Further changes to the Land Access regime in Queensland are foreshadowed in the Land Access Implementation Committee Report released on 4 March 2014. While the overall impact of the recommended changes appears to be minor, any change will still have some impact on the resources and farming industries. Notwithstanding the recommendations, some areas of uncertainty will remain.
The Report has not called for any substantial changes to the land access regime. Rather, the Report is focussed on assessing the land access framework and its effectiveness and has made recommendations for improvements that will bed down and provide additional certainty to the existing land access process. It is likely that as the Report does not recommend a quantum shift in the law relating to negotiation processes, there will equally likely be no quantum shift in the behaviour of parties when approaching negotiations.
The recommendations of the Committee, while providing some certainty in areas, raise further questions which will require consideration if the Government implements some or all of those recommendations. It also leaves open some areas of uncertainty, which may continue to plague negotiations going forward.
Key recommendations of the Committee
The Report sets out recommendations on the elements of the Government’s six point action plan. The key recommendations are that:
- it would not be prudent to legislate further on the heads of compensation under land access laws;
- the Land Court be given explicit power to make determinations on conduct issues and allow the Court to examine the behaviour of parties during the negotiation of a conduct and compensation agreement (CCA);
- a single accredited alternative dispute resolution process through a panel arrangement be introduced to support the current land access framework;
- the existence of CCAs be noted on property titles;
- landholders be given the right to opt out of the requirement to enter into a CCA;
- standard CCA templates for the relevant resources industries be developed in partnership with the resource and agricultural sectors; and
- a single, integrated repository of information regarding land access be developed to provide a comprehensive resource for landholders and resource authority holders.
These recommendations are discussed below.
No change to the heads of compensation
The Committee formed the view that as negotiation practice is evolving with more experience and education, it was better to let that evolution continue to occur naturally and it was not necessary to further legislate or change the current heads of compensation.
The Committee also recommended that further educational programs, including releasing the consultant’s review to assist the Committee (being the report prepared by SKM), would assist parties in future negotiations.
One aspect that this recommendation leaves slightly unclear is the treatment of landowner time in negotiations. The SKM report implies that landowners are entitled to receive compensation for negotiation time. However, Land Court decisions indicate that time spent by owners or occupiers in negotiating CCAs would not generally be compensatable. For further information, please refer to our earlier Thinking piece on Landowner Time.
Expanding the Land Court’s jurisdiction on matters of conduct
The Committee has recommended that the jurisdiction of the Land Court be expanded to allow it to make determinations on matters relating to conduct issues. In the Committee’s opinion, the Land Court currently only has jurisdiction to decide matters relating to compensation. The Committee also recommended that the jurisdiction of the Land Court be expanded so that it can examine the behaviour of the parties during the negotiation of a CCA.
These recommendations are unlikely to result in any significant change in current practice. In addition to so few matters actually being determined by the Land Court, the Land Court already has jurisdiction to “impose any condition it considers appropriate for the exercise of a parties’ rights” or “vary any existing condition under an agreement between the parties” where, for example, the Land Court is asked to assess a resource authority holder’s compensation liability or to determine a matter related to that compensation liability.
Scrutinising the behaviour of the parties during the negotiation of a CCA is also already a central function of the Land Court given that a party is not entitled to file Land Court proceedings and thereby obtain a statutory right of access unless it has first complied with the statutory negotiation process.
Introduction of an independent panel arrangement for ADR
The current legislative framework provides for a staged negotiation process with a gradual escalation to facilitate negotiations or Alternative Dispute Resolution (ADR) before referral to the Land Court if an agreement cannot be reached. The Committee wishes to retain this basic arrangement, but establish an independent panel of expert ADR specialists to undertake the ADR step of the process.
Further detail is needed to understand how this proposed new arrangement will work. For example, will a panel of ADR specialists assist in the resolution of CCAs or will the parties have the option of appointing only one ADR specialist from the panel?
For further information regarding the current ADR / conference procedure, please refer to our earlier Thinking piece on Resolving disputes about resolving conduct and compensation agreements.
Noting CCA's on title
The Committee recommends the existence of CCAs be noted on property titles. It is proposed that the notification disclose only the existence of the CCA and names and contact details of the parties, on the basis that full disclosure of the details of a CCA is not appropriate for confidentiality reasons.
The implementation of such proposal would create greater transparency and ensure potential purchasers of a property are fully informed as to the existence of a CCA in the event that a vendor did not disclose the existence of an agreement.
It is proposed that the resource authority holders be responsible for, and pay the cost of, having the notification identified on the title and removed from the title when the agreement ends. This would require systems being introduced in the Titles Office to enable such notifications to be recorded and will require resource authority holders to manage such notifications in a timely manner.
Landowner ability to opt-out of the formal CCA requirement
The Committee recognised that some landowners will not want to enter into a CCA for one reason or another. In light of this, the Committee recommended that the parties be able to ‘opt-out’ of needing a CCA at the election of the landowner.
However, there was recognition that a process needs to be adopted to ensure that the parties are aware of their rights before opting out and to record the fact that a landowner has opted out, for example, an agreement to opt out which is recorded on the title in the same way as a CCA is recorded.
Implementing improved land access information, guidance and template agreements
The Committee’s view is that practical information, guidance and understanding about Queensland’s land access laws are central to improving the land access framework, with the key objectives being:
- the establishment of a single, integrated repository of information and guidance about land access for all interested parties; and
- the development of template CCAs that provide the standard terms and conditions for land access, with an option to include provisions relevant to individual circumstances. Specific terms and conditions are also to be developed for each of the relevant resources sectors (for example, coal, mineral, coal seam gas).
The ability to access such information and resources would be beneficial for landowners and resource companies in understanding their respective interests.
The success of the proposals will largely depend on the type and consistency of information made available, disclosure of that information in a meaningful way and the willingness of all parties to adopt and use the terms of any template CCA rather than seeking significant changes.
While these recommendations seem to be generally beneficial to the land access regime, there is a missed opportunity to address some of the remaining uncertainty in aspects of the regime. For example, there is still some uncertainty around who constitutes an occupier and what constitutes reasonable accounting, legal and valuation costs. In the absence of any recommendation or actual change to clarify these issues, those involved in negotiations in this space will need to await further evolution of those concepts – most likely when a decision on these points is made by the Land Court.
Where to from here?
At this stage, the Government has not given any indication as to whether it will implement any or all of the recommendations in the Report. The Government will no doubt make its position on the recommendations known in due course.
If the recommendations are adopted in full, there will necessarily be a period of time needed in order to implement the recommendations, for example, to establish the independent ADR panel and to ensure processes exist in the Titles Office to note the existence of CCAs on title.
Should the Government seek to implement the recommendations, amending legislation will need to be introduced to Parliament. As always, the devil will be in the detail of any amending legislation. It also remains to be seen whether the Government will invite submissions on any amending legislation given the process undertaken by the Committee in preparing the Report in the first instance.
See the full Report and the government’s Six Point Action Plan here.