Presented by 
James Plumb, Partner 
Major legislative reform in Queensland 
The Common Provisions Bill 
Changes to the lan...
www.carternewell.com© Carter Newell 2014 
–2– 
Mineral and Energy Resources (Common Provisions) Bill 2014 
'Common Provis...
www.carternewell.com© Carter Newell 2014 
–3– 
Common Provisions Bill 
Referred to Agricultural, Resource and Environment...
www.carternewell.com© Carter Newell 2014 
–4– 
The Land Access Framework Background 
Queensland Land Access Framework –20...
www.carternewell.com© Carter Newell 2014 
–5– 
Land accessImplementation Committee Report 
Six Point Action Plan: 
1.Cond...
www.carternewell.com© Carter Newell 2014 
–6– 
Opt-out agreements (OOAs) 
Clause 45 of Common Provisions Bill: 
An owner...
www.carternewell.com© Carter Newell 2014 
–7– 
Opt-out agreementsSubmissions 
Possibly encourage poor conduct on part of ...
www.carternewell.com© Carter Newell 2014 
–8– 
New CCAs and OOAs to be on title 
Clause 90 of the Common Resources Bill: ...
www.carternewell.com© Carter Newell 2014 
–9– 
Existing CCAs to be recorded on title 
Clause 207 of Common Provisions Bil...
www.carternewell.com© Carter Newell 2014 
–10– 
Binding on successors? 
Clause 93 of the Common Provision Bill -CCAs are ...
www.carternewell.com© Carter Newell 2014 
–11– 
An expanding Land Court jurisdictionClause 94 of the Common Provisions Bil...
www.carternewell.com© Carter Newell 2014 
–12– 
Timing of accessApplications to Land Court 
Common Provision Bill to intr...
www.carternewell.com© Carter Newell 2014 
–13– 
Oral access agreementsAccess land 
Clause 47 -resource authority holder m...
www.carternewell.com© Carter Newell 2014 
–14– 
Other items to note 
Clause 54 -periodic notice to owners and occupiers a...
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Brisbane QLD Australia 4000 
GPO Box 2232 
Brisbane QLD 4001 
Phone+61 7 3000 830...
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James Plumb - Carter Newell Lawyers - Major legislative reform in Queensland – the Mineral and Energy Resources (Common Provisions) Bill 2014 – implications to the Queensland land access framework

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James Plumb 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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James Plumb - Carter Newell Lawyers - Major legislative reform in Queensland – the Mineral and Energy Resources (Common Provisions) Bill 2014 – implications to the Queensland land access framework

  1. 1. Presented by James Plumb, Partner Major legislative reform in Queensland The Common Provisions Bill Changes to the land access framework
  2. 2. www.carternewell.com© Carter Newell 2014 –2– Mineral and Energy Resources (Common Provisions) Bill 2014 'Common Provisions Bill' introduced 5 June 2014; Key step in the Modernising Queensland Resource Acts Program (MQRAP).
  3. 3. www.carternewell.com© Carter Newell 2014 –3– Common Provisions Bill Referred to Agricultural, Resource and Environment Parliamentary Committee -Committee to report by 5 September; 283 submissions on Bill; Public hearings in Toowoomba, Mackay, Townsville and Brisbane; Draft Regulation has not yet been released –absence of detail around certain land access provisions contained in the Bill.
  4. 4. www.carternewell.com© Carter Newell 2014 –4– The Land Access Framework Background Queensland Land Access Framework –2010: CCAs before accessing private land to undertake 'advanced activities‘; Mandatory dispute resolution mechanism for CCA negotiations; reference to Land Court as a 'last resort‘; Current compensatableheads. Land Access Review Panel –February 2012: Framework had 'often not improved working relationships‘; 12 recommendations. Six Point Action Plan –December 2012 Land Access Implementation Committee–February 2013: Established to 'advise and oversee the policy development to support the implementation'of the Six Point Action Plan.
  5. 5. www.carternewell.com© Carter Newell 2014 –5– Land accessImplementation Committee Report Six Point Action Plan: 1.Conduct and compensation: a)Not 'prudent for government to intervene …and further legislate heads of compensation‘. b)Legislative change necessary to Land Court to consider behaviour. 2.Introduce an alternative dispute resolution process, independent of government -establish a panel of pre-vetted independent ADR specialists; 3.Note CCAs on title; 4.Allow parties to agree to opt-out of the requirement for a formal CCA at the election of landholder; 5.Develop standard CCAs for mineral, coal and CSG industries in partnership with the resource and agricultural sectors; 6.Implement improved land access information and guidance. A number of these recommendations included in Common Provisions Bill.
  6. 6. www.carternewell.com© Carter Newell 2014 –6– Opt-out agreements (OOAs) Clause 45 of Common Provisions Bill: An owner or occupier of land may opt out of entering into a CCA or a deferral agreement with a resource authority holder: will not negate liability to compensate all owners and occupiers; invalid if not in compliance with prescribed requirements (TBA); 10 business day cooling off period; unlikely to bind successors;
  7. 7. www.carternewell.com© Carter Newell 2014 –7– Opt-out agreementsSubmissions Possibly encourage poor conduct on part of resource authority holders –fear that authority holders will seek opt-out agreements in preference to CCAs. Currently no limitations as to circumstances under which an opt-out agreement can be made; however, Explanatory Notes states: 'allow parties, at the request of the landholder, to opt-out of negotiating a CCA where an established relationship exists' [emphasis added]; 'designed to provide parties with a longstanding, positive relationship, the opportunity to determine their own, suitable agreement' [emphasis added]. Suggestion that legislation should provide an avenue for a purchaser of land where an opt-out agreement is in place to have the right to enter into a CCA (however, as opt-out agreement unlikely to bind successors and assigns, probably not necessary).
  8. 8. www.carternewell.com© Carter Newell 2014 –8– New CCAs and OOAs to be on title Clause 90 of the Common Resources Bill: A resource authority holder that is a party to either a CCA or an opt-out agreement must give the registrar notice of the agreement: notice to be given within 28 days after entering into the agreement; authority holder must give registrar notice within 28 days after the agreement ends; registration costs to be borne by authority holders. No equivalent provision for access agreements or deferral agreements?
  9. 9. www.carternewell.com© Carter Newell 2014 –9– Existing CCAs to be recorded on title Clause 207 of Common Provisions Bill -CCAs already in force must give the registrar notice of the agreement within 6 months of commencement. Requirement to register and remove agreements (new CCAs and OOAs, existing CCAs) is a condition of the resource authority: Large administrative burden at end of tenure; What happens when the parties are in dispute as to the status of a CCA or OOA?
  10. 10. www.carternewell.com© Carter Newell 2014 –10– Binding on successors? Clause 93 of the Common Provision Bill -CCAs are for the benefit of, and will be binding upon: 'the personal representatives, successors and assigns of the eligible claimant and the resource authority holder.' [emphasis added] Contrast provision relating to access agreements –clause 79: 'the personal representatives, successors in title and assigns.‘ Explanatory memorandum: 'Clause 93 provides that a conduct and compensation agreement … binds all parties to it and each of their personal representatives, regardless of any change in the tenure holder or public road authority. The agreement also binds all successors and assigns.' No equivalent provision for OOAs.
  11. 11. www.carternewell.com© Carter Newell 2014 –11– An expanding Land Court jurisdictionClause 94 of the Common Provisions Bill If negotiation process is unsuccessful, a party can apply to Land Court to decide authority holder’s obligations or limitations when carrying out authorisedactivities on the eligible party’s land. Land Court may have regard to thebehaviour of the parties in the process leading to such an application. The Land Court may make the following orders: Non-monetary / monetary compensation; That a party may not engage in particular conduct; That parties attend a conference or engage in further ADR. Precise implications are unclear at this stage.
  12. 12. www.carternewell.com© Carter Newell 2014 –12– Timing of accessApplications to Land Court Common Provision Bill to introduce additional element for access in absence of agreement. Currently, access to private land permitted if each eligible claimant for the land is party to a Land Court proceeding to determine compensation liability. As proposed, no need for CCA (or for entry notice) if: d)each owner and occupier of the land is an applicant or respondent to an application relating to the Land being considered by the Land Court under section 94.[emphasis added] (clause 43 –see also clause 40 re entry notices)
  13. 13. www.carternewell.com© Carter Newell 2014 –13– Oral access agreementsAccess land Clause 47 -resource authority holder may exercise an ‘access right’ over ‘access land’ if each occupier of the land has agreed orallyor in writing to the exercise of the right. Access land –land outside the authorised area of the resource authority, that it is reasonable necessary to allow the holder to cross in order to enter the authorised area. Access rights –the right to: cross the access land if it is reasonably necessary to allow the authority holder to enter the authorised area; and carry out activities on the access land that are reasonably necessary to allow the crossing of the land. Agreement with ‘owner’ only required if exercising the access rights will have a ‘permanent impact’. Access agreements to be binding on 'personal representatives, successors in title and assigns’.
  14. 14. www.carternewell.com© Carter Newell 2014 –14– Other items to note Clause 54 -periodic notice to owners and occupiers after entry of land to carry out authorised activities or to exercise access rights over land (information and notice periods TBA). Clause 78 -resource authority holder that becomes aware of a change to an owner or occupier of land must provide copy of entry notice or waiver of entry notice within 15 Business Days for it to bind new party. Definition of ‘occupier’ –remains unchanged. Transitional provisions –reference to agreements being negotiated.
  15. 15. Brisbane Level 13, 215 Adelaide Street Brisbane QLD Australia 4000 GPO Box 2232 Brisbane QLD 4001 Phone+61 7 3000 8300 Emailcn@carternewell.com Sydney Level 6, 60 Pitt Street Sydney NSW Australia 2000 Phone+61 2 9241 6808 Melbourne 280 Queen Street Melbourne VIC Australia 3000 (Via Agency) www.carternewell.com

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