Mining Acts need severe surgery

IT is beyond doubt that some of the NSW legislation relating to mining is bad in substance and form.

The legislation is bad in substance because it is bad law.

In the first place, except for matters affecting the common good, private property should be sacrosanct.

What other private commercial entity can enter your land without your permission for the sole purpose of making a profit and, adding insult to injury, eventually leave your property worthless?

The Crown’s ownership under the Mining and Petroleum (Onshore) Acts, of coal or gas, is immaterial because it is not the Crown that wants to exploit them.

The Government conscience, if it has one, should compel it to declare that a mining company may have access to land only with the owner’s consent on agreed terms.

Often a money price will be the chief matter of contention between the parties.

The arbitration laws applying to the process for obtaining prospecting access to land in the absence of agreement are seriously unfair to landholders.

Notably, they do not apply where the miner and landholder agree on the terms of access.

But if agreement is not reached compulsory arbitration is the next step in the process. The so-called “arbitration” in this context is no more than a pseudo-judicial farce intended to show the trappings of fairness.

It would be hard to imagine a more unbalanced and badly considered set of arbitration laws.

Their immediate removal would markedly improve the mining laws in NSW - and the Acts would work quite well without them.

Such a move would be certain to be rejected by the miners and by the government. By the miners, because the present certainty of having an advantage over the landholders would be lost; and by the government because the need to increase long-term sources of revenue dominates policy making and leaves justice and fairness out in the cold.

In a society where resources are limited, it is a fundamental duty of government to make laws tending to fairly reduce serious imbalance between competing community interests.

Now is the time for it to correct a serious imbalance between the mining companies and the landholders and repeal all provisions of the Acts relating to arbitration.

The Acts can then be formally tidied up so that no difficulties of interpretation are created by the repeals.

With the addition of provisions that make entry onto private land by mining companies without the owner's consent illegal, the Acts should work well enough.

If the suggested changes are made there will be a great clearing of the air. and a smoothing of the way.

Finally, it must be made clear in the Acts that the integrity of aquifers is paramount and outside the authority of the parties to affect adversely.

John Nader QC is a retired judge of the Northern Territory Supreme Court and NSW District Court. For the past 27 years, he has been based on his farm, "Worendai” at Merriwa.