Senate debates

Wednesday, 19 June 2013


Environment Protection and Biodiversity Conservation Amendment Bill 2013; In Committee

9:31 am

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Hansard source

When the committee adjourned consideration and reported to the chamber just prior to question time yesterday, I was in the midst of making some comments regarding the amendment before the chamber, which is the Australian Greens amendment to extend and dramatically change the way in which ownership of minerals is recognised, by doing it with a backdoor method by essentially giving carte blanche power to landowners to be able to block any type of mineral exploration or development on their properties.

I gave the chamber some background on the very extensive history of state laws in this area, as did Senator Joyce, at length. We recognised in those contributions the genuine concerns of landowners and adjourning landowners, which need to be managed carefully. But I think it is important we recognise that laws as they exist at a state level at present do provide levels of process to ensure consent is ideally given and, if not, that mediation processes are undertaken. Not always do these processes provide the perfect outcome, but this Greens amendment would be a complete and utter over-reaction to the lack of perfection in some of those state processes.

To understand exactly where the states are in terms of their assessment of applications, and the processes they go through, I thought it would be useful for the chamber if in a reasonable quick way we went through step by step what some of those processes are. Importantly, there are distinctions between exploration activities and production activities in terms of the rights of landowners and the way in which consent is given or allowed.

For landowners in New South Wales, under the Petroleum (Onshore) Act 1991 as it currently stands, if a petroleum licence holder seeking to undertake exploration seeks to enter a property, a written notice detailing the licence holder's intention to obtain an access agreement must be served on the landowner. The licence holder and landholder must then reach an access agreement in order for such exploration activity to be undertaken. If that access agreement cannot be reached within 20 days of the serving of the notice of intention then an arbiter may be appointed whose role is to facilitate a conciliated agreement. If an agreement still cannot be reached, the arbiter is then bound to make a decision on access arrangements. This initial decision is known as an interim determination to allow for it to be varied either by the landholder or by the petroleum exploration licence holder subject to the agreement of both parties. If within 14 days no agreement variation is made to the interim determination, the determination becomes the arbiter's final determination. However, as a further right of recourse either party may apply for a review of the arbiter's final determination through appeal to the Land and Environment Court.

An access agreement may include arrangements for the time period for which access is permitted. It may identify the parts of the land that may be explored. It may identify the kinds of activities that can take place. It may identify the conditions that must be observed during the activities that are being undertaken. It may identify measures surrounding the protection of the environment. Importantly, it may identify the relevant compensation to be provided to the landholder. A licence holder cannot carry out any activity on the landholder's land other than which is prescribed in the access agreement.

Compensation, which as I indicated is a very, very important part of the agreement process, can be agreed to under the access agreement or determined separately. The licence holder is liable to compensate the landholder or every person having an estate or interest for any loss or interference as a result of any operations conducted by the licence holder. That is an important point and one that should be emphasised in this debate: the licence holder, the party planning to undertake exploration, is liable to compensate the landholder for any loss or interference as a result of any operations conducted by the licence holder. A licence holder cannot undertake any exploration activity on any land within 200 metres of a dwelling house, within 50 metres of a garden, vineyard or orchard or over any improvements or valuable work structure except with the written consent of the landholder. Those are the features in relation to exploration activities.

There are other features in relation to production and others in terms of how the Petroleum (Onshore) Act 1991 works in New South Wales. It is also relevant to note that there must also be appropriate development consent given under the New South Wales Environmental Planning and Assessment Act 1979. So there are several hurdles that must be cleared. Under the Petroleum (Onshore) Act 1991, New South Wales must grant an approval. Under the New South Wales Environmental Planning and Assessment Act 1979, New South Wales must grant an approval. And, as we know—and are debating extending this—at the federal level there is the Environment Protection and Biodiversity Conservation Act, and approval must be granted there.

In relation to production activities in New South Wales, a licence holder cannot carry out any mining operations or erect any works on the surface of any land that is under cultivation except with the consent of the landholder. Cultivation for the growth and spread of pasture grasses is not considered cultivation within the meaning of the act, though. The minister may, however, permit mining operations on land under cultivation if the minister considers that the circumstances warrant it.

There is no requirement in relation to production to enter into an access agreement. However, provisions relating to compensation—which I outlined before—and to the protection of homes and gardens and other areas that are applicable to exploration licences also apply to production leases. Once again, the compensation provisions state that any landholder must be compensated for any loss or interference as a result of any operations conducted by a licence holder.

I understand that there are legislative changes before the New South Wales parliament at present that again are responding to the types of concerns that have driven the debate on this measure by the Greens in this place. But it comes back to the fundamental point that these decisions—the management of legislation regarding land access undertakings—rightly belong at the state level. They are rightly decisions for state governments, as has been the case for more than 100 years. Constitutionally, as the government has indicated, it is likely that they must be decisions for state governments. So this chamber would find itself, and this parliament would find itself, exposing the Commonwealth government to a High Court battle in which the states, wanting to protect their rights in relation to land access and mining arrangements, would be taking on the Commonwealth should we pass this bill in an amended form as proposed by the Greens. For these reasons, and because of the many concerns we have about how significant this would be in overturning the longstanding practice of Australian law in relation to land management, the coalition again emphasises that it cannot possibly support the Greens amendment.

The CHAIRMAN: Before I call Senator Waters I will just remind the chamber that the question that is before the chair at the moment is that amendment 1 on 7375, moved by Senator Waters, be agreed to. It was remiss of me to not indicate that up-front.


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