26 Jun 2014

Coming soon - standardised resources legislation in Queensland

by Mark Geritz, Prue Harvey

Queensland has taken the first step in modernising its resources legislation by introducing the Mineral and Energy Resources (Common Provisions) Bill 2014.

Queensland's "MQRA Program" has been designed to modernise the State's resources legislation through the consolidation of the current legislative framework into a single common resources Act. The current framework consists of five resources Acts. The purpose of the consolidation is reduced complexity through a single, harmonised system, which is flexible enough to accommodate future developments in the industry and reduce regulatory burdens.

The first step in implementing the MQRA Program has been taken by introducing the Mineral and Energy Resources (Common Provisions) Bill 2014, which will act as an initial transitional measure alongside the existing Acts to simplify the conversion process.

Below we set out some of the headlines. Further articles will follow to cover specific areas and transitional arrangements in more detail.

Land access

The Bill includes all of the features (both positive and missed opportunities) highlighted in the Land Access Consultation Draft, but with the following changes or clarifications:

  • Conduct and compensation agreements on title: The obligation to register particulars of CCAs on title is proposed to apply retrospectively and resource authority holders will have six months to notify the registrar of titles of existing CCAs.
  • Off-tenure (private): The previous intention was that the private land, off-tenure access provisions under the Petroleum and Gas (Production and Safety Act) 2004 (PAG) would be extended to apply to exploration permits under the MRA. This has now been amended to also apply to mining leases. It is not clear if this is intended. Further, mineral development licences have been excluded from the regime.
  • Periodic notices: In addition to the initial entry notice obligation, a further obligation for periodic notices after the initial entry has been included at "prescribed periods" (which are to be included in the regulations and are therefore not yet known).

The Bill, while maintaining the requirement that particulars of CCAs, deferral agreements and opt-out agreements be recorded on title, does not go as far as to require Land Court decisions (which have a similar consequence) to also be recorded on title. We query whether this is worth consideration if the intention is to ensure that all potential compensation matters that relate to the land are noted on title.

Restricted Land

The Bill proposes to implement the changes set out in our article Drastic changes to restricted land proposed for Queensland mining and petroleum tenements, most notably:

  • Radius: The radius for restricted land is proposed to extend to 200m.
  • Petroleum: Restricted land is now proposed to be introduced to petroleum tenements, confirming our concerns that the MQRA Program was going to lead to the "worst" restrictions for industry in any of the current legislation being adopted across all resource authorities.

Although certain structures are proposed to be removed from the current definition of restricted land, the definition now includes a building for any purpose (not just business) if it is reasonably considered that the building cannot be easily relocated or cannot co-exist with the resource authority. This has the potential of significantly opening up the opportunities for land to be classed as restricted land.

Another key change is that restricted land is to be assessed as at the date of grant, not the date of application (as it currently is at least for mining leases). This means that landholders could potentially "create" new restricted land between the application and grant dates and even after a compensation agreement has been entered into relating to other restricted land.

Finally, further to our article Proposed Changes to notification and objection procedures to bar "anti-mining extremists", there is some clarification as to how restricted land is to be dealt with for mining leases. Although the drafting in the Bill does not yet clearly reflect this and the explanatory notes are contradictory on the issue, the intention is that consent of the owner and occupier of restricted land will not be required prior to the grant of the mining lease.

However, where the mining activity and the purpose of the restricted land can co-exist, consent of the owner and occupier of the restricted land will be required before the mining activity can be undertaken. If the mining activity and the purpose of the restricted land cannot co-exist, a compensation agreement is required (although it is not clear whether this is required before grant of the mining lease as the Bill and explanatory notes differ). Under the proposed amendments, it is the Minister who makes this "co-existence" determination, although it is not clear when this determination is to be made.

Overlapping tenements

The Bill replaces the current regime in the MRA and PAG in respect of overlapping coal and coal seam gas tenements. The regime in the Bill is intended to reflect the regime set out in the White Paper "Maximising utilisation of Queensland's coal and coal seam gas resources – a new approach to overlapping tenure in Queensland". There is still considerable uncertainty in the current drafting in the Bill. Further, many of the key details are to be contained in the regulations (which have not yet been released). Industry groups are currently preparing submissions to the Committee for Agriculture, Resources and the Environment about the regime proposed in the Bill. Given the importance of these issues, we will provide a further Insights article on the Bill's proposed overlapping tenement regime including the transitional provisions. The transitional provisions will have a significant impact on industry from commencement of the Act and industry will need to prepare well in advance for the changes.

Notification and objections

The bulk of the changes proposed in March have made it into the Bill, but with the following differences:

  • Right to object to MLs: You may recall the proposal that only landholders whose land is "directly affected" by the proposed ML and local governments could object to the ML application. The Department had initially indicated that "directly affected" would mean land directly underneath (the subject of) the ML. However, the concept of "directly affected" has been replaced by that of an "affected person" which also includes:
    • owners of land necessary for access to the ML
    • occupiers of both land the subject of the ML and land necessary for access to it; and
    • an entity that provides infrastructure (being "infrastructure relating to the transportation, movement, transmission or flow of anything"), which could include, for example: power lines, pipelines and railways.
  • Compensation: The proposal that a ML can be granted without compensation being first agreed or determined has not made it into the Bill (although there are some references to this concept in the explanatory notes).

As the Department had foreshadowed, the Bill also proposes a significant reduction to the matters that the Land Court is to consider when determining whether or not to grant the ML and removes overlaps with considerations that have to be made under the Environmental Protection Act 1994.

Further, in relation to environmental authorities, the Bill also proposes removal of public notice requirements where an EIS has been undertaken for the project under the Environmental Protection Act 1994 or the State Development and Public Works Organisation Act 1971. Although such a change is to be lauded in terms of reducing regulatory burden, it may have the undesired consequence of attracting more objections to the environmental authority as all submitters to the EIS will have the opportunity to convert their submission to the EIS to an objection rather than the much smaller pool of persons who generally respond to a public notice for the mining lease and environmental authority.

Dealings, caveats and associated agreements

Standardisation of these provisions across the MRA and PAG has already occurred, and the Department's stated intention was to transplant the standardised changes into the Bill. This has occurred to a certain extent. However, there have been some changes in the language used and many elements have been left to the regulations (which have not yet been released). Once the regulations are released, we will be able to better assess the extent of the changes including whether some of the changes in language are likely to have any significant consequences.

Next steps

Submissions on the Bill to the Committee were originally due on 30 June 2014, but have now been extended to 9 July 2014.

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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.