Simon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | Hansard source

The coalition will most definitely be opposing this amendment of the Greens. I inform the Senate that we do so because the words of Senator Waters and Senator Milne, in suggesting that this amendment does not in any way change ownership, ring quite hollow when you look at the actual wording of the amendment. The amendment states:

The Minister must not approve, for the purposes of the controlling provision, the taking of the action, unless the Minister is satisfied that any owner, and any occupier, of land that would be likely to be affected by the taking of the action:

(a) has obtained independent legal advice; and

(b) has obtained independent advice in relation to the likely impacts of the taking of the action; and

(c) has freely given informed consent in relation to the taking of the action.

This amendment would have two consequences that obviously spring to mind. The first is that an owner of the immediate property in question would be able to block access indefinitely, with a blank cheque, for as long as they want, until effectively they have extracted the price that they want for such access. That is what the effect would be. Unlike the historical provisions that I will turn to in a second in relation to how state laws around access have been governed for a long time, this is a blank cheque to block action with no automatic recourse to mediation, no opportunity for any type of fairness of recognition that the states' ownership of the minerals or the resource or the petroleum resource comes into play in the consideration of things. By giving the title owner, the landowner, that blank cheque to block access, you effectively give them a blank cheque to extract whatever price they want for the minerals that are in the ground.

Secondly, I highlight the fact that this amendment talks about any owner and any occupier of land that 'would be likely to be affected' by the taking of action. Those are important words, because we are addressing in the totality of the bill before the Senate amendments that relate to water resources and the protection of those water resources. Fundamental to the recognition that we must protect those water resources is a recognition that those water resources stretch across title boundaries into adjoining properties. The coalition acknowledges there must be appropriate science and research for the protection of those resources, but this amendment would lead to the possibility that not just the owner of the land on which the exploration or development activity is taking place would have to give permission but potentially adjoining landowners would also have to give permission. You could have a situation where the landowner in questioning extracts the price they want and are happy for it to go ahead, but adjoining landowners find themselves with the opportunity to block access until they extract a price that they are happy with.

This flies in the face of the entire understanding of land-use management in the history of the Australian Federation. Throughout that history it has been recognised that land-use management decisions lie with state governments. That is the fundamental understanding that has existed. The words 'lock the gate' that are thrown around emotively at times—and I know they have been used as a campaign slogan in this very emotive debate—are a demonstration that this is about a desire to stop development. Senator Milne talked about the fact that the coal has to stay in the ground for climate change reasons—a demonstration that the Greens' involvement in this space is driven not by genuine concerns for landowners, farmers or those who might be affected by these developments but by broader political objectives of the Greens political party.

As I said, this goes against the longstanding practice of states in their exclusive regulation of this area. Those longstanding practices have evolved over the years in recognising that there should be some firm processes in place for how landowners give consent and how such consent is given fairly. It tries to balance, at the state level around Australia, a recognition that, whilst the resources in the ground may belong to the state, there is an issue around the landowners and that landowners need to be reasonably respected and treated in a fair way for the giving of consent.

In New South Wales, such things date back to before the Mining Act 1906, which dealt not just with gold and other minerals but also with mineral oils or petroleum in outlining the types of provisions for obtaining landholder consent. The Mining Act 1906 was updated in relation to petroleum and gaseous products in 1955 with the passage of the Petroleum Act 1955 in New South Wales. Section 50 of that act contains the following provisions:

50. The holder of any licence or lease under this Act shall not carry out any prospecting or mining operations or erect any works on the surface of any land which is under cultivation unless the owner or the owner and occupier, as the case may be, of such land has or have consented thereto:

Provided that—

(a) the Minister may, if he considers that the circumstances so warrant, define an area of the prospecting or mining operations may be carried out or works may be erected, and may specify the nature of the operations to be carried out or the works to be erected, but before any such operations are commenced or works are erected, the warden shall assess the amount to be paid as compensation for any loss of or damage to any crop on such cultivated land;

(b) cultivation for the growth and spread of pasture grasses shall not be deemed to be cultivation within the meaning of this section unless, in the opinion of the Minister, the circumstances so warrant; and

(c) in the case of dispute as to whether land is or is not under cultivation within the meaning of this section the Minister's decision thereon shall be final.

So, a process has long been established and was set out there in the Petroleum Act of 1955 at the New South Wales level. That provided for the fundamental decision that owner or occupier should provide consent but, equally, a mediation process was in place there where the minister provide consent if it could be agreed to and there should be independent assessment of appropriate compensation to be paid.

In 1991 the Petroleum Onshore Act was passed in New South Wales and replaced the 1955 act, but it contained in s. 71 an almost identical provision in relation to land under cultivation and similar activities. In 1994 there were amendments that removed the requirement for landholder consent in relation to exploration licences and assessment leases but not in relation to production leases. These are important distinctions—and distinctions that I will be moving further amendments in relation to—that clearly separate the treatment of exploration or assessment activities from production activities.

The amendments also inserted a new part 4(a), with similar land access provisions to those introduced into the Mining Act of 1989. So, we had a new part 4(a) of the Petroleum Onshore Act 1991 that provided that the holder of a prospecting title may not carry out prospecting operations on any private land otherwise than in accordance with an access agreement (a) agreed between the title holder and the owner and occupier of the land or (b) determined by an arbiter. Since 1994 these provisions have been slightly amended but essentially remain in force in New South Wales, as do similar provisions in other jurisdictions.

When the Greens come to this place and others go to the other place to argue that somehow there is not a process in place that respects the rights of landholders, that is simply a falsehood. There are laws in place—long-established laws, century-old laws at a state level—that very clearly respect the rights of landholders whilst also respecting the right of the state to access the minerals contained within the lands. That recognises that those minerals are an important asset of the people of the state, not just of the individual landowner. Those laws have sat there for 100-plus years in Australian history, and longer if you go to the individual jurisdictions and longer still in places overseas. Such laws recognise that appropriate processes which ideally cover an access arrangement between the licensed company, which is developing the mineral resource and extracting the mineral resources, and the landowner. If that cannot be achieved—if the landowner cannot reach reasonable terms with the licence owner—then the state steps in via arbitration and establishes what those fair terms should be.

The Greens' amendment would simply turn this long-established practice at a state level completely on its head and suddenly there would be a situation where not just immediate landowners but other landowners on surrounding properties would have a complete right of veto and the federal environment minister would sit above all of the different ministers and authorities at a state level to have the final yea or nay say, with no process in the Greens amendment for how disputes might be arbitrated.

We on the coalition side recognise that there is a genuine concern that exists in many communities about how provisions such as those I have outlined are applied in the states. There is a real concern to make sure they are applied transparently. There are genuine concerns too about the way governments, like the New South Wales Labor government, may have given out some mining leases. That reeks of corruption and no doubt will be proven to be acts of corruption. But that does not mean that for the entire Commonwealth of Australia we should turn a century-plus of established law-making on its head. That would potentially shut down the appropriate management of mineral resources around Australia and, in doing so, shut down exploration, assessment and production activities that may likely be undertaken in the future. Essentially, that would be the outcome of the amendment proposed by the Greens.

I trust that the government will equally be opposing this and will oppose it with a similar concern—not just for its effects on an industry that is important to Australia and not just to trample on the federation and the rights of states that this amendment undertakes but to recognise that there is an appropriate balance to be achieved here. Such a balance should ensure that landholders are rightly compensated where access to their land is granted as part of a mineral or petroleum licence and that communities rightly receive a level of support and recognition for the way mining or petroleum development impacts on those communities. The balance should also make sure the people of a state receive the benefits of the utilisation of the resources of that state. They are the things that need to be balanced. They are the things that should be balanced in state laws, not through some blunt, crude amendment such as this one proposed by the Greens today, which I trust the chamber will rightly reject.