Queensland Government proposes establishment of Land Access Ombudsman

WHO SHOULD READ THIS

• Resources industry stakeholders.

THINGS YOU NEED TO KNOW

• The Queensland Government has introduced a Bill to establish a Land Access Ombudsman, which would facilitate the resolution of disputes between parties to conduct and compensation agreements and make-good agreements.

WHAT YOU NEED TO DO

• Submissions on the Bill and on the role of the Ombudsman are due by 23 June 2017.

On 23 May 2017, the Land Access Ombudsman Bill 2017 (Bill) was introduced to the Queensland Legislative Assembly.

The Bill stems from concerns, recognised by the Minister for Natural Resources and Mines, on the resources industry’s land access framework and the operation of the Gasfields Commission. The Minister identified the need for some operators to work harder at improving their social licence to operate.

He set out his concerns and some possible reform options at a three hour workshop he convened on 21 January 2016. In the room were representatives of the CSG producers and explorers, together with the industry associations covering resources in Queensland.

At that meeting, the Minister indicated that the Gasfields Commission and the land access framework for resources needed to be reviewed. This followed Cabinet support of a review in December 2015. The Minister also discussed the concept of a ‘Land Access Ombudsman’ – either as a separate function from or to be added to the role of the Gasfields Commission.

In March 2016, the Minister established the Gasfields Commission Independent Review, headed up by former Land Court member Mr Bob Scott. In the terms of reference, Mr Scott was asked to ‘investigate whether an alternative model, such as an independent Resources Ombudsman, is needed to provide a mechanism for dispute resolution between resource companies and landholders’.

The Minister released Mr Scott’s report, along with the Queensland Government’s response, on 1 December 2016.

Mr Scott’s report supported the establishment of an independent body to provide a mechanism for dispute resolution between resource companies and landholders in relation to conduct and compensation agreements (CCAs) and make-good agreements (MGAs).

Mr Scott recommended some changes to the structure of the Gasfields Commission. He also recommended that an Office of the Petroleum and Gas Moderator be established to assist parties to a dispute about alleged breaches of MGAs and CCAs – as a non-binding moderator.

In its response, the Queensland Government said that it supported the establishment of an independent body (the Land Access Ombudsman). Interestingly, at that time, the Queensland Government noted that it was not intended that the Land Access Ombudsman would deal with disputes under MGAs as it was considered that there are sufficient existing dispute resolution avenues for these agreements.

The Bill at a glance

If passed, the Bill would establish the Office of the Land Access Ombudsman. The Ombudsman is intended to provide an efficient and no-cost alternative dispute resolution service for parties who refer land access disputes to it.

The Bill contemplates that the Ombudsman:

• will have an investigative role in disputes surrounding alleged breaches of CCAs and MGAs
• can compel the production of documents and information from parties
• can refer matters to regulators in the Department of Natural Resources and Mines and Department of Environment and Heritage Protection
• will have the power to issue a report tabling a decision on the dispute, and
• will not have the power to make binding decisions.

Parties may still have recourse to the courts for determination of disputes.

The Bill also clarifies some ambiguities in the current requirements for notification, proposed joint development plans and information exchange between overlapping tenure parties under the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) and Petroleum and Gas (Production and Safety) Act 2004 (Qld).

Implications and potential submissions

The Bill has been referred to the Infrastructure, Planning and Natural Resources Committee, which will report back by 7 August 2017. Stakeholder submissions on the Bill are due by 23 June 2017. Details of the legislation and the Committee review process can be found here.

Initial comments on the Bill include:

• that it applies broadly to the resources industry, where previous reform discussions and the Gasfields Commission Independent Review centred primarily on the gas sector
• that it applies to MGAs (while this is in line with the recommendations of the Gasfields Report, it is contrary to the initial position of the Queensland Government)
• whether there is sufficient clarity around the role of a new statutory body in what is already a complex compliance and regulatory space for landholders
• the interplay between a referral to the Ombudsman and any agreed dispute resolution mechanisms in particular CCAs and MGAs, and
• uncertainty on administrative matters such as timeframes for the resolution of disputes, the threshold for referral, and the management of confidentiality.

Thank you to Lawyer Alex Skilling for her contribution to this article.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.