Farmers: NSW Govt stealth attack on Landholders Rights a huge betrayal

Published: October 30, 2015

Landholders across NSW have described changes that were rammed through Parliament by the NSW Government last week, without public consultation, as a stealth attack which has drastically weakened the rights of landholders to protect their land from coal and gas mining.

Last week the NSW Parliament passed the Mining and Petroleum Legislation Amendment (Land Access Arbitration) Bill 2015 which, amongst other things, amended the crucial clauses which allow landholders to withhold consent for mining on ‘significant improvements’ on their land.

The significant improvements clauses had been used previously by farmers at Bellata in north-west NSW to reject CSG company Leichardt Resources, and are the subject of a current legal challenge by landholders from the Southern Highlands of NSW against Hume Coal exploration in the area.

They had also been used by Lismore Council to prevent exploratory seismic surveys by Metgasco on local roadsides and by Moree Council to reject exploratory seismic surveys on roadsides throughout the local government area.

“The changes rammed through Parliament last week, without any public consultation, have dramatically weakened landholder rights in NSW” said Penny Blatchford, a farmer in the Bellata area of north-west NSW.

“The Government has attacked one of the single most important powers which we had as farmers to limit CSG gas mining – the power to withhold consent in areas of ‘significant improvements’. 

“The amendments have severely narrowed the definition of significant improvements, so that very few landholders will be able to use it to prevent impacts on improved areas or farm infrastructure. 

“Farmers will now have to show that their improvements cannot ‘reasonably co-exist’ with mining and CSG AND that their improvements ‘cannot reasonably be relocated or substituted’. 

“So, these retrograde changes may result in farmers being forced to move farm infrastructure to suit mining companies, which is an absolutely preposterous idea.

“This NSW Government was first elected in 2011 promising to protect farmland from mining. They failed to do that, and now they have gutted one of the only powers that farmers already had available to protect our land” she said.

“The exemption in the new Bill which allows seismic testing on roadsides without landholder consent is an extraordinary attack on landholder rights and on Local Councils” said Peter Nielsen, a farmer at Bentley in the Northern Rivers.

“It means that companies like Metgasco will no longer have to seek consent from Lismore Council or adjoining landowners for seismic activities on Council roads.

“It's a massive step backwards from a Government and a Minister that has pretended that it supports landholder rights” he said.

“I am one of several landholders in the Southern Highlands who are in the midst of a current legal challenge against Hume Coal due to the impacts that their proposed exploration activities will have on farm infrastructure and other improvements on my property” said Peter Martin, a landholder from the Southern Highlands.

“I am gobsmacked that this legislation has been rammed through Parliament whilst we are waiting for a decision on our legal case. It is a huge betrayal of landholders in this region.

“Whilst the changes won’t immediately affect our case, it means that in the future, landholders here will have very few rights to protect farm infrastructure and improvements from mining companies.

“It paves the way for Hume Coal to turn our part of the Southern Highlands into a dangerous, polluting coal mine and for mining companies across the state to ride roughshod over landholders” he said.

 

 

Briefing:  Changes that Weaken Landholder and Local Council Rights

 

  1. Changes to the Petroleum (Onshore) Act 1991 which were rushed through both houses of Parliament last week change the definitions of significant improvements and remove the rights of Councils to prevent seismic testing on public roads.
  2. The changes were introduced as part of the Mining and Petroleum Legislation Amendment (Land Access Arbitration) Bill 2015.
  3. The Bill dramatically weakens the definition of significant improvements, requiring landholders to show that their improvements cannot reasonably co-exist with mining and CSG AND that their improvements cannot reasonably be relocated or substituted.
  4. The Bill also introduces a clause that exempts exploratory seismic testing on roadsides from requiring the consent of Local Councils or adjoining landholders.
  5. The Bills were rammed through without any public consultation whatsoever, or any time for landholders to read them let alone assess them. 
  6. However, the NSW Minerals Council have admitted they saw advanced drafts and got changes that they wanted included. 
  7. Yet again, the mining industry is writing NSW laws, and the community is left in the dark while their few remaining rights are ripped away.

Impacts of the Changes

 

  1. The amendments have severely narrowed the definition of significant improvements, so that very few landholders will be able to use it to prevent impacts on improved areas or farm infrastructure. 
  2. Landholders are even likely to be forced to MOVE farm infrastructure for mining companies under these law changes.
  3. Farmers in the Southern Highland are currently in court challenging the definition of significant improvements on their properties against a coal mining company. 
  4. That case was expected to set a precedent which would have been useful to farmers throughout the state. However, this law change means that the results of that case will have no effect, and in future landowners will have very few grounds for legal challenge.
  5. The new amendment relating to seismic activities means that Metgasco and other coal and CSG companies, will no longer have to seek consent from Local Councils for seismic activities on Council roads.
  6. It means that Lismore Council will now longer have the power to prevent Metgasco from conducting seismic activities in the region later this year or early next year.
  7. It also means that a number of Councils, including Moree and Lismore, who have passed resolutions to put a moratorium on CSG exploration on Council roads in their regions, have effectively lost their powers to implement those resolutions. 

 

Petroleum (Onshore) Act 1991 – Significant Improvement Changes

 

  • Section 72 of the Petroleum (Onshore) Act 1991 places restrictions on the rights of petroleum title holders over land. 
  • Section 72 1) c) prevents petroleum holders from carrying out ‘any prospecting or mining operations’ on land ‘on which is situated any improvement’ unless they have the written consent of the owner of the land.
  • The section in its entirety reads as follows:

“72 Restrictions on rights of holders of titles over other land

(1) The holder of a petroleum title must not carry on any prospecting or mining operations or erect any works on the surface of any land:

(a) on which, or within 200 metres of which, is situated a dwelling-house that is a principal place of residence of the person occupying it, or

(b) on which, or within 50 metres of which, is situated any garden, vineyard or orchard, or

(c) on which is situated any improvement (being a substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work, or other valuable work or structure) other than an improvement constructed or used for mining or prospecting operations,

except with the written consent of the owner of the dwelling-house, garden, vineyard, orchard or improvement (and, in the case of the dwelling-house, the written consent of its occupant). “

  • The changes included in the new amendments remove s73 (3) and insert the following clauses 72 (5) – (7):

 

“(5) The holder of the petroleum title is to pay the costs of the owner of the dwelling-house, garden, vineyard or orchard or improvement (or occupant of the dwelling-house) in those proceedings in the Land and Environment Court.

(6) In this section, significant improvement on land, in relation to a petroleum title or an access arrangement, means a work or structure that:

(a) is a substantial and valuable improvement to the land, and

(b) is reasonably necessary for the operation of the landholder’s lawful business or use of the land, and

(c) is fit for its purpose (immediately or with minimal repair), and

(d) cannot reasonably co-exist with the exercise of rights under the petroleum title or the access arrangement without hindrance to the full and unencumbered operation or functionality of the work or structure, and

(e) cannot reasonably be relocated or substituted without material detriment to the landholder, and includes any work or structure prescribed by the regulations for the purposes of this definition, but does not include any work or structure excluded from this definition by the regulations.

(7) This section does not apply to the holder of a petroleum title who carries out a seismic survey on a road within the meaning of the Road Transport Act 2013, but only if the holder has given written notice of at least 21 days (or such other period as is prescribed by the regulations) of the carrying out of the seismic survey to the owner of the dwelling-house, garden, vineyard, orchard or improvement concerned (and, in the case of a dwelling-house, the occupant).”

 

  • Therefore, the changes dramatically weaken the definition of significant improvements, and put very heavy constraints on what can qualify, even to the extent that farmers will probably be required to MOVE farm infrastructure to suit mining companies.
  • The new clause s72 (7) completely removes the requirement for consent from landholders for seismic exploration activities on roadsides.

 

Mining Act – Significant Improvement Changes

 

The current definition of significant improvement in the Mining Act 1992, reads:

"significant improvement" means any substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure.

The new definition passed in the amendments is as follows:

 

“significant improvement on land, in relation to an authorisation or an access arrangement, means a work or structure that:

(a) is a substantial and valuable improvement to the land, and

(b) is reasonably necessary for the operation of the landholder’s lawful business or use of the land, and

(c) is fit for its purpose (immediate ly or with minimal repair), and

(d) cannot reasonably co-exist with the exercise of rights under the authorisation or the access arrangement without hindrance to the full and unencumbered operation or functionality of the work or structure, and

(e) cannot reasonably be relocated or substituted without material detriment to the landholder,

and includes any work or structure prescribed by the regulations for the purposes of this definition, but does not include any work or structure excluded from this definition by the regulations”.

 

In relation to seismic activities on roadsides, the amendment Bill includes a new clause into s31 of the Mining Act 1992 which removes the requirement for consent from landholders as follows:

 

(7) This section does not apply to the holder of an exploration licence who carries

out a seismic survey on a road within the meaning of the Road Transport Act 2013, but only if the holder has given written notice of at least 21 days (or such other period as is prescribed by the regulations) of the carrying out of the seismic survey to the owner of the dwelling-house, garden or significant improvement concerned (and, in the case of a dwelling-house, the occupant).

 

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