Reforms to the Land Access Famework
On 4 March 2014, the Land Access Implementation Committee’s Report (the Report) for the Minister for Natural Resources and Mines was released by the Queensland Government.
The Report makes recommendations for implementing land access reforms contained in the government’s Six Point Action Plan. The Six Point Action Plan is the government’s response to a review of the land access framework which was undertaken in early 2012 by an independent panel of agricultural and resource industry experts.
Some of the important recommendations to the Minister include:
Conduct and Compensation
The current heads of compensation in the relevant legislation should not be changed. The key reasons for maintaining the current position is that both landholders and resource companies are becoming more experienced and educated in the area and the negotiation is “evolving naturally”. This means no clarity on the issues of landowners’ time.
On a positive note, this means there will be no erosion of landholder rights. Unfortunately, the opportunity to amend the heads of compensation to expressly provide for payment to landholders of professional fees which are incurred in negotiations such as town planners’ fees and agronomists’ fees has been missed. While these costs would be reimbursed to the landholder under a common land resumption matter under the Acquisition of Land Act 1967 (Qld), it is not the case under the resource legislation. The chance to enshrine in law the principle of compensating landholders for their often extensive time spent dealing with resources companies was also foregone.
Another recommendation of the Report is for the Land Court’s jurisdiction to be expanded upon to enable the Land Court to make determinations on matters relating to conduct issues and the behaviour of parties during the negotiation process. We consider this to be a positive change given that at present the Land Court can only make determinations on matters related to compensation. Landholders will be able to seek a court determination on important conduct issues such as weed management, environmental insurance, rehabilitation etc.
Noting Conduct and Compensation Agreements on Title
CCAs should be registered on title. Given the confidential nature of many agreements, the information on title will be limited to the names of the parties and their contact details. Resource companies will have the responsibility to arrange for the registration of the CCA.
CCAs bind all existing and future owners and occupiers of the land. This recommendation will therefore enable incoming purchasers to be aware that a CCA is connected to the land.
Opting out of Conduct and Compensation Agreements
The Report recommended that affected landholders should have the option to opt out of entering into a formal CCA. This is to provide for scenarios where a landholder may want an informal arrangement with a resource company where an existing relationship exists for instance. The Report recommends that “opt-out agreements” should still be noted on title given that a prospective purchaser will be bound by it.
This is not a positive change. Given that the recommendations require an “opt-out agreement’ to be noted on title, there is still a requirement for a written agreement between the parties. There are concerns that landholders may sign opt-out agreements that are inadequate in that they do not adequately protect the land or their business for present and future generations. A sub-standard agreement would run with the land for an extended period, possibly 30 years. The CCA framework has been developed over many years to afford minimum protections for landholders, the community and the environment and parties should not be able to “opt-out”.
Improved Land Access Information and Guidance
The Report recommends that a base CCA template be developed that provides for standard terms with the option of adding other terms and conditions specific to the parties individual circumstances. We welcome improvements to the government’s current CCA template which is at present deficient in a number of ways. However, given that all circumstances are different, we encourage landholders to seek professional advice when negotiating a CCA to ensure their rights are protected.