associated water to other users. This has been done for the same reason that restrictions on the use of associated water by petroleum tenure holders under the P&G Act have been removed, as discussed above.

Conversion of petroleum wells to water bores

Previously, the P&G Act and the Petroleum Act 1923 did not permit the transfer of a petroleum well to landholders unless the well has first been converted into a water observation or water supply bore. This restriction reflected safety and health concerns as well as environmental considerations given the potential of petroleum wells to produce hydrocarbons. However, it was recognised that there are some inefficiencies with the circumstances and manner in which petroleum wells could be converted into water observation or water supply bores.

The Act addresses some of these inefficiencies, including by specifying:

  • Who may convert a petroleum well into a water observation or water supply bore: Previously, the conversion could only be performed by a licensed water bore driller. The changes under the Act allow petroleum tenure holders to convert a petroleum well into a water observation or water supply bore so long as the petroleum tenure holder complies with the requirements prescribed under regulation.
  • When a petroleum well becomes a water observation or water supply bore: The Act introduces new provisions to clarify when a petroleum well is taken to have been converted into a water observation or water supply bore (being the date specified in a conversion notice which must be lodged in order for the conversion to take place).

Safety requirements pertaining to pipelines carrying CSG water

Recent amendments brought in by the Mines Legislation (Streamlining) Amendment Act 2012 (Qld) excluded pipelines carrying produced water from the definition of "operating plant" under the P&G Act, with the effect that these pipelines would not be subject to the safety regime under the P&G Act, but instead the safety regime under the Work Health and Safety Act 2011 (Qld).

The Act amends the definition of "operating plant" so that:

  • a pipeline carrying associated water containing petroleum (intended to capture pipelines transporting untreated CSG water that will generally still contain petroleum incidentally collected with the water) will be an operating plant and therefore subject to the safety regime under the P&G Act; and
  • pipelines that transport only produced water, without any petroleum, will continue to be excluded from the definition of "operating plant" and subject to the safety regime under the Work Health and Safety Act.

The Act's explanatory notes reason that, as untreated CSG water pipelines are often laid in the same trench as gas pipelines (which are operating plants under the P&G Act), there is currently a situation where there was a duplication of health and safety regimes in respect of untreated CSG water pipelines that were located next to gas pipelines.

Other amendments

The Act amends a number of other Acts, including to:

  • The Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991 dealing with, amongst other things, land trust memberships.
  • The Acquisition of Land Act 1967, providing for shortened acquisition processes where the parties agree or do not object.
  • The Cape York Peninsula Heritage Act 2007, providing for amendments to the Cape York Peninsula Region map.
  • The Foreign Ownership of Land Register Act 1988, to exclude certain registrable interests in land (eg. plantation licences, carbon abatement interests) from having to be registered under this Act.
  • The Land Act 1994, providing for a range of administrative amendments including to the application process under the Act, lease renewal/conversion considerations, land management agreements, and expanded definition of "public utility provider".
  • The Land Title Act 1994, providing for, amongst other things, creation of watercourse boundaries by plan registration.
  • The Land Valuation Act 2010, providing for, amongst other things, changes to objection and appeal processes.
  • The South East Queensland Water (Distribution and Retail Restructuring) Act 2009 and the Sustainable Planning Act 2009, providing for an extension to existing interim water approval process.
  • The Vegetation Management Act 1999, addressing differences in the definitions for watercourse between certain codes and maps.
  • The Water Act 2000, to implement recommendations from the Queensland Floods Commission's Final Report into the 2011 Queensland floods.
  • The Water Supply (Safety and Reliability) Act 2008, providing for, amongst other things, an entity that does not own infrastructure to be registered as a service provider, if the entity is nominated by the infrastructure owner and prescribed under a regulation as a "related entity" of the infrastructure owner.

When will the changes commence?

The provisions of the Act commence on either the date of Assent of the Act or on a date to be fixed by proclamation – neither of which had occurred as at the date of this article. We will provide a further update once these dates are known.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.