An important step in the QLD Government’s “Modernising Queensland’s Resource Act” program came into effect on 27 September 2016 with the commencement of the balance of the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCP Act) (as amended by the MOL Act)1 and associated Regulations.
The MERCP Act provides for the incremental consolidation of provisions and processes common to the “Resource Acts”.2The MERCP Act brings together the following matters from the Resource Acts:
- dealings, caveats and associated agreements;
- land access;
- resource authority register; and
- overlapping tenures.
In addition to consolidation, the MERCP Act also includes changes to some of the existing Resource Act regimes. The most notable of these are in relation to:
- land access; and
- overlapping tenures.
The land access arrangements for most resource authorities have been consolidated into the one consistent regime and, in some important respects, amended. Some of the main things to be aware of are:
Recording of conduct and compensation agreements (CCA) or opt-out agreements (OOA) on title
The MERCP Act introduces a new obligation to record, on the relevant land holder’s property title, the fact that there is a CCA or OOA agreed in relation to the land. These will show up as administrative advices on the title.
An OOA is a new type of an agreement which allows a landholder to opt-out of the Statutory CCA process. Landholders are under no obligation to enter these agreements and resource authority holders are required to tell landholders of that fact.
CCA’s which are agreed after 27 September 2016 need to be registered on the relevant title within 28 days of execution of the agreement. OOAs must be lodged after a 10 business day cooling-off period has passed. CCA’s which were executed before 27 September 2016 must be registered on title before 27 March 2017. If you require assistance in registering any new or existing agreements please let us know.
The prescribed requirements for a CCA are now contained in the MERCP Act and Regulations and include some new requirements.
Resource authority holders should also be aware that the MOL Act amends the transitional provisions of the MERCP Act regarding land access and a consolidated MERCP Act is yet to be published. See below for a discussion of some of the MOL Act amendments.
The restricted land regime has been consolidated and the definition of restricted land has been amended. Resource authority holders should note that restricted land has been set at a distance of 200m of certain occupied buildings and specified environmentally relevant activities (previously 100m under the MRA and replacing the “600m rule” under the P&G Act). The definition of restricted land for more sensitive installations remains land which is within 50m of, amongst other things, water storage facilities, stockyards and burial places.
A person must not enter restricted land without the owner’s consent which may be a conditional consent.
The MERCP Act includes a new framework for the management of overlapping coal and coal seam gas resource authorities. The changes are generally based on the joint industry proposal “Maximising Utilisation of Queensland’s Coal and Coal Seam Gas Resources – a New Approach to Overlapping Tenure in Queensland” published in 2012 by the QRC, available here.
A foundation principle of the QRC publication was to remove restrictions on the grant of tenure erected by the existing overlapping tenure regime. Instead, the overlapping tenure requirements are, broadly speaking, decoupled from the tenure grant requirements. The provisions are quite complex.
Right of way for coal
At a very high level, the process of the new overlapping regime is to provide a right of way for coal production subject to notice, negotiations and compensation for lost production requirements. These requirements include an obligation to enter into joint development plans with an overlapping petroleum resource authority holder (failure to agree may lead to arbitration).
Any person who is applying or will be applying for a resource authority should carefully review the new overlapping tenure provisions to ensure they do not fall foul of the new regime.
The MERCP Act also introduces new mandatory requirements for coal and coal seam gas authority holders. These provisions cannot be contracted out of and, most pressingly, include certain notice provisions which will apply to current resource authority holders.
If resource authority holders are parties to existing co-development agreements which are inconsistent with the non-mandatory provisions of the MERCP Act, the parties are deemed to have agreed that the relevant non-mandatory provisions of the MERCP Act do not apply. However, subject to the various transitional provisions, authority holders may still be required to comply with the new mandatory provisions.
Right to Object
The MERCP Act in its original form imposed limitations on the right to object to the grant of mining leases under the Environmental Protection Act 1994 (Qld). Objection rights would have been limited to people directly impacted by the mining operation in question (e.g. landowners, grazers etc.). The MOL Act reinstates the broad community objection rights and repeals the relevant sections of the MERCP Act which would have limited these. These provisions reflect the policies of the current State Government (as compared to the previous Newman Government). These provisions have been criticised in some quarters.
Those seeking a Mining Lease will be aware that their application may be challenged by any person who takes an interest in the matter.
It is important for current resource authority holders to be aware of how the MERCP Act will or will not apply.
CCA’s should be reviewed for compliance and steps should be taken to register within the stipulated time-frames. Where there are overlapping tenures, requirements for compliance with mandatory provisions and for notices to other parties should be considered.