25 Oct 2018

Further reform to Queensland resources legislation - key changes that affect industry

By Mark Geritz, Jasmin Singh and Jon Prentice

The Mineral, Water and Other Legislation Amendment Bill 2018 makes significant changes to Queensland resources legislation.

Further significant reforms to the Queensland resources legislation have been made with the passing of the Mineral, Water and Other Legislation Amendment Bill 2018, with key changes set to affect industry.

On 18 October 2018, the Queensland Parliament passed the Mineral, Water and Other Legislation Amendment Bill 2018 (MWOLA Act). The MWOLA Act provisions, upon their respective commencement dates, make significant changes to the Queensland resources legislation. This article outlines some of the key changes that affect industry.

Some provisions of the MWOLA Act will commence from a date to be fixed by proclamation, whereas the remainder will commence from assent (expected within the next several days).  The commencement dates are referenced with respect to each set of provisions outlined below.

Changes to the statutory negotiation process

The MWOLA Act makes significant changes to the process of negotiation and dispute resolution for land access and compensation under the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCPA).

While this article will not repeat our commentary when the Bill was introduced in May, amendments were tabled in Parliament prior to the MWOLA Act passing that addressed concerns that parties were not entitled to legal representation in arbitration without consent of the other party or the arbitrator.  As a result of the amendments, either party may be legally represented at arbitration without requiring such consent.

Otherwise, the provisions of the MWOLA Act to the extent they amend MERCPA remain largely unaltered.  The provisions amending the statutory negotiation process will commence on a date to be fixed by proclamation.

While the above process provides a statutory mechanism for negotiating a conduct and compensation agreement, it is also important to note that the Land Access Ombudsman Act 2017 commenced with full effect as of 14 September 2018, which provides for another new statutory process available to landowners following the execution of conduct and compensation agreements (our analysis of the Act when tabled is here).

Mining leases – key amendments

In addition to the changes to MERCPA, the MWOLA Act also includes important changes to certain mining lease provisions of the Mineral Resources Act 1989 (MRA) outlined below.  Each of the amendments to the MRA specified below commence from assent.

Restricted land

The amendments remove the requirement that the landowner consent to include restricted land in a mining lease be obtained prior to the last objection day for the mining lease. Instead, the consent can now be given at any time prior to the grant of the lease.

In addition, a new process has been included to enable restricted land to be added to a granted mining lease, without the need for such an application to proceed under the full mining lease application provisions (including as an application for inclusion of additional surface area pursuant to section 275 of the MRA), which involves a public notification and objection process.  Under the new process, public notification will not be necessary, and only:

  • consent of the landowner; and
  • agreement for compensation,

are required before the Minister may include the relevant restricted land in the mining lease.

Reinsertion of pre-requisite tenure for mining lease applications

The requirement that a coal mining lease applicant either:

  • hold a form of pre-requisite tenure (ie. a prospecting permit, exploration permit or mineral development licence); or
  • have the consent of the underlying tenure holder,

has been reinstated. This requirement had previously been removed from the MRA by MERCPA.

Exemption from competitive tender for existing coal operations

Existing "coal mining projects" now have the ability to obtain additional land under an exploration permit (outside of the tender process for coal exploration permits) where such land is necessary for the operation of the coal mining project. These important changes make it easier for a coal mining project to be expanded into contiguous areas.

A "coal mining project" is defined as one or more coal interests (ie. exploration permit for coal, a  mineral development licence, a coal mining lease or an application for a coal mining lease) that is or includes a coal mining lease, or an application for a coal mining lease, if the authorised activities for the coal interests are or will be carried out as a single integrated operation.

Under the new provisions, the holder of, or applicant for, a coal mining lease that is, or is included in, a coal mining project, can apply for an exploration permit for coal for an area that is contiguous to "project land" (ie. land in the area of the tenements comprising the project). This right is subject to some limitations including that the area applied for must not be:

  • the subject of another coal interest, application for a coal exploration tenement or call for tenders; or
  • more than six sub-blocks.

Construction of haul road on access land

Amendments have been made to clarify that haul roads are permitted to be constructed and operated on access land for a mining lease, mineral development licence or mining claim. However, other activities such as running of powerlines or pipelines through or over access land will still require another approval such as a transportation mining lease.

Mining lease compensation – no automatic Land Court referral

Previously, there was provision for the chief executive to automatically refer matters of unresolved mining lease compensation to the Land Court after specified timeframes. Following the amendments in the MWOLA Act, if compensation has not been agreed or a party has not referred the matter to the Land Court within the specified timeframes, the Minister may refuse to grant the mining lease.

Confidentiality and publication regime

Amendments to the MRA and regulations have been included to set up a confidentiality and publication regime to allow DNRME to publically release data and information supplied to it by companies under the reporting requirements of the MRA. The confidentiality periods will be prescribed by the regulations.

Overlapping tenements – safety

Amendments have been made to the joint interaction management plan (JIMP) provisions of the Coal Mining Safety and Health Act 1999 and Petroleum and Gas (Production and Safety) Act 2004 to correct some inconsistencies and to clarify that the JIMP requirements apply to Petroleum Act 1923 tenures.

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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.