Dr Andrew Cannon - Flinders University - Modernising land use regulation: Beyond an adversarial mindset


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Dr Andrew Cannon delivered the presentation at the 2014 Land Access Forum.

The 5th annual Land Access Forum brought together Government departments, coal, CSG, UCG mining and exploration companies, mining and petroleum industry associations, landholders, law firms and consultants to discuss the new and emerging regulatory reforms, practicalities, challenges, and future directions of land access.

For more information about the event, please visit: http://bit.ly/landaccess14

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Dr Andrew Cannon - Flinders University - Modernising land use regulation: Beyond an adversarial mindset

  2. 2. OUTLINE • Historic winner takes all mindset to land access • Out dated regulatory frameworks for rights of access to land and obligations to manage it • Court dispute determination based on rights enforcement is ill adapted to managing competing interests
  3. 3. THE ADVERSARY MINDSET • In politics – question time • In the media – conflict = accuracy • In the courts – adversary dueling counsel • In multiple land uses – disputes
  4. 4. LAND TITLES ARE ABOUT POWER • Henry the Conqueror granted an Estate in Fee Simple to the Barons and their heirs • The gift of ownership was the foundation of centralised power • The King established courts that recognised this ownership • Fee Simple meant ownership of everything, even the serfs, but not the royal minerals gold and silver- Case of Mines 1568 (1568) 75 ER 472
  5. 5. TERRA AUSTRALIS 50,000+ years TERRA NULLIUS 226 years
  6. 6. Whereas it has been represented to me that divers of His Majesty’s subjects have taken possession of vacant lands of the Crown under the pretence of a treaty, bargain or contract for the purchase thereof with the Aboriginal natives … I the Governor … do hereby proclaim that every such treaty, bargain or contract is void and of no effect.
  8. 8. TORRENS TITLE REGISTRATION • Torrens Title registration- The Real Property Act 1886 • Absolute and indefeasible title: the foundation of economic development • Until 1880s mineral rights were granted with the freehold • Then mineral rights withheld and granted under a separate system
  9. 9. SEPARATE MINING TITLES • Separate title system developed for exploration and mining rights • All pre 1889 mineral rights were resumed by the Crown under the Mining Act 1971 – A person dispossessed could claim a private mine within three years. – Private mines are not registered under the RPA • Separate title system developed for oil and gas
  10. 10. SEABED JOINT REGIME • Fraser government in 1977 came to joint regime- legislation under 51(xxxviii)- Power of Imperial Parliament • Coastal Waters (State Powers) Act 1980 – States have jurisdiction over 3 mile limit – Petroleum (Submerged Lands) Act 1967 (Cth) passed as both State and CW legislation- control and royalties for contiguous zones shared to edge of continental shelf – Other minerals Minerals (Submerged Lands) Act 1981 (Cth)
  11. 11. ENVIRONMENT REGULATION Adelaide Dolphin Sanctuary Act 2005 (SA); Arkaroola Protection Act 2012 (SA); Development Act 1993 (SA); Environment Protection Act 1993 (SA); Marine Parks Act 1997 (SA); National Parks and Wildlife Act 1972 (SA); Native Vegetation Act 1991 (SA); Natural Resources Management Act 2004 (SA); Pastoral Land Management and Conservation Act 1989(SA); Radiation Protection and Control Act 1982(SA); River Murray Act 2003 (SA); Wilderness Protection Act 1992 (SA); Heritage Places Act 1993 (SA) And then the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (Cth)
  12. 12. OTHER RESOURCE TITLES • Water rights – Murray Darling Basin Plan – State plans managing water allocation and use – Tradeable so another registration system • Environmental rights and obligations – State systems- eg SA Natural resource Management plans affecting all uses – Commonwealth overlay for major projects – They apply to mining operations
  13. 13. NATIVE TITLE • Mabo, Wik, Yorta Yorta • Native title tribunal • SA has 3 regimes: – Pastoral, oil and petroleum: Commonwealth native title regime – Mining: Part 9B Mining Act 1971 (SA) and Pt 7 Opal Mining Act (SA) 1991 recognised by the Commonwealth – Indigenous land use agreements (ILUAs) • Aboriginal Heritage Act 1988 (SA) – s 23 offence to disturb a site • Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
  14. 14. WINDMILLS • Approvals managed under fast track planning laws
  15. 15. AUSTRALIAN LAND LAW UNTIL 1991 Land was owned by: • An Estate in Fee Simple (freehold title) – Subsidiary interests of leaseholds, trusts, mortgages etc at discretion of the owner • Crown leasehold- pastoral leases – Subsidiary interests of leaseholds, trusts, mortgages etc subject to Crown consent • Torrens title system provided certainty • Certainty underpins economic activity • Mining and oil and gas rights granted under separate title systems
  16. 16. AUSTRALIAN LAND LAW 2014 • Freehold and leasehold registered • Mining titles under separate system • Separate titles for oil, gas and geothermal • Separate regime for coastal waters • Pre-existing native title identified under CW native title regime, state regime, ILUA … • Aboriginal heritage protection: Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) + State regimes • Water- Murray Darling basin plan and State regulation • Environment – State and CW regulation • Windmills and planning regulation = uncertainty
  17. 17. We need a better registration system to provide certainty around these coincident interests
  18. 18. THE COURT SYSTEM • Enforcing order- criminal law; and rights – debt, contract, damages for injury etc not balancing competing interests • Adversary process that drives people apart • Non expert, non participating decision maker • Static: i.e. decision at one time, not dynamic • Parties lose control • Public
  19. 19. MEDIATION IS BETTER • Interest not rights based • Private • Ongoing relationships • Trust • Continuity and transparency • Reframe language • But do need a WATNA
  20. 20. ENFORCEMENT • Enforcement has been moved from lower courts (Wardens Courts and specialist tribunals) to government departments • Parties are increasingly seeking recourse to review of decisions in the Supreme Court • In SA decisions such as Ocsalt v Minister [2012] SASC 166, Mintech v Russell-Taylor [2012] SASCFC 67: The Supreme Court has endorsed huge delays and gross breaches of conditions • Rigorous enforcement of the obligations in tenements is at risk • Administrative review cases in higher courts can be expensive, slow and unpredictable
  21. 21. SPECIALIST TRIBUNAL • No costs • Non adversarial • Expert and can inform itself • Minimal pleadings and pretrial processes • Use of mediation techniques • Early trial dates • Lawyering for solutions not victory • Or specialist arbitration processes
  24. 24. SUMMARY • Titles reflect power and control • The concept of freehold title having unbridled rights is long gone • Coincident land, native title and mining title rights, windmills, and water rights and protections need to be reconciled • All resource users need certainty to finance their operations and to look after the land for future generations
  25. 25. CONCLUSIONS • Update registration systems to provide certainty • Move beyond an adversary mindset • Relationship management not third party dispute determination • Specialist tribunals or arbitration where all else fails