The Queensland Parliament passed the Mining and Other Legislation Amendment Bill 2012 on 19 March 2013, amending several laws that affect resources companies in relation to, among other issues, applications for exploration tenements and land access. The Act has not yet received Assent, and so none of its provisions have as yet commenced. That is expected to occur in the next two weeks.
Our previous Alert titled Legislation to introduce competitive tendering for resource tenements in Queensland outlines the key features of the Bill.
Partner Martin Klapper and solicitor Eliza Eaton explain how the Bill has been amended from its original version and the benefits of the changes for resources companies.
- Concerns that were raised about the definition of ‘occupier’ in the original Bill have been addressed.
- As part of its broader review into the land access regime, the Queensland Government will consider implementing a two-tiered system to address issues with correctly identifying occupiers of land.
- The Queensland Government has addressed concerns raised by the industry and provided further details on how the competitive tender process for exploration permits for minerals will work in practice.
Definition of ‘occupier’ clarified
The Bill amends the definition of ‘occupier’ in the Mineral Resources Act 1989, Petroleum and Gas (Production and Safety) Act 2004, Petroleum Act 1923, Geothermal Energy Act 2010 and Greenhouse Gas Storage Act 2009 to address ambiguity arising from the existing definition, and to ensure consistency across the various Acts.
Resources companies and landowners both previously raised concerns that the definition of ‘occupier’ proposed in the original Bill was uncertain and needed clarification. Under the amended definition, it is clear that:
- an occupier will be a person who has a right to occupy “under an Act or a lease registered under the Land Title Act 1994”; and
- where an owner or an occupier has given another person a right to occupy, that person should also be considered an occupier.
Identifying occupiers of land
This new definition of ‘occupier’ will have implications for resources companies seeking to identify who they will be required to notify, and with whom they should negotiate, when accessing land to conduct exploration and mining activities.
There are inherent difficulties associated with identifying ‘occupiers’ that are not immediately identifiable from a title search. In many circumstances, it may be the owner of the land who is best placed to identify the relevant parties with whom a mining tenement holder should engage.
As part of its broader policy and legislative reforms in relation to the land access framework governing private land access rights as they relate to resources activities, the Queensland Government has agreed to explore implementing a two-staged process to practically identify occupiers. However, this Act does not do that.
HopgoodGanim will continue to monitor the land access reforms and provide updates on the implications for resources companies.
The competitive tender process
The Bill establishes a competitive tender process for exploration permits for minerals, which will mirror that previously announced for exploration permits for coal.
The industry has raised a number of concerns about competitive tendering, including:
- the justification for the cash bidding component of the process;
- ensuring transparency and impartiality by government in determining a successful tender; and
- the potential adverse effect on smaller mining companies who will not be able to compete with the cash bids submitted by larger companies.
The Queensland Government has responded to these concerns by providing further policy details as to how the competitive tendering process will work in practice:
- The government has appointed probity advisers O’Connor Marsden & Associates to oversee the implementation of the cash-bidding project, whose brief is to ensure that each competitive tendering process is carried out according to the requirements proposed under the Bill. At the end of each cash tender process, the independent adviser will provide a probity report, which will be made publicly available.
- Only a few select, highly-prospective resource areas will be released for tender with a cash component. The Geological Survey of Queensland will provide objective geological advice to the government on the resource potential of areas that could be released. Land for exploration in under-explored or greenfield areas will continue to be made available to industry without a competitive cash tender process, which will provide continuing opportunities for smaller explorers.