CONTROVERSIAL NSW land access laws will undergo sweeping reform as the NSW government pledges to adopt all 32 findings of an independent review.
When enacted the recommendations will dramatically shift the way land access is conducted between landholders and resources exploration companies.
The issue has festered like an open wound for farmers across the State.
Resources and Energy Minister Anthony Roberts said the proposed reforms would make “make the arbitration process fairer, more efficient and more transparent for landholders, explorers and the community”.
Responsibility for legal costs has been a sore point for landholders in the arbitration process. Currently legal bills are borne by landholders despite the outcome of the negotiations. The new regime would require resources companies to foot the bill.
“Landholders currently pay their own legal costs despite being once only participants, but ... explorers will now bear all costs associated with arbitration, set and capped by an independent expert," Mr Roberts said.
"Timeframes will also be capped, providing greater certainty for landholders and industry."
The government has agreed to a raft of significant changes, including:
- Landholders guaranteed the right to legal representation
- Baseline environmental data be reported on by independent experts prior to arbitration
- Laws made to require parties negotiate in good faith
- A new panel of arbitrators will be appointed, with stricter requirements on legal qualifications. The panel will expand from five arbitrators to 10 and current arbitrators can apply to be appointed
- Arbitrators be empowered to make a binding determination over significant improvements (which cannot be disturbed by exploration activity)
- Exploration companies to pay for landowners’ time and legal costs (capped to a “reasonable” sum)
The government also gave in-principle support to the review's recommendation that if arbitration fails and a legal dispute in the Land and Environment Court ensues, landholders’ costs would be covered by the explorer.
"Reasonable costs payable to landowners by explorers (and the associated cost caps)” will be incorporated into the new laws, the government said.
Mr Roberts said the government planned to introduce new laws to parliament for debate in 2015.
Arbitration is negotiated between a landholder and the mining or gas company prior to exploration. Under current laws:
- Landholders pay their own legal costs
- Arbitrators are not required to have legal qualifications
- Landowners can only have legal representation if the explorer consents
- Disputes frequently occur over what constitutes a significant improvement to a property
The report said to be appointed as an arbitrator, an applicant should satisfy strict criteria. They should be accredited through a recognised body such as the NSW Law Society or the Institute for Arbitrators and Mediators; have extensive arbitration experience and have extensive resources or agricultural industry experience, or be a legal practitioner who is eligible for appointment to the Supreme Court, with considerable litigation experience.
NSW Resources Minister will review the eligibility criteria to check it does not restrict suitably qualified arbitrators, and that it meets with the objectives of the arbitration process.
The independent review of the land access arbitration process was conducted by senior counsel Bret Walker. NSW Land and Water Commissioner Jock Laurie facilitated stakeholder group meetings.
“Both the NSW onshore resource Acts will be harmonised to reflect these changes and the recommendations will be implemented as quickly as possible,” Mr Roberts said.
Mike Foley
Senior journalist for The Land.
Senior journalist for The Land.
