Friday, 10 February 2017
On 1 December 2016, the Mining and Petroleum Legislation Amendment (Land Access Arbitration) Act 2015 was commenced to reform the land access arbitration framework. It introduced a range of improvements in line with recommendations of the 2014 Walker Report. Read more about the Walker Report.....
In line with the recommendations of the Walker Report, the Act requires the holder of the prospecting title to pay the reasonable costs of a landholder’s participation in negotiating the access arrangement (section 142).
To ensure these costs do not become uncontrollable at the stage of negotiation, they have been capped at $1,500 for exempt prospecting operations and $2,500 for assessable prospecting operations (both exclusive of GST). The explorer must pay the GST amount in addition to the landholder’s capped costs. Caps are set out in a Ministerial Order published in the NSW Gazette.
No cap has been set on the reasonable costs payable by an explorer at mediation and arbitration as these processes can vary substantially depending on the circumstances. The explorer must still cover the landholder’s costs in making the access arrangement during these stages of the process.
The particulars of each case at mediation and arbitration are to be considered in the determination of reasonable costs at these stages. Nothing in the legislation prevents a titleholder from paying an amount above these caps. If parties cannot come to an agreement on reasonable costs, the arbitrator or the courts will make this determination.
The Land, 9 December 2016:
NEW regulations to balance mining and gas development against private property rights threatens to cause perverse outcomes, pushing landholders to lock the gate and head straight to court.
An alliance of Cotton Australia and NSW Farmers, Irrigators and Country Women’s Association (CWA) hit out at the caps on costs to be borne by mining and gas explorers, saying they fall short, leaving landholders potentially thousands of dollars out of pocket.
The group issued a statement “calling out the NSW government” and putting it on notice ahead of a compulsory review of the new regulations, set to kick off in six months.
“The caps announced by the NSW government are a far cry from the actual costs likely to be incurred,” said NSW Farmers president Derek Schoen.
NSW CWA president Annette Turner said “unfortunately, (the regulation) fails to live up to the promise of a balance between landholders and resource companies”.
To be continued.....