• cancelling the authority; and

• in lieu of other noncompliance action, and only by agreement with the holder, requiring the authority holder to pay the State a penalty of not more than 2000 penalty units ($200,000).

Sections 74, 153 and 418 of the Act also require that consultation be carried out by the holder in the way and at the times provided for in the authority to prospect, petroleum lease or pipeline license or, if not provided for in those documents, in the way and at the times approved by the Minister.

If the authority to prospect, petroleum lease or pipeline license does not provide for, and the Minister has not approved, how consultation is to be carried out or when, there is no obligation on a holder to undertake consultation in a particular way or at particular times.

In these circumstances, it will be up to the holder to decide how it will undertake consultation, provided it discharges its obligations to use reasonable endeavours to consult. What is reasonable will depend on the particular circumstances of each case.

It goes without saying that a holder will not be able to, for example, unilaterally decide when and where it will meet with a land owner or occupier as that would be subject to negotiation between the parties and it would never be reasonable for the tenure holder to do that.

It has been the practice in the past –

• not to stipulate in an authority to prospect, petroleum lease or pipeline license how consultation should be carried out and at what times; and

• for the Minister not to approve how consultation should be carried out and at what times.

More recently, however, the practice has been to stipulate in an authority to prospect, petroleum lease or pipeline license that consultation should be carried out in accordance with the proposal set out in the application. General Ministerial guidelines are considered unnecessary.

There is no reason why a lack of guidelines should inhibit or hinder consultation between holders and land owners and occupiers -

• These kinds of matters are better decided by the negotiating parties;

• Compensation agreements have been mandatory, and have been successfully negotiated, between the mining and petroleum industries and land owners and occupiers for many decades without the need for guidelines; and

• The owners and occupiers of land are protected by –

• the statutory obligation on the holder to “use reasonable endeavours to consult” with each owner and occupier;

• the significant noncompliance action a holder could face if it fails to comply with its obligations;

• their ability to lodge an application in the Land Court for a determination of their compensation entitlement if they are unhappy with the progress of their negotiations; and

• the fact that a holder has no right to enter private land to carry out authorised activities, unless they have already successfully negotiated a compensation agreement or deferral agreement or negotiations have taken place and one of the parties has referred the matter to the Land Court for determination.

The Geothermal Energy Bill 2010 will be introduced into Parliament this week. It will contain amendments to all of Queensland’s resources Acts which are designed to ensure greater protection for land owners and occupiers and to facilitate better communications between holders and land owners and occupiers.

Among other things, the Bill will repeal the requirement in sections 74, 153 and 418 of the Act to require that consultation be carried out by the holder in the way and at the times provided for in the authority to prospect, petroleum lease or pipeline license or, if not provided for in those documents, in the way and at the times approved by the Minister as these requirements are not considered necessary.

The amendments in the Bill will require resources companies wanting to access private land for exploration and development to -

• provide entry notices to landholders before entering land to conduct preliminary activities that won’t disturb the land;

• negotiate a conduct and compensation agreement or a deferral agreement (or, if agreement isn’t reached, refer the matter to the Land Court) and also provide entry notices before entering land to undertake larger scale activities likely to significantly impact on the land; and

• comply with mandatory provisions in the new Land Access Code.

ADDITIONAL GENERAL INFORMATION

Concerned landholders may access support through –

• the Government’s Community Liaison Officer;

• the joint office with Department of Employment, Economic Development and Innovation (DEEDI - Mines) and Department of Environment and Resource Management officers who can provide information to landholders in the Surat Basin (Dalby and Roma areas);

• Regional Mining Registrars; and

• Legal advice and support, including about compensation, is available from a Government-funded lawyer in the Toowoomba Legal Aid Office.

These and other contact details are:

? Legal Aid - phone 1300 65 1188 or visit www.legalaid.qld.gov.au

? The CSG/LNG Hotline – on 1325 23 or visit www.lng.industry.qld.gov.au

? The Community Liaison Officer - phone 07 3227 6564 or email minesCLO@dme.qld.gov.au

? Joint DEEDI/DERM offices for the Surat basin - Roma office phone 07 4624 1500 or Dalby office phone 07 4624 1540 and

? the Mining Registrar in your district - details available at http://www.dme.qld.gov.au/contact

BACKGROUND INFORMATION

CONSULTATION OBLIGATIONS

The holder of an authority to prospect, petroleum lease or pipeline license (petroleum authority holder) “must consult, or use reasonable endeavours to consult, with” –

• for an authority to prospect or petroleum lease - each owner and occupier of private or public land on which authorised activities are, or are likely to be, carried out; and

• for a pipeline license - each owner and occupier of access land and other private or public land on which authorised activities are, or are likely to be, carried out, other than land over which the licence holder holds an easement for the construction or operation of the pipeline.

The consultation must be about the carrying out of authorised activities (including, for example, crossing access land for the authority) to the extent they relate to the owners and occupiers.

Consultation must be carried out in the way and at the times provided for in the authority to prospect, petroleum lease or pipeline license or, if not provided for in those documents, in the way and at the times approved by the Minister.

A failure on the part of the petroleum authority holder to comply with these requirements does not prevent them from carrying out authorised activities. [s74 (authority to prospect), s153 (petroleum lease) and s418 (pipeline license), P&G]

However, failing to comply with these obligations could result in the Minister taking noncompliance action for the failure to comply with the Act. [s.790 and s.791(2)(b), P&G]

Where –

• the authority to prospect, petroleum lease or pipeline license does not provide for; and

• the Minister has not approved,

the way in which consultation is to be carried out or when, it will be up to the petroleum authority holder to decide how it will carry out the consultation, provided it discharges its obligations to use reasonable endeavours to consult the owner or occupier.

It goes without saying that a tenure holder will not be able to unilaterally decide when and where it will meet with a land owner or occupier, as that would be subject to negotiation between the parties and it would never be reasonable for the tenure holder to do that.

COMPENSATION TO BE ADDRESSED PRIOR TO ENTRY TO LAND

A petroleum authority holder must not enter private land to carry out authorised activities unless–

• they have entered into a compensation agreement with each eligible claimant for the land;

• they have entered into a deferral agreement (which provides for a compensation agreement to be entered into subsequent to entry) with each eligible claimant for the land; or

• they or the eligible claimant have applied to the Land Court for a determination of the eligible claimant’s compensation entitlement. [s.536, P&G]

ENTRY NOTICES

A person must not enter private land to carry out an authorised activity for a petroleum authority unless the petroleum authority holder has given the owner and occupier of the land an entry notice at least 10 business days before the entry. [s.497, P&G]

The entry notice must state[section 499, P&G] –

• the land proposed to be entered;

• the period during which the land will be entered (which must not exceed 6 months for an authority to prospect or 1 year for a lease);

• the proposed activities to be carried out;

• when and where they are proposed to be carried out; and

• contact details for the petroleum authority holder or another person who is authorised to discuss the matters stated in the notice.

Failure to comply with this requirement is an offence for which the petroleum authority holder may be prosecuted. The maximum penalty is 500 penalty units ($50,000) for a person and 2500 penalty units ($250,000) for a company [s.497, P&G].

.

On the first occasion the petroleum authority holder proposes to enter the land, it must also give each owner and occupier of the land an entry at least two business days before the proposed entry that sets out [s.500B, P&G] -

• the proposed entry; and

• accurately, when and where the authorised activities are proposed to be carried out.

A failure to comply with this requirement does not prevent the authorised activities from being carried out on the land [s.500C, P&G]. However, it is an offence for which a petroleum authority holder may be prosecuted. The maximum penalty is 50 penalty units ($5,000) for a person and 250 penalty units ($25,000) for a company [s.500B, P&G].

COMPENSATION PAYABLE TO LAND OWNER/OCCUPIER

The petroleum authority holder is liable to compensate each owner or occupier of land for [s.531, P&G]-

• any compensatable effect that is caused by the authorised activities (or activities represented as authorised activities) for the tenure; and

• consequential damages incurred because of a compensatable effect caused by authorised activities for the tenure.

“Compensatable effect” means all or any of the following -

• deprivation of possession of its surface;

• diminution of its value;

• diminution of the use made, or that may be made, of the land or any improvement on it;

• severance of any part of the land from other parts of the land or from other land that the eligible claimant owns;

• any cost or loss arising from the carrying out of activities under the petroleum authority on the land.