Over the past six months P&E Law has been engaged in a number of cases on behalf of landholders in dispute with resources companies primarily to have their land rehabilitated after the construction of coal seam gas infrastructure. Issues that consistently arise include weed invasion, subsidence, erosion, soil inversion and inappropriate seed mixes, all of which reduce productivity and require time and resources to fix.
In some cases resource companies have turned their backs on landholders experiencing these problems and ignored their complaints. However, there are a number of tools available to protect landholders in this situation which can be used to:
- require resource companies to rehabilitate land in accordance with their rehabilitation obligations; and
- give rise to claims for additional compensation where there has been a ‘material change in circumstances’.
A Conduct and Compensation Agreement (CCA) is a legally binding agreement between landholders and resource companies that often include contractual terms relating to rehabilitation. Landholders should check their CCA to see what terms relating to rehabilitation are included and what sanctions there are for a breach. There may be other clauses in the CCA to support a landholder’s claim for additional compensation where they have been affected by rehabilitation issues. Seek legal advice if you are unsure.
An easement document is another form of contract used for CSG infrastructure, including pipelines. This will often apply in a similar way to a CCA. Landholders should check the easement terms for requirements relating to rehabilitation and identify what sanctions there are for a breach.
An environmental authority (EA) is an environmental approval issued by the Department of Environment and Heritage Protection (for CSG activities that contain detailed requirements relating to rehabilitation. An EA governs the conduct of construction and applies in addition to a CCA or Easement. It is an offence under the Environmental Protection Act 1993 to breach conditions of an EA. Landholders should check the conditions in the EA to determine whether there is a potential breach.
Enforcement of Obligations
Tools 1, 2 and 3 can be used to enforce rehabilitation requirements on resource companies and to seek additional compensation where landholders have been further affected. This can be achieved in a number of ways depending on the circumstances by:
- triggering dispute resolution clauses under the CCA or Easement document;
- negotiating with the resource company or participating in mediation;
- lodging a complaint with the Department of Environment and Heritage Protection identifying potential breaches of the EA;
- commencing proceedings in the Land Court where there has been a material change in circumstance;
- commencing proceedings in the Planning and Environment Court where there has been a breach of the EA.