DRAFT guidelines for arbitration over land access do not deal with the key issue of compensation for landholders’ time and money, nor guarantee the right to legal representation.
The Land has obtained a draft set of new procedures for arbitration, which contain some concerning changes for landholders facing the prospect of minerals or gas exploration.
This week, Mr Roberts repeated his commitment to landholders.
The draft document, titled Draft Procedural Guidelines for land access arbitration, has been distributed to stakeholders for feedback.
A Sydney legal senior counsel with experience in arbitration, who wishes to remain anonymous, said “the guidelines would leave landholders fighting a David versus Goliath battle, but David won’t have a slingshot”.
Arbitration proceedings kick in when a landholder cannot agree to terms of access for a minerals or gas exploration company on their property.
Currently, landholders do not have a right to legal representation and are not compensated for legal cost or the time and money spent in arbitration.
The system creates uncertainty about compensation for damage done to improvements made by the landholder to the property during exploration – such as new infrastructure and improved pasture.
The arbitrators who conduct hearings do not need to have legal qualifications and the process’ timeframe is not capped, dragging on for 18 months in some instances.
Mr Roberts pledged to adopt all 32 recommendations of an independent review of the arbitration process, which was conducted by senior counsel Bret Walker.
He said the government would introduce the reforms to parliament after the March State election.
The draft was sent out prior to parliamentary debate.
Its introductory letter said “following targeted stakeholder consultation, it is intended to amend the regulations in 2015 to prescribe the procedural guidelines into law”.
The guidelines do not refer to
legal representation for landholders during arbitration, or compensation for costs incurred.
The guidelines propose a system for baseline reports, to establish the current state of the land.
The landholder would have just five business days to respond to the report, which could require analysis of highly technical hydrogeological and ecological data.
A spokesman for Mr Roberts said the minister would deliver on his promised reforms.
The draft document dealt with proceedings during arbitration and
that other legal reforms were also required, which would be introduced to parliament this year, he said.
“The government remains committed to implementing all of Mr Walker’s recommendations.”
Some of the recommendations, “such as the right to legal representation and changes to the costs framework” need amendments to legislation, which will be introduced to Parliament in 2015.
The Sydney legal senior counsel said the guidelines would not just affect procedure, “there are substantive matters in there relating to compensable loss and significant improvements”.
“The guidelines state pasture improvements are not compensable under arbitration, and the system would mean a much tighter time frame for landholders to work in.
“Miners employ lawyers and experts which landholders can’t afford.”
Mike Foley
Senior journalist for The Land.
Senior journalist for The Land.
