20 Mar 2014

Drastic changes to restricted land proposed for Queensland mining and petroleum tenements

by Mark Geritz, Prue Harvey

Proposed changes to restricted land and associated land access provisions could introduce restricted land to petroleum tenements for the first time, as well as altering the current system of restricted land for mining exploration tenements.

Elsewhere in this edition we discuss a proposal under which mining leases with surface area rights would no longer be subject to restricted land exclusions, and indicate that other changes were proposed for the restricted land framework across the various resources tenures including for petroleum tenements.

These further proposed changes are included in the Department of Natural Resources and Mines' (DNRM) Consultation Regulatory Impact Statement, "Towards a standardised consent framework for restricted land across all resource types".

The Regulatory Impact Statement has been released as part of the Modernising Queensland's Resources Act (MQRA) Program, and the changes aim to provide a single framework for landholders and tenement holders for dealings across all resource tenures (except mining leases).

We'll outline the changes for mining exploration tenements and petroleum tenements below.

Changes for mining tenements  

Under the new regime, the definition of "restricted land" would be amended.

The current definition includes:

  • land within 100m of a building used as a place of worship, for accommodation, business, community, sporting, or recreational purposes; and
  • land within 50m of a principal stockyard, bore or artisan well, dam, cemetery or burial place, and any other artificial water storage connected to a water supply.

Mining tenement holders cannot conduct activities on restricted land unless they have the consent of the landholder.

There is also a 600m radius around occupied residences or schools within which activities that would otherwise be preliminary activities become advanced activities and therefore can only be conducted with a Conduct and Compensation Agreement (CCA) or a Land Court determination after complying with the statutory negotiation process.

The new regime contemplates that both the current concepts of restricted land and the 600m rule are to be replaced by the new proposed definition of restricted land.

That definition narrows the relevant structures to: residences, places of worship, buildings for a business purpose (including schools), intensive animal husbandry (such as feedlots), and cemeteries or burial places. This means that many of the water-related structures (such as dams, artificial water storage and connection structures) will no longer be relevant.

However, the radius of restricted land will be changed to 200m from these new structures.

Changes for petroleum tenements

The current regime for petroleum exploration and production tenements includes no concept of restricted land, and simply provides for a 600m radius around occupied residences or schools within which activities that would otherwise be preliminary activities become advanced activities and therefore can only be conducted with a CCA or a Land Court determination after complying with the statutory negotiation process.

Neighbouring properties not within the permit boundary have no current rights outside protection provided by the environmental authority.

Under the proposed changes the 600m rule will be replaced by "restricted land", that will include any land within 200m of the structures specified above. The changes will also protect structures on neighbouring properties, as consent will be required from any landholder whose specified structure is within 200m of the proposed activities. This consent is proposed to be required irrespective of whether the landholder's property is within the permit boundary.

This would be a significant change for the petroleum industry who have never been subject to a requirement to obtain consent for restricted land, and the potential for areas to be sterilised where consent cannot be obtained.

Next steps

Submissions can be made on the Consultation Regulatory Impact Statement until 28 March 2014. Submissions are to be made to the MQRA Program, and can occur via email to mqra@dnrm.qld.gov.au.

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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.