Resource companies operating in Queensland are required to negotiate compensation and access with each “owner” and “occupier” of private land.
The definition of who is an “occupier” under the Petroleum and Gas (Production and Safety) Act 2004 (P&G Act) was amended earlier this year in response to criticism that the term was ambiguous. The result is an expanded definition which has broadened the scope of “who” is eligible to claim compensation from resource companies.
The amended definition of “occupier” came into effect on 22 March 2013. It states that an “occupier, of a place means a person:
- who, under an Act or a lease registered under the Land Title Act 1994, has a right to occupy the place, other than under a mining interest, petroleum tenure, licence, GHG authority or geothermal tenure; or
- to whom an owner of the place or another occupier under paragraph (a) has given the right to occupy the place.”
Following release of the Bill and its review, the definition of “occupier” was amended from its prior definition by:
- removing the reference to freehold land in subparagraph (a); and
- inserting the phrase “to whom an owner of the place” at the beginning of subparagraph (b).
The amendment followed the recommendation of the Agriculture, Resources and Environment Committee that it be made clear that an owner of land could provide another party or entity a ‘right to occupy’ land.
The Queensland Government noted that the definition of “occupier” in the original Bill adequately addressed this proposal. However, for certainty, the Government amended the definition to make clear that an owner of land could confer this occupation right.
The Explanatory Notes to the Bill make it clear that the new definition of “occupier” encapsulates the registered owner of a property, family members, family trusts, partnerships or companies associated with managing a rural business on either freehold or leasehold land that have a “right to occupy” under an Act. The Erratum to the Explanatory Notes further clarifies this extended definition.
As such, the amendment broadens the scope of those individuals who are eligible for compensation under the P&G Act.
The definition now recognises business arrangements such as family trusts, partnerships and companies associated with managing rural business on both leasehold and freehold land.
Further, a person holding a right to occupy freehold land from the owner whether or not pursuant to a registered lease, will qualify as an occupier.
As such, a person will constitute an occupier under:
- subparagraph (a) of the definition if that person derives occupation rights under a registered Lease or under an Act; and
- subparagraph (b) of the definition if the owner or an occupier (identified under subparagraph (a)) grants a person occupation rights.
An occupier (pursuant to subparagraph (b) of the definition) will not be able to subsequently grant a right of occupation.
Right to occupy
When determining whether a party falls within the definition of an “occupier” under the P&G Act, it is necessary to consider whether the party occupies the land. At the core of the definition of “occupier” is a person with a legally enforceable right to occupy the land.
The term “occupy” is not defined in the P&G Act or under the Acts Interpretation Act 1954 (Qld), but has both a common law meaning in respect of land and a plain English dictionary meaning.
At common law, a person is an occupier of land if they have, or have the right to, possession and control of the land and “occupation” of the land is the right to physical possession and control of the land. The English dictionary defines the term “occupy” in the context of a place to mean “reside in or be the tenant of”. It can also mean “to live, stay, or work in” or be physically present at.
Unfortunately, it is not clear which of these meanings should be used in interpreting the term “occupier” under the P&G Act and there is no statutory or judicial guidance on this issue. In the absence of such guidance, each set of circumstances will need to be considered having regard to the degree of possession and control over the land held by the claimant.