Review of coexistence institutions and other proposed land access reform

Key insights

• The Queensland Government has consulted on legislative changes that would expand and clarify the scope and functions of its key coexistence institutions including the GasFields Commission Queensland and the Land Access Ombudsman.
• The consultation process proposes the introduction of a new "risk assessment" framework for the classification of activities as either "preliminary activities" or "advanced activities" under the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld).

Coexistence institutions

In November 2022, the Department of Resources released its Discussion Paper A review of coexistence principles and coexistence institutions. The Discussion Paper progresses actions 23 and 24 of the Queensland Resources Industry Development Plan.

The Discussion Paper addresses the government's planned review of institutions responsible for assisting with and regulating coexistence between resources companies and landholders, and notes the lack of clarity about each institution's role. Some roles also overlap which has resulted in an overly (and unnecessarily) complex institutional framework for land access matters. The government's regulatory and compliance roles, and the Land Court's role as the final arbiter of disputes, did not form part of the scope of the review.

Prior to the release of the Discussion Paper, the Department undertook targeted engagement with internal and external stakeholders to identify key issues to address as part of this review. The following concerns were raised:

• institutional arrangements need to provide support across all land access negotiations, including during the negotiation process for compensation and conduct agreements and make good agreements;
• landholders do not feel empowered to engage in negotiations on land access;
• institutional arrangements need to capture the entire resource sector and could be expanded to include renewable energy projects and other emerging industries;
• independence and branding are particularly important and there is a risk of perceived bias if dispute resolution services and broader industry engagement or advocacy roles are combined; and
• the land access space is crowded, with each entity performing slightly different (yet sometimes overlapping) roles and functions.

Based on the feedback received on the Discussion Paper, in September 2023 the Department of Resources released its Consultation Paper Coexistence institutions & CSG-induced subsidence management framework.

The Consultation Paper sought feedback on legislative changes to expand and clarify the scope and functions of the GasFields Commission Queensland, the Land Access Ombudsman and the Office of Groundwater Impact Assessment.

The Consultation Paper proposes that:

• GasFields Commission: to be renamed "Coexistence Queensland", and refocus its existing functions on matters related to coexistence and land access. Coexistence Queensland would provide education and information to both the resources and renewable energy sectors; and
• Land Access Ombudsman: its functions to be expanded to include a broader range of land access disputes through an alternative dispute resolution process and to be given a determinative role in certain disputes. The proposals intend to provide stakeholders with an independent dispute resolution process to reduce reliance on the Land Court to resolve land access matters.

Land access risk assessment framework

The Consultation Paper also proposes the introduction of a new "land access risk assessment framework" for preliminary and advanced activities. It is proposed that:

• resource authority holders have to complete a "risk assessment" in relation to whether activities are "preliminary activities" or "advanced activities" under the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCP Act);
• resource authority holders will provide this assessment to owners and occupiers at least 20 business days prior to commencement of the proposed activities; and
• disputes regarding the categorisation of activities can be referred to the Land Access Ombudsman to make a binding decision on the matter. It is proposed that the specific requirements for this risk assessment will be prescribed in the Mineral and Energy Resources (Common Provisions) Regulation 2016 (Qld).

A new offence provision is also proposed to be included in the MERCP Act regarding compliance with these requirements.

Consultation closed on 8 December 2023. The Government is in the process of reviewing the feedback which will inform the drafting of the proposed legislative amendments.

Authors: Libby McKillop, Counsel; Leanne Mahly, Lawyer; and Martin Doyle, Lawyer.