Mining and gas explorers will be forced to pay the cost of
arbitration with landholders in the event of access disputes.
This was one of 32 recommendations made by Bret Walker SC,
who conducted a government-commissioned review entitled Examination of the Land
Access Arbitration Framework.
All recommendations in the Walker Review were accepted by the
state government, according to Resources and Energy minister Anthony Roberts.
‘‘Explorers will now bear all costs
associated with arbitration, set and capped by an independent expert,’’ Roberts
‘‘Timeframes will also be capped, providing greater certainty for
landholders and industry.’’
Recommendation for amendments to the Mining Act 1992 and the Petroleum
(Onshore) Act 1991 will be introduced to the NSW parliament during 2015.
Amendments to the acts will ensure that landholders are
entitled to have legal costs paid by the explorer; for time spent negotiating
and arbitrating (up to a capped amount); and for the costs of experts that are
engaged by landholders.
The current compensation provisions do not allow land owners
to recoup the costs of negotiating or arbitrating an access arrangement or
initial legal costs incurred.
The Walker Report also recommends that mediators in the
arbitration process may not be arbitrators, except with permission from both
The report details guidelines for selection of arbitrators
and mediators, and seeks legislation for land access arrangements to be
negotiated in good faith.
Walker also suggested that the government consider a number
of issues that were outside the scope of the report.
These include landholders accessing security deposits or the
creation of a landholder rehabilitation fund in the event of an explorer
causing damage; whether an exploration licence should be terminated if an
access arrangement was breached; issues of fatalities associated with living
near mining, particularly coal seam gas and unconventional gas drilling; crown
ownership of resources and whether the Crown should continue to own them after extraction;
the scope of the definition of prospecting under the Mining Act and whether it
should be amended to include environmental assessments to avoid companies
having to enter into an access arrangement and obtain an s252 permit.