Landholders’ Right to Refuse (Gas and Coal Bill 2015)
On 4 March 2015 the Landholders’ Right to Refuse (Gas and Coal) Bill 2015 was introduced into the Australian Senate, which seeks to provide landholders with the right to refuse gas and coal mining on their land and to ban hydraulic fracturing. p&e Law lodged a written submission on the Bill and has provided evidence before the Senate Environment and Communications Legislation Committee Inquiry on the issue. While p&e Law supports the Bill, the inquiry allowed us to raise various other issues to the Committee which we believe could be addressed as part of the Bill.
Under Queensland’s Petroleum and Gas (Safety and Production) Act 2004 (PAG Act), landholders do not have the right to refuse CSG development on their land. The Bill seeks to address this issue by giving landholders the right to say no. While this will put landholders into a better bargaining position, it does not completely address the imbalance of power between parties negotiating agreements. Resource companies are often reluctant to disclose all of the relevant information to a landholder so they are unable to understand the full extent and significance of impacts from gas activities. Where information is provided, it is often scientifically complex and cannot be understood without expertise in that area. A landholder is expected to trawl through large documents with little to no expertise on the topic, while gas companies have teams of experts and professionals. The purpose of compensation is to compensate a landholder for impacts to their land, business and lifestyle; however, if the landholder is not aware what these impacts will be, a fair negotiation for compensation is impossible.
Landholders are approached by legally trained officers on behalf of the gas companies to negotiate agreements, such as Conduct and Compensation Agreements (CCA). Some people within the industry are misrepresenting to landholders the importance of obtaining independent advice on the agreements, which are complex legal documents and which can affect the land for 30 years or more. We believe that some companies are misleading landholders and pressuring them to enter into agreements while discouraging them from first obtaining independent advice. While providing landholders with the right to say no will enhance their bargaining position, there is still an imbalance of power favouring the gas companies when negotiating with landholders which needs to be addressed by the legislation.
The Bill also seeks to ban hydraulic fracturing (fracking), which is a process of injecting fluids into the ground at high pressure to create or enhance fractures in rock. There is a concern that fracking can create a connection between different aquifers and may result in an intermingling of waters of different qualities. In our submission we raised concerns about potential impacts from the mixing of waters in different aquifers as a result of fracking. We also discussed our concerns about the long term impacts on the Great Artesian Basin caused by the unlimited taking of groundwater by gas companies. We have suggested that people with interests in water that may be impacted by upstream extraction or contamination should be allowed to challenge the granting of approvals for unlimited extraction, or be entitled to compensation for these impacts if or when they occur. The current make good provisions in Queensland are too restrictive and do not cover potential long term impacts occurring downstream caused by extraction or contamination.