- Recently, almost unprecedented changes or proposals for change have been made to the laws governing coal mining and coal seam gas activities in NSW. Land access arbitration arrangements are of particular importance to rural landholders
- The Walker Report has made 32 recommendations to improve the arbitration land access framework. In August, the government confirmed its intention to implement 31 of the 32 recommendations
- The chief scientist’s report released in September concluded that “there are no guarantees” and that it is “inevitable that the coal seam gas industry will have unintended consequences including … natural disasters”
- The implications of that conclusion for the laws of tort with respect to private (and potentially public) nuisance and negligence with respect to damages claims by landholders appear cause for concern. The implications may also extend to applications for injunctive relief against such impacts
The past 18 months have seen almost unprecedented legislative and regulatory change – and proposals for legislative change – with respect to the laws governing coal mining activities and coal seam gas (CSG). The proposed changes to land access arrangements have drawn particular attention because of their impact on rural landholders.
The Walker Report
In response to the complaints of rural landholders, and members of the NSW Law Society and Bar Association, on 15 April the government commissioned Bret Walker SC to review the land access arbitration process relating to exploration under the Mining Act (1992) and the Petroleum (Onshore) Act (1991) (the Acts). Walker SC’s subsequent report, entitled ‘Examination of the land access arbitration framework’, made 32 recommendations to improve the arbitration land access framework.
In August, the government confirmed its intention to implement 31 of Mr Walker SC’s recommendations, and further consider his 32nd, that went beyond his terms of reference. Disappointingly, the recommendations which required legislative amendment will not be introduced to the Parliament until 2015.
Mr Walker SC’s recommendations fall within five broad topics:
- Qualifications for, and terms of appointment of, arbitrators (recommendations 1-11);
- Procedures and legal representation at mediation and arbitration (recommendations 12 – 18);
- “Significant improvements” (recommendations 19-24);
- Compensation (recommendations 25-28); and
- Appeals (29 – 31).
Recommendation 32 included consideration of ‘landholders accessing security deposits or the creation of a landholder rehabilitation fund in the event of an explorer causing damage’.
This is an important issue for landholders, and is submitted to be consistent with the September 2014 report into CSG of the chief scientist.