28 Apr 2016

Coming soon - more amendments to Queensland resources legislation are another hit for the industry

by Mark Geritz, Catherine Phillips

MOLA would return certain landholder and community objection rights and further amend the restricted land regime and the revised overlapping tenure (coal and coal seam gas) framework.

At a time of low commodity prices leading to a struggling resources industry, legislation was introduced to Queensland Parliament on 23 February 2016, which, among other changes, proposes to restore landholder and community objection rights and restore rights of landholders to veto mining in relation to certain restricted land.

The Mineral and Other Legislation Amendment Bill 2016 (Qld) (MOLA) would amend the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCPA), which is expected to commence on 27 September 2016 (unless proclaimed earlier). This is an unusual scenario where amendments are being made to legislation which was passed in 2014 but still (in most part) has not commenced.

The amendments proposed by MOLA were anticipated following the Queensland Government election in January 2015 and follows other legislation passed by the incoming Government to restore objection rights to environmental authorities that had been assessed by the Coordinator-General.

If MOLA is passed in its current form, it will end a period of uncertainty and debate surrounding the restoration of landholder and community objection rights and the applicable restricted land regime, as well as further amendments to the revised overlapping tenure (coal and coal seam gas) framework.

The practical implications of the changes proposed by MOLA are outlined below.

Objection rights

MOLA would reinstate the public notification and broad community objection rights by repealing the yet to be commenced changes to the Environment Protection Act 1994 (EP Act) and the Mineral Resources Act 1989 (MRA) contained in MERCPA.

Under MERCPA, limitations were proposed on objection rights to mining leases to people directly impacted by the mining operations.

If MOLA is passed in its current form, all members of the community will have the right to object to the Land Court about any mining lease, despite an objector not being an owner of land within or adjacent to the mining lease application area, or having any connection to the land or the area in which the mining lease is being sought.

MOLA also proposes to reinstate the public notification obligations, so that the proponent of a mining lease application will need to publish a notice of the application in the relevant local newspapers and not simply provide notice of the application to those directly impacted by the mining operations as proposed by MERCPA.

Restricted land

The restricted land framework under MERCPA was proposed to give landowners the right to veto resource activities within 200 metres (currently 100 metres for mining tenements under the MRA only) of their homes, places of worship, businesses, childcare centres and hospitals, along with other prescribed places and structures. However, certain agricultural infrastructure included within the current MRA definition was not included within the restricted land framework.

MOLA proposes to extend the restricted land framework proposed by MERCPA (or substantially return it to the pre-MERCPA position) to include this agricultural infrastructure being principal stockyards, bores, artesian wells, dams and water storage facilities within a protection zone of 50 metres, MOLA also proposes to distinguish between the above provisions which will apply to production and exploration resource authorities and other resource authorities where the protected zone will be 50 metres for all of the prescribed infrastructure.

MOLA also proposes to remove the ministerial power to extinguish restricted land on mining leases where coexistence is not possible and allow the grant of the mining lease over restricted land without requiring landholder consent.

Overlapping tenure

MOLA contains amendments to MERCPA that intend to address industry concerns and clarify the operations of the overlapping tenure framework for coal and coal seam gas. If passed, the amendments proposed in MOLA will:

  • reduce the requirement to have a joint development plan to situations involving overlapping production tenures (ie. a Mining Lease and a Petroleum Lease);
  • replace the concepts of proposed and agreed mining commencement dates with a single mining commencement date, which is identified by the coal resource authority holder;
  • preserve existing industry commercial arrangements where not inconsistent with certain mandatory provisions;
  • strengthen requirements for information exchange between overlapping tenure holders;
  • clarify the operation of the dispute resolution process; and
  • clarify transitional provisions and other minor miscellaneous provisions.

Other amendments

Other amendments to MERCPA proposed by MOLA include:

  • clarification of the intended operation of the transitional provisions for land access arrangements in MERCPA; and
  • introduction of a regulatory framework for entering land to identify mining boundaries (such as for a mining lease application) without a mining tenement.

Next steps

MOLA has been referred to the Infrastructure Planning and Natural Resources Committee for examination. The Committee will provide its report to the Queensland Legislative Assembly by 10 May 2016.

If you would like discuss the implications of MERCPA or MOLA for your business, please contact Mark Geritz.

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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.