The stance of Natural Resources and Mines Minister Andrew Cripps in respect to the Common Provisions Bill demands a response. Words such as ‘consistency’ and ‘certainty for landholders’ roll easily off the tongue but have a tough time withstanding scrutiny. Time and space prevent a proper dissection of the issues, but some brief points must be made. Fundamentally, suggesting land holder rights should be proportionate to the size of a mine belittles the impact ‘small’ mines can have. Try telling a landholder who is forced to accommodate a mine on his property these impacts are ‘small’.
The minister also suggests that the “restricted land” changes bring “consistency between gas and mining sectors” as if that is good for landholders. The amendments totally remove protection of stockyards, bores, dams and water troughs from coalmining and exploration. An extra 100 metres around a residence is a poor trade-off for those removals. The minister can override that ‘protection’ under this bill anyway. These amendments just happen to undermine (literally) one of the few areas that are still sacrosanct to landholders for virtually no return to them.
The only ‘certainty’ is that rights, and incidental bargaining power in some cases, have been lost. It is misleading to claim there is ‘increased protection’ from gas activities in allowing a buffer of 200m for the (new and limited) restricted areas, or that this introduces protection from gas activities ‘for the first time’. Aside from the fact all existing gas projects are exempted, the fact is that under the existing law, the court can order a reduction in the gas activities where an unreasonable interference in the landholder’s use of his land will occur. I have no doubt wells within 500m (and further in some cases) would not be allowed by a court. The amendments create a public perception that only 200m is required.
The minister is not doing much to disavow people of that or draw attention to these existing protections. Likewise, the minister misinforms when he suggests that directly affected landholders and councils still have the right of objection to a mining lease. That may be technically so, but only a shell of the previous rights remains. Firstly, the definition of ‘directly affected’ landholders only extends to the landowner on whose land the mine will operate and not neighbours or broader communities. Those rights of objection are lost altogether for all mining leases. You need only ask any neighbour to a coalmine how they feel about that. The reality is the resource company will buy properties they want to mine and leave neighbours and communities with no right of objection to the grant of the lease. Councils will only be able to object on very limited grounds designed, ironically, to protect their assets.
Even if the company hasn’t bought the property already, the grounds on which the directly affected landholder can object have been changed drastically. A number of the previous grounds the court can consider are removed altogether (including specifically the public interest test, the past performance of the applicant and ‘any other good reason’). Why remove ‘any other good reason’ and the broad oversight that allows – even the minister now can’t refuse on that critical ground. Certainty for mining now means poor protection for the rest. It is no coincidence that these laws follow several court decisions in Queensland and NSW that found proponents grossly overstated the economic benefits of mines and/or recommended refusal of mining leases altogether. While some grounds for refusal will now be vested in the minister, the fact is the minister has a clear conflict of interest and bias in making these decisions, given the royalties involved alone.
That natural justice consideration alone militates retaining court involvement. The minister also repeats the current line that these broader interests are protected by having the rest of the community able to (only) have input into the Environmental Authority conditioning. Objecting to an EA is a completely different thing to objecting to the grant of the mining lease in the first place. One is permission to do it, the other is about how you do it. The public interest, economic arguments, the history of the applicant, any other good reason et cetera will not generally be relevant to the EA test. Actually stopping a mine will be near impossible under the EA process. Besides, successive Queensland governments have progressively made objecting to EAs a complicated and expensive procedure that exposes objectors to costs and imposes limitations on how the action can be conducted. There will be few people able to comply with all the hoops that have to be jumped through to have a meaningful say in the EA process.
Finally, the suggestion that ‘opt out’ agreements will protect landholders just beggars belief. The full extent of protection contained in the bill is the need to sign and lodge a form wherein the landholder confirms they are wanting to opt out and that they are acting independently. There is no specific obligation of the companies to behave themselves in such dealings, no code of conduct, nor any ability to address sharp practices. To say this document ensures landholders are protected is as ludicrous as saying all landholders stand in an equal bargaining position with the companies, or that companies won’t engage in sharp practices to get that letter signed.
Written by Peter Shannon
Written by Shine Lawyers. Last modified: January 8, 2020.