Introducing Rangeland Leases and other reforms

On 22 January 2016, the Minister for Lands, the Honourable Terry Redman MLA announced the drafting of the Land Administration Amendment Bill 2016 (Bill).  The Bill will amend the Land Administration Act 1997 (WA) (LAA) and create a new form of land tenure known as the rangelands lease (Rangelands Lease). The draft Bill is expected to be released for comment in April 2016.

Rangelands Leases are designed to provide an alternative to the significant limitations on land use imposed on pastoral leases and therefore maximise the potential of WA’s vast rangelands by enabling multiple and varied land uses. This is intended to create new economic and social opportunities and enable the development of more sustainable business models for those rangelands.

Currently, pastoral lessees are restricted to using their pastoral leases for limited defined pastoral purposes, and certain additional purposes permitted by way of a diversification permit.  Under the LAA, “pastoral purposes” is limited to commercial grazing of livestock and agricultural, horticultural and other supplementary uses of land essential to, or normally carried out in conjunction with grazing of livestock.

The Department of Lands has identified possible permitted uses for Rangelands Leases as including:

  • multiple uses such as grazing livestock, horticulture, agriculture and tourism;
  • Aboriginal economic development and land management;
  • activities of mining companies for environmental offsets, rehabilitation obligations or where their activities are substantially inconsistent with pastoral uses;
  • conservation purposes; and
  • rangelands use in conjunction with off-lease activities.

It has also been confirmed that Rangelands Leases will not confer exclusive possession and will be subject to a reservation in favour of Aboriginal persons allowing entry to seek sustenance in their accustomed manner, in terms similar to section 104 of the LAA which applies to pastoral leases.

Rangelands Leases are not intended to replace pastoral leases but will be available in addition to them, along with other existing forms of land tenure available under the LAA. Existing pastoral lessees will have a right (but not the obligation) to convert their lease to a Rangelands Lease.  As this is expected to trigger a future act process under the Native Title Act 1993 (Cth), it is uncertain whether many existing leaseholders will consider that path.

Other important changes to be included in this Bill are:

  • an increase in the term of pastoral leases to 50 years (subject to native title processes); and
  • an increase in the maximum area of lease holdings from 500,000 hectares to 1,500,000 hectares before the Minister for Lands must be satisfied that it is in the public interest. This will apply to pastoral leases and Rangeland Leases.

While we await the significant detail that will be set out in the Bill, there are some obvious implications for the mining industry that will arise from an increase in competing land uses.

Implications for miners

Increased and varied use of the rangelands in WA will necessarily mean more competition between the various land users and greater potential for conflict with mining activities.

It is intended that Rangelands Leases will be treated under the Mining Act 1978 (WA) (Mining Act) in the same way as pastoral leases.  This means rights of access to fossick, explore or mine on a mining tenement that overlaps a Rangelands Lease will be prevented in certain areas without the consent of the lessee.  These areas include areas under, or within 100 metres of areas under, crop and areas that are within 100m of any land in actual occupation or on which a house or other substantial building is erected.

Given the stated intention of this land tenure reform is to encourage investment opportunities and broader use of these lands, it can be expected that it will result in an increase in the areas impacted by these restrictions.

One other matter of particular concern for the mining industry has been the reference to Rangeland Leases being available for conservation purposes and whether that will create additional access problems for future exploration and mining. In response, the Government has said that this reform does not propose to change the Minister for Mines’ ability to grant tenements over land held under Rangeland Leases and that a lease applicant will need to acknowledge that mining activities on the land are possible.  That does not of course preclude a conservation party from objecting to the grant of the mining tenement, just as we see such objections from pastoralists currently.  

It seems clear that there will be an increased need for parties to consult and negotiate access to land as the occupation and diversity of use of these lands increases.

The Department of Lands has also flagged that one other consequential change will be the inclusion in the Mining Act of compensation to the lessee of a Rangelands Lease or a pastoral lease for mining activities which result in a requirement to surrender carbon credits under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth).

There is a positive for the mining industry in these reforms. A significant proportion of pastoral leases are currently held by mining companies. Like all such lessees they are obliged to utilise those lands for the authorised “pastoral purposes”, which may not be their most suitable use.  With the alternative of the Rangelands Lease, companies may find a more appropriate form of land tenure for their purpose, one that would enable utilising areas that are not planned for mining for other more broader purposes, including conservation.