Queensland is rich in agricultural, mineral and fuel resources. At times, the interaction between these critical industries creates challenges. Landholders are particularly concerned that resource activities, particularly coal seam gas, will adversely impact their land and production.
Generally, resource companies can undertake those resource activities that are authorised by their petroleum leases and the related environment authorities. However, additional protections are in place for land in an area of regional interest. Importantly, this includes agricultural land identified in state government regional plans as being in a priority agriculture area or a strategic cropping area.
When a resource activity is proposed on land in an area of regional interest, further assessment of the activity is required under the Regional Planning Interests Act 2014. Specifically, resource companies are required to apply to the Queensland Government Department of State Development, Infrastructure, Local Government and Planning for a Regional Interests Development Approval. In deciding whether to grant a resource company a RIDA, DSDILGP will assess the application against prescribed criteria in the RPI Act, including the consideration of the expected impacts of the activity on the 'regional interest' land.
However, the RPI Act provides several exemptions to the requirement to obtain a RIDA, three of which are most relevant for landholders:
- An exemption will apply where a resource activity can be carried out in an area of regional interest in less than one year.
- A resource activity may be exempt if it was carried out lawfully on the land before it was identified as land in an area of regional interest. This is particularly a consideration for resource activities approved before January 30, 2012.
- A resource company is not required to obtain a RIDA where it has entered into either a conduct and compensation agreement or other voluntary agreement with the landowner. For this exemption to apply, the activity must not be likely to have a significant impact on the priority agriculture area or a strategic cropping area, and the activity must not be likely to have an impact on land owned by a person other than the landowner who entered into the agreement.
These exemptions are important because, if applicable, they allow a resource company to avoid assessment by DSDILGP under the RPI Act and in doing so:
- They avoid public scrutiny of the resource activity and its impacts; and
- Avoids the opportunity for landowners to make a submission on the application and/or to appeal a decision to grant a RIDA.
Other risks for landholders
Conduct and compensation agreements or other voluntary agreements typically detail how the resource activities will be conducted on affected land. They also set out a landholder's right to compensation for adverse impacts of those activities on the landholder's land. Landholders should be aware that these agreements are legally binding and may not sufficiently protect the landholder's rights, particularly with respect to the adverse impacts of CSG-induced subsidence. It is therefore critical that landholders obtain legal advice before signing such agreements - the cost of which will be reimbursed by the resource company.
There are also circumstances where resource companies erroneously claim to be exempt from the assessment process under the RPI Act. Where landholders think this may be the case, they should seek advice as soon as they become aware of potential resource activities.
With evidence mounting that CSG-induced subsidence has and will continue to occur as resource activities increase, now is the time for landholders to gain a better understanding of the mechanisms available to protect their land.
- Kylie Wilson is a partner, Sonia Mortimer a special counsel, Kayla Plunkett a graduate and Jessica Borg an undergraduate at Holding Redlich.
