The WA Government recognises the rangelands (which cover 87% of WA, excluding the South West) are a valuable economic resource for all Western Australians. To tap into that resource, the State is proposing reforms to allow more diverse uses of the rangelands, while ensuring development is sustainable. These reforms include proposed changes for pastoral leases.
The latest step in the reform process was the release of the draft Land Administration Amendment Bill 2016 (Draft Bill) by the Department of Lands on 5 April 2016. Submissions on the Draft Bill are due by 5pm on 5 May 2016 and the Minister for Lands, Terry Redman, is looking to introduce the Draft Bill into WA Parliament in August.
Here’s our take on what these reforms mean for the agricultural, pastoral, resources and finance industries, along with some key issues to watch.
What are the Rangelands?
87% of Western Australia is Rangelands, comprising approximately one third pastoral leases, with the remainder being unallocated crown land, unmanaged reserves, the conservation estate and other tenure. Most of the Rangelands are subject to native title claims and determinations.
New rangelands lease to allow more diverse uses
The new rangelands lease
The central piece of the reform is to introduce the new rangelands lease. Unlike pastoral leases, which only allow use of land for pastoral purposes, rangelands leases will allow more diverse uses. They “may be granted for any purpose that is…principally consistent with the preservation of the rangelands as a natural resource”. The Minister will have a broad discretion to apply conditions, confer one or more options to renew and specify the lease term.
Parties wanting to use the Rangelands for purposes other than grazing can be creative about proposing arrangements that combine broad-scale and/or intensive uses, but the Minister will have broad discretion as to whether to allow the proposal. In many cases, intensive land uses may not be consistent with general obligations on rangelands lessees to manage the land and maintain indigenous pasture and vegetation.
The Department of Lands suggests that rangelands leases could be granted for purposes such as:
- broad scale agriculture and/or horticulture projects
- grazing livestock
- Aboriginal economic development and land management
- mining company activities that are inconsistent with pastoral purposes
- conservation purposes, and
- any combination of these, or other activities not yet contemplated.
Rangelands leases will otherwise be similar to pastoral leases and the revised land management obligations (described below) will apply.
Rangelands leases will need to comply with the future act processes in the Native Title Act 1993 (Cth) to be granted validly from a native title perspective. In many cases, this is likely to require the lessee to enter into an Indigenous Land Use Agreement (ILUA) with native title groups. It is worth investigating alternative native title process options, particularly where the rangelands lease is to replace an existing pastoral lease and where there is an existing broad native title agreement.
The timeframe and resources needed to negotiate and register an ILUA with native title groups will be a key hurdle for the valid grant of rangelands leases. The State is not currently proposing to provide financial assistance to proponents or native title parties to negotiate an ILUA but is working on ‘process’ support measures, for example by preparing template ILUAs. Although there is potential for new investment to provide economic benefits to indigenous groups in the Rangelands, which will provide some incentive for reaching agreement, innovations in the approach to ILUA negotiation and support mechanisms will go a long way to realising opportunities in the rangelands.
Rangelands leases and other tenure
Rangelands leases will not be granted over existing pastoral leases, Crown leases or tenure that is inherently inconsistent with a rangelands lease. In mineral fields, a rangelands lease cannot be granted without the consent of the Minister for Mines. Like all Crown grants, rangelands leases will reserve a right of access for petroleum title holders.
The existence of a rangelands lease may also give rise to limitations for petroleum title and mining tenement holders. This will depend on how many rangelands leases are taken up, for what purposes, what infrastructure is developed and what consequential amendments are proposed to other legislation such as the Mining Act and onshore petroleum legislation. Although we expect rangelands leases to be treated similarly to pastoral leases, this is an issue to watch as the reforms take shape.
Changes on the cards for pastoral leases
The Draft Bill proposes several changes to pastoral leases, both new and existing (transitional provisions are not yet clear).
The most significant changes are to the process for renewal of pastoral leases, the dissolution of the Pastoral Lands Board (with their decision making powers going to the Minister for Lands) and new land management requirements (which also apply to rangelands leases).
Renewal of pastoral leases
The Draft Bill may afford greater security of term to pastoralists because it limits the Minister’s discretion to refuse a renewal to circumstances of non-compliance (with the lease, the Land Administration Act and all ‘land management laws’ that apply). It also allows pastoral leases with a term of less than 50 years to be extended to 50 years at the lessee’s election. Renewal decisions will be open to review by the State Administrative Tribunal.
Pastoralists should confirm the native title consequences of these changes, particularly given the Draft Bill gives pastoral leases the characteristics of a perpetual lease and allows the grant of leases with a longer term than their original grant.
Dissolution of the PLB and introduction of the PARAB
The Draft Bill proposes to dissolve the Pastoral Lands Board (PLB) and create a new advisory panel, the Pastoral and Rangelands Advisory Board (PARAB). The current powers of the PLB, which are both advisory and decision making, will be absorbed by the Minister for Lands.
The PARAB will advise the Minister and can research (i) uses to which the Rangelands can be put; (ii) administration of the Rangelands; and (iii) other matters affecting the economic, social or environmental development of the Rangelands. Unlike the PLB, PARAB will not be a decision maker.
The PARAB will have up to 10 members appointed by the Minister with prescribed requirements as to members’ skills. At least 2 members must have “knowledge and experience in the pastoral industry”.
Dissolution of the PLB and the powers and constitution of the PARAB is proving to be one of the more controversial changes as it was the subject of most questions from the floor at the Perth Stakeholder Forum on 6 April.
Stricter land management requirements on both pastoral and rangelands lease holders are proposed. For example:
- to manage the land using best environmental practice appropriate to the area, to maintain indigenous pasture and vegetation and to not remove trees or disturb or affect soil (unless permitted by the lease).
- to monitor and assess the condition of the land and report to the Minister annually. The Minister may provide information (e.g. satellite imagery) that will assist.
- The Minister will be able to direct lessees to submit a land management plan, including if satisfied the lessee is not managing the land sustainably.
- The Minister will be able to issue directions (eg to reduce stock), default notices, forfeit leases and amend/suspend/cancel diversification permits, and must refuse lease renewals and refuse diversification permits if land management and conservation laws are not followed.
- The Minister will need to obtain advice from a member of a new expert panel on land condition or land management issues before making specified adverse decisions on those matters (including default, forfeiture and non-renewal).
Water and approvals?
These reforms will not confer rights to water or change the water rights regime. The Department of Water is separately considering reforms to the water regime which will be another important factor for facilitating more diverse land uses and development in the Rangelands.
The reform will not change the usual development processes and approvals, such as environmental approvals, clearing permits and Aboriginal heritage processes.
Who will the reforms impact?
Here are some reasons why these changes may affect you:
- Agricultural, conservation and those wanting to use the Rangelands: it presents an opportunity for more diverse land use.
- Pastoral: longer terms for pastoral leases are proposed, but that comes with more Ministerial oversight, including as to land management, and an advisory board that no longer has decision making power and diluted representation of pastoralists’ interests.
- Native Title Groups: more opportunities to take part in development in the Rangelands.
- Mining and Petroleum: rangelands leases could allow land uses that complement mining and petroleum activities and existing native title agreements may be broad enough to assist in achieving a valid grant without a full negotiation. However, when held by others and depending on the permitted purposes, rangelands leases could bring new hurdles (e.g. consents and difficulties where there is incompatible use of land).
- Financiers: will need to assess the risks associated with new development proposals in the Rangelands seeking finance, as well as the effect of new Rangelands development on existing and future proposals seeking finance. It creates a new risk factor for consideration in due diligence, finance documents and during implementation. For example, the potential for additional consents and land management standards for pastoral and rangelands leases.