Tracey Jepson – Page 2

We regularly distribute updates to our clients and contacts on specialised areas of law.

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Registering Carbon Abatement Interests in Queensland

Landowners in Queensland are able to grant rights over the carbon in part or all of their land as a carbon abatement product under the Commonwealth Government’s Carbon Farming Initiative. A carbon abatement interest provides for the exclusive legal right to the economic benefits of carbon sequestration on the land. Carbon abatement interests are capable of being registered as interests in freehold, State leasehold, unallocated State land, State forest or reserve and the legislative provisions differ for each tenure. Once registered, rights will be recognised interests in Queensland that provide for the right to carry out an eligible sequestration project for carbon abatement products on land in Queensland under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth). The Carbon…

First Land Court Determination of Compensation for CSG Activities

On 13 April 2017, the Land Court made a determination of compensation payable for coal seam gas related activities in the case of QGC Pty Limited & Ors v Eugenehans Peter Vogt and Anor [2017] QLC 20. It is the first case in Queensland in which a determination of compensation has been made for coal seam gas activities. In our view the decision has little use as a precedent given that the landholder elected to not appear at the hearing or tender evidence to contradict the evidence relied on by QGC. Background The land affected comprised of 337.5 hectares of freehold land located west of Dalby and south of Chinchilla. The highest and best use of the land was a…

Common Provisions Act

On 27 September 2016 the Mineral and Energy Resources (Common Provisions) Act 2014 (the Common Provisions Act) commenced, which seeks to consolidate similar provisions of different resources legislation into one. One of the focus areas of the Common Provisions Act is in relation to land access. P&E Law made a number of policy submissions during public consultation periods in relation to these changes, particularly in relation to the definition of ‘restricted land’, the 600m rule and the introduction of Opt-Out Agreements. In our view, there are 3 key changes that landholders should be aware of under the new legislation. Firstly, the Common Provisions Act requires CCAs and Opt-Out Agreements to be recorded on the title of land. This will assist…

New Make Good Requirements to Assist Landowners

The Environmental Protection (Underground Water Management) and Other Legislation Amendment Act 2016 (the Act) commenced on 22 November 2016. The Act changes environmental assessment and management of underground water extraction by resource projects by amending the Environmental Protection Act 1994 and the Water Act 2000. Numerous changes have been made to the “make good” framework under the Water Act 2000. A summary of these changes is set out below. Costs of Engaging a Hydrogeologist One key issue that landowners should be aware of is an amendment to the Water Act 2000 that requires resource companies to reimburse landowners for any hydrogeology costs incurred by the landowner in negotiating or preparing a Make Good Agreement. This is a significant change from…

The Australian Consumer Law and Mining Companies

Landowners should be aware that as consumers of goods and services they have rights that are protected under the Australian Consumer Law (ACL). The ACL is the national law for fair trading and consumer protection. The ACL includes: a national unfair contract terms law covering standard form consumer and small business contracts; a national law guaranteeing consumer rights when buying goods and services; a national product safety law and enforcement system; a national law for unsolicited consumer agreements covering door-to-door sales and telephone sales; simple national rules for lay-by agreements; and penalties, enforcement powers and consumer redress options. Under the ACL companies, such as resource companies, in the supply of goods or services, must not: engage in unconscionable conduct; or…

Rehabilitation – Fixing your Land

Rehabilitation of land following CSG and mining activities remains a constant problem for landowners. Typical problems include the mixing of topsoils, inadequate erosion control measures and the introduction of weeds. Landowners have strong rights to ensure that rehabilitation is performed adequately. These rights exist despite any agreements that you have entered into with a resource company or the time that has elapsed since those agreements were entered. These rights exist even if you have been compensated for grazing or productivity losses associated with disturbance to the pipeline land. This information provides advice of a general nature only and should not be relied upon as legal advice. Published 4 July 2016.

Rehabilitation for Pipeline Infrastructure

Many landowners have negotiated easements with resource companies which authorise the construction, operation and maintenance of gas pipelines, particularly the major trunklines from the Surat Basin to the Gladstone LNG plant or trunklines from gas fields to compressor stations. A key feature in most easement agreements is an obligation on resource companies to comply with the conditions of its Environmental Authority (EA). The EA sets out the government imposed environmental conditions that must be complied with when activities are being undertaken on your land by resource companies. For example, a typical EA will require that all land significantly disturbed by petroleum activities be rehabilitated to: a stable landform with a self-sustaining vegetation cover with same species and density of cover…

Rehabilitation for CSG Developments

There are similar rehabilitation conditions imposed on resource companies under EA’s for coal seam gas developments which have been authorised by Conduct and Compensation Agreements (CCAs) entered into between landowners and resource companies. Most CCAs contain a contractual commitment from the resource company to comply with the conditions of the EA including to consult with landowners about the nature of rehabilitation required on their land. In addition, there are typically specific obligations set out in the EA that must be complied with when rehabilitating land affected by gathering pipelines. The backfilling and rehabilitation of pipeline trenches must typically: achieve a stable landform; exhibit no subsidence or erosion gullies for the life of the operational pipeline; be re-profiled to a level…

Groundwater Monitoring – CSG Net Group

The Department of Natural Resources and Mines (DNRM) CSG Compliance Unit has established CSG Net Groups which aim to assist landowners to effectively monitor water levels in their water bores. Registering for a CSG Net Group allows landowners to upload monitoring data online using a program which automatically generates monitoring graphs for that selected bore. This allows landowners to identify trends and enables early identification of changes in water levels or bore performance. Annual reports are generated for each CSG Net Group which provides a summary of data collected and groundwater trends in the area. Data collected as part of the program is automatically forwarded to DNRM where it is stored in the Groundwater Database. The results are used to cross-reference…

You Have Rights

Even in circumstances where you have signed an agreement authorising the development of pipeline infrastructure on your land in exchange for the payment of compensation, there are ongoing rehabilitation obligations that must be met by resource companies. The standard of rehabilitation on your land will either comply with the EA conditions or not. If EA conditions are not complied with, the resource company may have committed “environmental harm” under the Environmental Protection Act 1994 (EPA). You have rights to demand that rehabilitation be performed to a standard consistent with that identified in the EA. You have the ability to take action under the EPA to ensure compliance. Resource development is short term in nature compared to the long term productivity…

Aboriginal Cultural Heritage: More than Dots on a Map

A recent decision in NSW highlighted the importance of undertaking a proper assessment of Aboriginal cultural heritage in order to obtain development approval for a project. In Darkinjung Local Aboriginal Council & Ors v Minister for Planning & Infrastructure Anor [2015] NSWLEC 1465 the NSW Land and Environment Court refused the extension of an existing sand quarry near Gosford. The proposal included the excavation of a 30m deep, 500m wide disturbance area. A number of significant sites were identified by Darkinjung Local Aboriginal Land Council (Darkinjung). These sites were: a rock engraving site commonly referred to by the parties as the “Women’s Site”; a “Stone Arrangement” site, of high cultural significance; and other engraving sites. The Darkinjung contended that the…

Predicated Impacts to Hutton and Precipice Bores

Landowners across the region should be aware that the impacts of the groundwater extraction associated with coal seam gas (CSG) development may not be limited to the Walloon Coal Measures as originally predicted in the Underground Water Impact Report (UWIR) in 2012. The revised UWIR was released in draft in March 2016. The report concludes that bores sourcing water from the Hutton Sandstone and Precipice Sandstone aquifers may be impacted by water extraction from the CSG industry. The aquifer known as the Walloon Coal Measures is the CSG target formation in the Surat Basin. The revised UWIR indicates that a further 64 bores sourcing water from the Walloons Coal Measures are likely to suffer a decline in water level within…

The Mineral and Energy Resources (Common Provisions) Act 2014 – Update

P&E Law lodged a recent submission on behalf of landowners in respect of the Palaszczuk government’s Mineral and Other Legislation Amendment Bill 2016 introduced in February 2016. The Bill proposes to amend the Mineral and Energy Resources (Common Provisions) Act 2014 (the MERCP Act) which is currently scheduled to commence on 27 September 2016. On a positive note the Bill will amend the MERCP Act to restore community rights to object to mining lease applications. There are some provisions of the Bill aimed at protecting agricultural infrastructure like stockyards, bores and artesian wells as restricted land. In our view the amendments take away important existing protections for landowners. P&E Law in its submission focussed on 4 key reforms that significantly disadvantage…

Free, Prior and Informed Consent

The United Nations Declaration on the rights of Indigenous peoples includes in Article 19 a fairly narrowly focused requirement for States to obtain free, prior and informed consent before adopting measures that may affect Indigenous peoples. The concept of free (with no coercion, intimidation or manipulation), prior (with the consent to be sought long enough before any activities are to take place to allow time for indigenous consultation and decision-making) and informed (including all necessary information such as the nature, size, term, environmental impacts including positive and negative consequences of them) consent is one that can be tailored by Aboriginal and Torres Strait Islander groups to ensure that there is effective decision-making on their lands and waters. The Native Title…

Rehabilitation Costs and the Chain for Responsibility Reforms

On 15 March 2016 the Environmental Protection (Chain of Responsibility) Amendment Bill 2016 (the Bill) was introduced into the Queensland Parliament. The purpose of the Bill is to amend the Environmental Protection Act 1994 (EP Act) to: facilitate enhanced environmental protection for sites operated by companies in financial difficulty; and avoid the State bearing the costs for managing and rehabilitating sites for financial difficulty. (Explanatory Notes p1) This Bill seeks to ensure that companies in financial difficulty continue to comply with environmental obligations and bear associated management and rehabilitation costs without these burdens falling on the taxpayer. These changes following the recent moratorium on underground coal gasification (UCG) projects and the prosecution of Linc Energy for alleged breaches of the…

Approval Requirements under the Commonwealth EPBC Act for Vegetation Clearing

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Australian Government’s primary environmental legislation and is designed to protect Matters of National Environmental Significance (MNES). This legislation applies in addition to any state or local government environmental assessment processes and approval. Approval may be required by landholders under the EPBC Act to clear vegetation even if you currently hold a state approval such as a ‘High Value Agricultural Clearing Permit.’ Matters of National Environmental Significance (MNES) MNES are listed in Part 3 of the EPBC Act and include: World and national heritage places; Internationally significant wetlands (declared RAMSAR wetland); Listed threatened species and ecological communities; Listed migratory species; and The Great Barrier Reef Marine Park. The ‘Protected…

Senate Select Committee on Unconventional Gas Mining

P&E Law welcomed the Senate Select Committee on Unconventional Gas Mining and made a submission setting out a number of our concerns including: Give landowners the right to refuse CSG mining on their land. Impose statutory obligations on CSG companies to disclose relevant information to landowners negotiating CCAs including: Noise modelling Dust modelling Development plans identifying proposed future infrastructure Weed and water baseline studies Surface and groundwater baseline studies Management plans, including rehabilitation plans, soil management plans, weed management plans etc. Reverse the proposal to allow “opt out agreements” whereby CSG companies approach landowners to “Opt Out” of the statutory framework for CSG mining, avoiding many of the statutory protections in place; Abandon the Queensland government’s proposed change to do…

CARBON OPPORTUNITIES FOR LANDHOLDERS

Recently the Commonwealth Government’s Clean Energy Regulator purchased over 45 million tonnes of carbon abatement measures at the second Emissions Reduction Fund auction held on 4 and 5 November 2015. The Fund was established through a variety of legal regulation under the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth). With the advent of the Commonwealth government’s Carbon Farming Initiative as part of its Direct Action policy, landholders can take advantage of significant financial incentives to negotiate carbon sales contracts for their properties. Farmers and landowners who take steps to reduce greenhouse gas emissions may be able to earn carbon credits from activities such as: reducing livestock emissions; increasing efficiency of fertiliser use; enhancing carbon in agricultural soil; storing carbon through…

Updated Underground Water Impact Report

In early 2016, a draft update to the Underground Water Impact Report (UWIR) for the Surat Cumulative Management Area (SCMA) will be released by the Office of Groundwater Impact Assessment (OGIA) for public consultation. We strongly recommend all landowners review the draft update UWIR to determine whether their bores will be affected by the continued water extraction in the region. The current UWIR was approved by the Department of Environment and Heritage Protection and became effective on 1 December 2012. The report assesses the anticipated impacts of cumulative water extraction by coal seam gas companies on underground water resources such as bores and springs in the SCMA. The report identified some 85 bores that would be immediately affected by the…

Case Update – Endocoal Limited v Glencore Coal Queensland

In Endocoal Limited v Glencore Queensland Pty Ltd and Department of Environment and Heritage Protection [2014] QLC 54, the Land Court found that a coal mining company applying for a mining lease was required to enter into a make good agreement with a neighbouring coal mining operator. In this case, Endocoal Limited (Endocoal) applied for a mining lease for an open cut coal mine near Springsure. Since 2012 Glencore Queensland Pty Ltd (Glencore) has operated the Rolleston Coal Mine, which neighbours the proposed site for the Endocoal mine. Glencore objected to the grant of the mining lease and the Environmental Authority on the basis that there would be adverse impacts to a water supply known as Naroo Dam. Glencore use…

Author: Tracey Jepson

We regularly distribute updates to our clients and contacts on specialised areas of law.