QUEENSLAND GOVERNMENT TAKES A REGIONAL INTEREST
Late last year, Deputy Premier and Minister for State Development, Infrastructure and Planning, Jeff Seeney introduced laws he has called his “legacy” - a purported move towards a resolution of the conflicts which arise from competing uses of land by resources, and agriculture. The Regional Planning Interests Act 2014 (Qld) was passed 20 March 2014 and will commence on 2 June 2014, after a fairly truncated consultation program. Now a reality, the Act raises the question for both the agricultural sector and the resource sector: what does it mean for me? More specifically, will landholders be able to refuse resource companies access to their land? How will this new element of access regulation align with the existing land access regime? And what factors might keep this legislation from achieving its aims of striking an appropriate balance between protecting priority land uses and delivering a diverse and prosperous economic future for our regions? WILL A LANDHOLDER BE ABLE TO REFUSE RESOURCES COMPANIES ACCESS TO HIS OR HER LAND? In a word, no. However, if a resource authority holder wishes to conduct certain activities in an ‘area of regional interest’, and is unsuccessful in negotiating an agreement with a landholder, it must apply to the Department of State Development, Infrastructure and Planning for a Regional Interest Development Approval (RIDA). WHAT IS A RIDA? A RIDA is an approval issued by the Chief Executive. A RIDA application is assessed against certain statutory criteria, including: • the extent of the expected impact; • any criteria for the decision prescribed under a regulation; • all properly made submissions received by the chief executive about the application; and • any advice about the application given by the Queensland Gasfields Commission. ARE THERE ANY EXEMPTIONS FROM THE REQUIREMENT TO OBTAIN A RIDA FOR PRIORITY AGRICULTURAL AREAS? Yes. The exemptions are outlined in the Act. A resource activity is exempt for a priority agricultural area (or strategic cropping land area) if: • the landholder and Authority Holder are parties to a conduct and compensation agreement; • the activity is going to be carried out for less than 1 year; • if, immediately before land becomes land in an area of regional interest, including on commencement of this section, a resource activity may be carried out lawfully on the land (including having all its necessary approvals); and • if, immediately before land becomes land in an area of regional interest, including on commencement of this section, a regulated activity may be lawfully carried out on the land under the Sustainable Planning Act 2009. SO WHAT DOES ALL THIS MEAN? The new Act creates a potential additional burden for resource authority holders seeking to conduct certain activities on land that falls within one of the four areas of regional interest. It does not, however, prevent resource activities or other regulated activities being conducted in areas of regional interest, or give land holders a right to “say no” to such activities. Instead, it gives resource companies an incentive to reach agreement with landholders for such activities to avoid the need for a RIDA. The relevant regulations, against which applications for RIDA will be assessed, have not yet been finalised. Therefore, the exact scope of the impact to the industry and the practical consequences of this legislation are difficult to determine. While this legislation is new to all stakeholders, and we recommend all interested companies keep tabs on the practical application of the regime, particularly in respect of the attitude of those that will be influencing the discretionary outcomes under the regime - such as the Gasfields Commission, and the Chief Executive. In an ongoing attempt to reduce paperwork and streamline timeframes on projects, resource companies should continue to negotiate directly with landholders to avoid the additional inconvenience, time and cost associated with seeking a RIDA under the Act. Matthew Austin and Sarah Bell IN THIS ISSUE 2 THE LANDSCAPE – NEWS AND VIEWS ON ENVIRONMENT, PLANNING & NATIVE TITLE QUEENSLAND GOVERNMENT TAKES A REGIONAL INTEREST WATCH THIS SPACE Restricted land provisions could apply to petroleum tenure soon Under the current regime the Petroleum and Gas (Production and Safety) Act 2004 does not recognise “restricted land.” Modernising Queensland’s Resources Acts Program has recently released a statement proposing the introduction of “restricted land” provisions that will include land within 200m of the specified structures under the proposed legislation. WATCH THIS SPACE Relevant structures for the “restricted land” provisions are set to change A notable amendment under the new regime posed is to the definition of “restricted land” which narrows the scope of included structures by removing “water related structures”. This leaves the included structures under the definition to incorporate residences, places of worship, buildings for a business purpose (including schools), intensive animal husbandry (such as feedlots), and cemeteries or burial places.Somewhat controversially, the Executive will be able to declare that the Heritage Act 2004 and/or the Tree Protection Act 2005 have a restricted operation in a special precinct area (restricted declaration) so long as the Conservator of flora and fauna and the Heritage Council (as impacted) has had the opportunity to comment in the consultation phase on the draft variation. IN THIS ISSUE 3 THE LANDSCAPE – NEWS AND VIEWS ON ENVIRONMENT, PLANNING & NATIVE TITLE The ACT Government has introduced a new bill to amend the Planning and Development Act 2007 (Act). The relevant bill, the Planning and Development (Project Facilitation) Amendment Bill (Bill) 2014, proposes to make several major changes to the current development approval process. PRESCRIBED CHANGES These changes are being touted by the ACT government as a continuation of its recently announced property sector stimulus package, but it also has the added benefit to the government of streamlining the approval process for ACT government flagship projects, including the secure mental health facility and the Capital Metro Project. These changes aim to reduce delays caused when variations to the Territory Plan are required or 3rd party appeals are made or, for impact track development, applications requiring an Environmental Impact Statement (EIS). In summary, the changes: • allow for the creation of special precinct areas for priority developments; • provide for the special treatment of key projects including the removal of 3rd party review rights to the ACT Civil and Administrative Tribunal (ACAT) and (controversially) to the Supreme Court for review under the Administrative Decisions Judicial Review Act (ADJR Act); • introduces a new class of amendment the ACT Planning and Land Authority (ACTPLA) may prepare to the Territory Plan; • allow developers to rely on draft Territory Plan variations when submitting DAs; and • allow for a DA and EIS to be lodged and assessed concurrently. SPECIAL PRECINCT AREAS FOR PRIORITY DEVELOPMENT Under the Bill, the Territory Executive will have the power to vary the Territory Plan to create new ‘special precinct areas’ for priority development if it gives effect to the objects of the Territory Plan, is consistent with the planning strategy, achieves a substantial public benefit and one of the following objectives: • implementation or progress toward implementing the planning strategy or elements of the planning strategy; • progress towards sustainable development of the Territory; • economic, social cultural or environmental progress for the Territory. The Minister for Planning may direct ACTPLA to prepare draft variations to create a special precinct area. These special precinct variations are subject to a separate consultation process (inviting comments from the National Capital Authority (NCA), select referral agencies if impacted – see below for further detail, and the public). Following expiry of the consultation process and receipt of comments from relevant authorities, including from the Minister for Planning, the Executive will be able to effect the variation unless the Legislative Assembly explicitly rejects the variation within a set period of time (through the disallowable instrument process). The Executive may also make revisions to the draft variation that are inconsistent with the advice of ACTPLA and the Minister if it considers appropriate to do so. Furthermore, the variations to the Territory Plan will take effect on the day that the special precinct area variation commences. Importantly, the variation to create a special precinct area, has the effect of preventing third parties from seeking ACAT merits review of development applications in special precinct areas and enables the Executive to make decisions with respect to these special precinct areas that it would not otherwise be able to make. This can preclude the Conservator of flora and fauna from registering significant trees in the special precinct area or the Heritage Council from registering properties on the heritage protection list for the duration of the restriction. PROJECT FACILITATION – KEY ACT PROJECTS SET TO ACCESS THE FAST TRACK FOR DEVELOPMENT APPROVALS WITH LESS OBSTACLES This is sure to cut months from the development approval process and provide developers with an indication as to the likely outcome of their DA sooner. This move towards introducing more flexibility and efficiencies in the development application process in the ACT will be welcomed by most industry. IN THIS ISSUE 4 THE LANDSCAPE – NEWS AND VIEWS ON ENVIRONMENT, PLANNING & NATIVE TITLE Also, ACTPLA will be able to effect variations to special precinct areas (such as rezoning, or varying precinct codes or development tables) so long as a special, limited consultation process has been complied with. SPECIAL TREATMENT OF PROJECTS OF MAJOR SIGNIFICANCE In combination with a declaration of a special precinct area or separately, the Executive will be able to declare selected development proposals as ‘projects of major significance’ so long as the Executive considers the development proposal will achieve a substantial public benefit and is of major economic, social, cultural or environmental significance to the Territory. A separate proposal to declare a project as a ‘project of major significance’ is subject to public consultation and NCA comment, but a declaration will come into effect unless it is explicitly rejected by the Legislative Assembly within several days of being presented. RELYING ON DRAFT TERRITORY PLAN VARIATIONS Another key amendment introduced by the Bill will allow development applications to be made in anticipation of draft Territory Plan variations. This applies universally not just to special precinct areas or projects of major significance. ACTPLA will not be able to decide on a DA while the relevant variation is still in draft form, however, it will be able to start considering the DA before the variation comes into effect. CONCURRENT LODGEMENT OF DA AND EIS Another sensible decision is the proposed change to the impact track development application process. Currently, DAs in the impact track require the preparation of an EIS before they can proceed. The amendment changes the Act to provide that DAs in the impact track must be lodged with either a completed EIS or a draft EIS. This will allow for a development application in the impact track to be lodged at the same time as an EIS (even a draft one). While this may pose a risk that an unsatisfactory EIS may result in the rejection of the whole application, the new process could save months on the EIS process of a major project proposal. OVERALL IMPACT OF THE BILL Overall, the Bill will simplify the development approval process for projects which are found to be of key significance to the Territory. Some may argue why the ACT Government should only have the option of greater flexibility in project planning but it is open for developers to lobby their Legislative Assembly representatives to include proposed areas within a special precinct or to have projects designated as one of major significance to access these changes. How regularly the Executive will use these mechanisms to decide which areas should be deemed ‘special precinct areas’, and which projects should be identified as being of ‘major significance’, assuming the Bill is passed, is yet to be seen but will be watched with interest by all players including community groups. Chris Wheeler and Pria O’Sullivan IN THIS ISSUE 5 THE LANDSCAPE – NEWS AND VIEWS ON ENVIRONMENT, PLANNING & NATIVE TITLE The NSW Government is progressing its review of the NSW Aboriginal Cultural Heritage (ACH) regime, currently the subject of the National Parks and Wildlife Act 1974 (NPW Act). The central proposals from the review are set out in the Reforming the Aboriginal Cultural Heritage System in NSW paper together with the announcement by the NSW Government that it intends to enact a standalone Aboriginal Cultural Heritage Act (ACH Act). A draft Exposure Bill is proposed for release later in 2014. Reform is designed to ‘respond to the concerns and needs of Aboriginal and non-Aboriginal stakeholders’ while delivering more efficient protection and approval processes. A NEW DEFINITION OF ACH A key change is the introduction of a broader (tangible and intangible) and more contemporary definition of the ACH to be protected, namely: “the practices, representations, expressions, knowledge and skills – as well as associated objects and artefacts – that Aboriginal people recognise as part of their cultural heritage, insofar as these values are reflected in the landscape” Where intangible aspects of ACH can be linked to an area of land (for example, a song line described by landscape features), these can be protected. A LOCAL APPROACH At the heart of the proposed model is the creation of a clear process for identifying ‘who speaks for Country’ through Local ACH Committees. These are to be established as ‘one stop shops’ for all consultation and decision making associated with ACH matters. Local ACH Committees are proposed to be comprised of individuals with particular knowledge of the ACH values, practices and priorities for the relevant area. Members will be drawn from Aboriginal owners under the Aboriginal Land Rights Act 1983, determined native title holders or registered claimants, ILUA party representatives and other representatives with cultural authority. A FIT FOR PURPOSE APPROACH It is proposed to introduce a ‘fit for purpose’ rather than a ‘one size fits all’ approach for assessment, action and management. Some elements of the existing regulatory framework will be retained. These include exemptions, defences (including due diligence), offences and penalties. The current Aboriginal Heritage Impact Permits (AHIPs) system will not be a feature of the new system. The proposed reforms seek to allow flexible outcomes for the unique needs of each project whilst enabling appropriate regulatory responses to the ACH values potentially affected. This will be done through the categorisation of activities (exempt, low impact, trivial or negligible, and all other activities that have potential to harm ACH values) together with requirements for consultation which match the significance of the ACH value that may be impacted. For example, consultation with the Local ACH Committee will be required for all activities that are proposed on land which has ‘mapped’ high ACH values. The Committee may choose whether it would like to be consulted on individual projects, based on its own local ACH values and priorities. To support strategic planning for ACH conservation, the new legislation will introduce the following statutory ACH instruments and tools: • Local ACH Maps and Plans of Management. Local ACH Committees will be required to identify the ACH within its area of authority, prepare an ACH Map including a description of how the intangible values link with the associated land, and develop a Plan of Management to describe how the ACH values, priorities and conservation activities can be achieved. Plans of Management may document the significance of objects and places (and associated cultural activities) and how this can be conserved, develop and record cultural heritage conservation and management strategies and detail procedures for management of unexpected finds. Planning authorities would refer to the ACH Maps and Plans of Management in conjunction with other environmental considerations to identify suitable conservation and development areas. ABORIGINAL CULTURAL HERITAGE REFORM IN NSW – LOCAL, FIT FOR PURPOSE APPROACH WATCH THIS SPACE The next step has been taken in the Western Australian Government’s historic offer to the Noongar people to settle claims over Perth and the South-West of Western Australia with the release of the draft Noongar (Koorah, Nitja, Boordahwan) (Past, Present, Future) Recognition Bill 2014 (WA). The Bill is the centrepiece of a $1.3 billion settlement offer regarding native title claims over Perth and South West made in July 2013. As part of the offer, about 40,000 Noongar people will receive an indexed sum of $50 million each year for 12 years into a perpetual trust for economic projects and cultural and social programs. The Bill recognises the Noongar people as the traditional owners of the South West and acknowledges their unique contribution to the “heritage, cultural identity and economy of the State”. However, the Bill is largely symbolic and will have no impact on other laws. The Bill expressly states that it does not create any rights, give rise to any claims, affect any right of review of an administrative decision or affect the interpretation of any law. The Bill will only proceed if the overall offer is accepted by Noongar people.Importantly, project proponents should be conscious that ACH reforms in other Australian jurisdictions have been said to have ‘given native title teeth’, in that the combination of the effects of the ACH regime and native title future act requirements has impacted the relative bargaining strengths of the parties in the negotiations that make up these compliance processes. In this regard, much will depend on the final form of the legislation and the supporting regulations and guidelines. IN THIS ISSUE 6 THE LANDSCAPE – NEWS AND VIEWS ON ENVIRONMENT, PLANNING & NATIVE TITLE • Project Agreements. Project Agreements will be required for certain activities in areas that are mapped as having incomplete or high ACH values. Project Agreements are negotiated between the proponents and the Local ACH Committee. There will be a statutory process for negotiating a Project Agreement, supported by timeframes for such negotiations and a requirement to carry out an ACH assessment before a Project Agreement can be finalised. If agreement cannot be reached and disputes are not resolved within the applicable timeframes, proponents may proceed with caution by following the consultation and assessment requirements, based on the perceived levels of ACHA values under with the applicable Plan of Management. • The ACH Register. A publically searchable ACH Register will be managed and maintained by the Heritage Division and hold a range of ACH information for NSW including ACH Maps, Plans of Management, Project Agreements and ACH assessment reports. CONCLUSION The proposed reform of the ACH regime in NSW represents a significant shift from the system currently in place. Its implementation will not be without its challenges. For example, much of the effectiveness of the system will depend on the performance of the Local ACH Committees which, due to their local membership, are likely to vary in their performance and quality of output without significant investment from the State in capacity development. This inevitable variance, together with differing ‘local’ interpretations of ACH that are likely to result from the expanded definition of ACH, may lead to differential treatment of ACH across parts of NSW. This may have implications for the attractiveness of some areas of NSW over others for project proponents, at least from an ACH compliance perspective. Other aspects, such as the utility of the fallback options in the event a Project Agreement cannot be agreed absent a binding circuit breaker measure, remain unclear. Scott Singleton and Debra Townsend WATCH THIS HERITAGE PLACE The Department of Aboriginal Affairs (DAA) in Western Australia has been working on a series of reforms to Aboriginal heritage law and policy. The DAA is in the process of: •Reviewing all of the information stored in its databases, including a back-log of notifications of potential sites; •Creating a new online system for notification of sites – this is intended to be userfriendly and enable members of the public including Aboriginal people to notify the DAA about possible sites, without the need to engage an expert; •Consolidating and transferring the information the DAA holds to a new comprehensive online Register to ensure that only sites that meet the significance requirements under the Aboriginal Heritage Act are on the Register. • Including a note on the Register to make it clear where heritage information is available even if the site does not meet the requirements for protection under the Act. These changes align the Register and the DAA processes with the Act and should assist to ensure heritage sites are properly protected and the path to lawful development is clearer. It is unlikely to remove the need for a heritage survey in most circumstances. We are also expecting some proposed reform to the Aboriginal Heritage Act in Western Australia to be released soon.Possible implications • More rapid and successful native title determinations. • More certainty for other parties with interests or potential interests in the affected land and waters. • Faster resolution may affect existing agreements, agreement negotiations and management of benefits. • Could cut across advocate’s current interests or commercial intentions. • Reduction in number of respondents may affect parties with interests in areas such as mining, agricultural, infrastructure, utility and other industry proponents. IN THIS ISSUE 7 THE LANDSCAPE – NEWS AND VIEWS ON ENVIRONMENT, PLANNING & NATIVE TITLE ALRC REVIEW OF THE NATIVE TITLE ACT In March 2014 the Australian Law Reform Commission (ALRC) released an issues paper in relation to its review of the Native Title Act 1993 (Cth) (NTA). The ALRC issues paper considers whether the requirements within the NTA for establishing native title rights and interests, and for authorising native title claims, are too onerous on native title claimants. The ALRC paper does not place much emphasis on the potential impact of the proposals on respondents to native title proceedings, or third parties wishing to undertake activities in an area subject to a native title claim or determination. On this basis, parties with an interest in lands or waters under claim or that are likely to be claimed, should consider making a submission so as to ensure that the ALRC considers the potential impact of the various issues on their activities and interests. ISSUES RAISED BY ALRC Presumption of continuity Currently, native title claimants must demonstrate on the balance of probabilities, and in reference to evidentiary materials, that the claim group have continued to observe traditional laws and customs since European settlement, such that the native title claimants have maintained a “connection” through their traditional laws and customs to the lands and waters subject to the claim. The ALRC has been asked to consider the impact of introducing a rebuttable “presumption of continuity” into the NTA. This would mean continued connection would be presumed unless a respondent proves otherwise. The ALRC seeks comment on whether a rebuttable presumption of continuity should be introduced into the NTA, and if so, how the presumption should be framed, and what, if any, basic facts should be proven before the presumption would operate. Meaning of ‘traditional’ The ALRC has been asked to consider whether there should be some clarification of the meaning of the phrase ‘traditional laws and customs’, to allow for the cultural evolution and adaptation in the recognition of native title rights and interests. This is likely to have a significant impact on the interpretation of ‘native title’ at common law, and may affect operation of other parts of the NTA. Native title rights and interests of a commercial nature The definition of ‘native title’ in the NTA does not include any reference to commercial rights and interests. The ALRC has been asked to consider whether there should be a clarification that ‘native title rights and interests’ can include rights and interests of a commercial nature. This issue arises in response to the recent High Court decision of Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 300 ALR 1, which found that native title rights included the right to access and take resources “for any purpose”, including commercial purposes (where such rights have a traditional basis). IN THIS ISSUE 8 THE LANDSCAPE – NEWS AND VIEWS ON ENVIRONMENT, PLANNING & NATIVE TITLE The ALRC seeks comment on whether the NTA should be amended to state that rights and interests can include those of a commercial nature, and if so, how “commercial” should be defined. Physical occupation, continued or recent use Many Aboriginal and Torres Strait Island people do not currently physically occupy the land or waters that are the subject of a native title claim, and may not have continuously or recently used them. The High Court has stated that the connection may be a spiritual, cultural or social connection, and that while physical presence provides evidence of a connection, it is not essential. However, the courts acknowledge that physical occupation or continued or recent use of land or waters may still be relevant to proving the content of the native title rights in relation to a particular claim. The ALRC seeks comment on whether the NTA should include confirmation that the connection with land or waters does not require a physical occupation, or continued or recent use, and if so, how this confirmation should be framed. Substantial interruption The NTA requires that acknowledgement of traditional laws and customs must have continued ‘substantially uninterrupted’ by each generation from sovereignty. This requirement may pose particular difficulty for native title claimants in parts of Australia heavily impacted upon by European settlement (e.g. South East Australia), such that the Court may find that traditional laws and customs have been abandoned. The ALRC seeks comment on whether there should be a definition of ‘substantial interruption’ in the NTA, and if so, how it should be framed. It also seeks comment on whether, or in what circumstances, the courts should be empowered to disregard a substantial interruption in the interests of justice. Authorisation The NTA requires that an application for a determination of native title cannot be registered unless a person or group (the applicant) is authorised by all the people who hold the native title claimed (the native title claim group). The ALRC seeks comment on the ways in which the authorisation provisions create barriers to access to justice for claimants, potential claimants, and respondents. It has identified issues such as the difficulties that may be experienced in identifying a claim group, the disputes that often arise within claim groups relating to membership or boundaries of claimed land, and the costs involved in the authorisation process. Respondent joinder The NTA provides mechanisms which aim to ensure that persons who may be affected by, or have a relevant interest in, a determination have an opportunity to join as a respondent to the claim. The ALRC has been asked to consider any barriers to access to justice for claimants, potential claimants and respondents imposed by the applicable joinder provisions. The ALRC suggests that there may be concerns about the number of respondent parties involved in native title determination proceedings. In particular, claims over large areas are likely to have many respondents. Large party numbers can complicate proceedings and lead to slow outcomes. POSSIBLE IMPLICATIONS The ALRC issues paper raises important issues for everyone affected by the native title system. Many of the proposals are aimed at reducing the burdens involved for native title claimants to successfully prosecute their native title claims, which logically will result in more rapid and successful native title determinations. An increase in the successful resolution of native title claims will give more certainty for other parties with interests or potential interests in the affected land and waters, including as to who to deal with. However, proponents’ future act options may also be limited by a greater rate of successful native title determinations, including by NTA limitations IN THIS ISSUEIN THIS ISSUE 9 THE LANDSCAPE – NEWS AND VIEWS ON ENVIRONMENT, PLANNING & NATIVE TITLE (such as the low impact provisions not being available) and government policies regarding grants and approvals in native title determination areas. Proponents should also consider how the proposals for changing the claims process and having claims resolved sooner might affect existing agreements, agreement negotiations and management of benefits. With respect to the ALRC’s call for comment on issues surrounding authorisation processes, one priority for legislative reform from a proponent perspective could include the introduction of a legislative presumption that the named applicants are authorised to bind the entire native title claimant group in an agreement. The suggestion that native title rights and interests could take on a commercial aspect gives rise to a potential for such rights and interests to cut across proponents’ current interests or commercial intentions. Proponents may want to make a submission about this, for example, as to where the limits of any commercial native title rights might lie, and how inconsistencies between proponent rights and native title rights should be managed. Parties with interests in areas that may be subject to native title claims other than the Crown, such as mining, agricultural, infrastructure, utility and other industry proponents, may be affected by the suggestion to limit rights to join native title claims as respondents. The fact that a claim might attract a vast number of respondents doesn’t diminish the potential effects of a native title determination on the rights and interests of an individual respondent. Those rights still need to be assessed and protected so removing rights to be a respondent will not necessarily make the claims resolution process quicker. As an alternative to limiting parties rights to join a claim as a respondent, options to ease administrative burdens should be explored, e.g. by way of introducing a rule that non-critical documentation only need be served on the Applicants, State and Commonwealth, and that it otherwise be made available to the remaining Respondents by way of a portal. TIMEFRAME FOR PUBLIC SUBMISSIONS Public submissions in relation to the issues paper close on 14 May 2014. Any submissions received in response to the issues paper will inform the next stage of the review process, which will be the publication of a discussion paper in September 2014. The ALRC will then call for further submissions on the proposals set out in the discussion paper before releasing its final report in March 2015.