Related Articles

• 
  Land Access Agreements for Petroleum Exploration in the Northern Territory: the Tanumbirini Station and Beetaloo Station Decisions

  Bradly Torgan
  BA (Duke), MRP (UNC), JD (UNC), MEL (Syd)
  Special Counsel, Ward Keller, Darwin NT

  
  The Tanumbirini Station and Beetaloo Station decisions, first before the Northern Territory Civil and Administrative Tribunal and then on appeal to the Northern Territory Supreme Court, represent the first decisions under the land access agreement provisions of the Petroleum Regulations 2020 (NT). They establish jurisdictional boundaries under which the Tribunal can determine an access agreement, guidance on when the Tribunal will exercise its discretion to do so, and guidance on the terms of an access agreement. The decisions also provide a cautionary tale to landowners demanding compensation prospectively for anything other than the drilling of a well. The parties may agree to comprehensive prospective compensation in principle, but if negotiations fail and the matter goes to litigation the landowner stands to get nothing beyond compensation for the drilling of a well.

  1. Introduction

  The Petroleum Regulations 2020 (NT) (the Regulations) came into force on 1 January 2021. Amongst the changes from the Petroleum Regulations 1994 (NT) that the Regulations replaced was the requirement for a land access agreement (access agreement) to undertake exploration activities:[i] a petroleum interest holder could no longer commence regulated operations on a particular area of land without having an access agreement in place with the landowner or occupier of the land holding a registered interest, referred to in the Regulations as the designated person.[ii] In the Northern Territory, the designated person is typically a pastoral lessee under the Pastoral Land Act 1992 (NT). While the Petroleum Act 1984 (NT) (the Act) provides for compensation to pastoralists or other owner/occupiers for any damages or deprivation of use of the land caused by the interest holder,[iii] access agreement guidelines prior to the Regulations had no force of law.

  The requirement that an access agreement be in place prior to exploration commencing arose from a recommendation of the 2018 Final Report of the Scientific Inquiry into Hydraulic Fracturing in the Northern Territory (Fracking Inquiry),[iv] which the Northern Territory government had commissioned and whose recommendations it promised to implement in lifting a moratorium on hydraulic fracturing that had been in place since 2016. The recommendation was designed to level what was seen as an unequal negotiating structure between pastoralists and petroleum companies that disadvantaged the pastoralists. The enactment of the access agreement provisions brought the Territory more into line with other jurisdictions for which agreements are required before most petroleum exploration activities can occur.[v]

  The Regulations contain twenty-five standard minimum protections (SMPs) that every access agreement is required to address.[vi] They include the minimum amount of compensation payable for the drilling of a well on the land,[vii] sometimes referred to as SMP 12, and a statement of whether it is anticipated that any of the exploration and related activities carried out on the land will lead to a decrease in market value of the land. If that question is answered in the affirmative, the agreement must provide a preliminary assessment of the amount of the decrease.[viii] This statement and assessment is sometimes referred to as SMP 13. What the SMPs do not mandate, however, is determinations of prospective compensation payable for anything other than a minimum amount for the drilling of a well.

  The Regulations provide a multi-step negotiations process, including alternative dispute resolution.[ix] If negotiations fail, the interest holder can apply to the Northern Territory Civil and Administrative Tribunal (Tribunal) for determination of an access agreement.[x] Judicial review by the Northern Territory Supreme Court may be sought on questions of law for any Tribunal decision determining or refusing to determine an access agreement.[xi]

  While most access agreements in the Northern Territory are the result of successful negotiations between the interest holder and the designated person, negotiations in two instances failed, with the interest holder seeking and securing determinations of access agreements by the Tribunal. The decisions in access agreement disputes before the Tribunal, Sweetpea Petroleum Pty Ltd v Rallen Australia Pty Ltd (Tanumbirini)[xii] and Sweetpea Petroleum Pty Ltd v Yarabala Pty Ltd & BB Barkly Pty Ltd (Beetaloo),[xiii] dated 7 February 2022, addressed access over two adjacent pastoral leaseholds in the gas rich Beetaloo sub-basin, Tanumbirini Station and Beetaloo Station. The decisions were similar, but consequential orders in Tanumbirini resulted in the determination of an access agreement over Tanumbirini Station,[xiv] while the decision in Beetaloo remained interlocutory. The Tanumbirini determination was upheld by the Northern Territory Supreme Court in Rallen Australia Pty Ltd v Sweetpea Petroleum Pty Ltd (Tanumbirini Appeal),[xv] issued on 20 April 2023. A ruling upholding the Beetaloo decision, Yarabala Pty Ltd and BB Barkly Pty Ltd v Sweetpea Petroleum Pty Ltd (Beetaloo Appeal),[xvi] followed on 9 June 2023.

  This article first analyses the Tanumbirini decision because of the similarities between it and the Beetaloo decision, although differences between the two are noted, before turning to the Tanumbirini Appeal. The article then reviews major differences between the Tanumbirini Appeal and Beetaloo Appeal before discussing the impacts of the decisions.

   

  ---

  [i]      Petroleum Regulations 2020 (NT), reg 12(1).

  [ii]      Above n 1, Regulations, regs 3, 13(1)(b).

  [iii]     Petroleum Act 1984 (NT) (28/11/2022–22/06/2023), s 82(1).

  [iv]     Hon Justice Rachel Pepper (Chair), Final Report: Scientific Inquiry into Hydraulic Fracturing in the Northern Territory (NT Government, 2018), Rec 14.6, 394-395.

  [v]     See, e.g., Petroleum and Geothermal Energy Resources Act 1967 (WA) (PGER Act), s 16; Petroleum (Onshore) Act 1991 (NSW) (PO Act), s 69C; Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) (MERCP Act), s 43.

  [vi]     Above n 1, Regulations, reg 14, sch 2.

  [vii]    Above n 1, Regulations, reg 14, sch 2, cl 12(1).

  [viii]    Above n 1, Regulations, reg 14, sch 2, cl 13(1).

  [ix]     Above n 1, Regulations, regs 14, 25-26.

  [x]     Above n 1, Regulations regs 14, 29.

  [xi]     Northern Territory Civil and Administrative Tribunal Act 2014 (NT), s 141(1).

  [xii]    Sweetpea Petroleum Pty Ltd v Rallen Australia Pty Ltd [2022] NTCAT 1.

  [xiii]    Sweetpea Petroleum Pty Ltd v Yarabala Pty Ltd & BB Barkly Pty Ltd, NTCAT File no 2021-02699-CT (7 February 2022). As of the date of the writing of this article, Beetaloo has not been published.

  [xiv]   Above n 12, [2022] NTCAT 1,Tanumbirini, n 1.

  [xv]    Rallen Australia Pty Ltd v Sweetpea Petroleum Pty Ltd [2023] NTSC 36.

  [xvi]   Yarabala Pty Ltd and BB Barkly Pty Ltd v Sweetpea Petroleum Pty Ltd [2023] NTSC 50.

• 
  What to expect from Brazil’s new government

  On October 30, Brazil elected Luis Inaclo Lula da Silva (Lula) to be its new President. Lula will take over from President Jair Bolsonaro on 1 January 2023. During his campaign, Lula hinted at some reforms that would potentially impact the energy and mining sector, particularly in relation to his environmental and climate agenda.

• 
  What the sector can expect under a Trump presidency

  On November 5, Trump was re-elected President of the United States. His term will commence in January 2025, but he has already begun putting in place plans for his administration. It is expected that Trump will make significant changes to several areas of policy that impact the energy and resources sector.

• 
  What to expect from the new Australian government?

  In May, the Australian Labor Party (ALP) achieved a majority government while the Greens and independents hold the balance of power in the Senate. This signals a new era for Australia, with voters clearly putting climate change high on the agenda for the next three years.

• 
  COMMUNITY LEGAL RIGHTS IN MINE CLOSURE PLANNING; A COMPARATIVE ANALYSIS OF THREE AUSTRALIAN STATES

  Professor Alex Gardner, University of Western Australia Law School, and Laura Hamblin, formerly research associate at the UWA Law School, 2021

   

  Why does the Mining Act 1978 (WA) not provide secure legal rights for community consultation in relation to mining lease proposals and mine closure plans? Addressing this question presents an important theme for this comparative review of some core features of the regulatory frameworks for mine closure in three Australian States. It also raises important questions for future legal research.

  Western Australia, Queensland and Victoria have prominent but vastly different, and thus uniquely significant, mining industries. Western Australia’s mining industry has a long history of large and smaller scale mining of a diverse range of minerals by various methods that pose significant mine rehabilitation challenges.[i] Queensland’s mining industry is similarly large and diverse, dominated by export coal production, and planning future minerals development in a decarbonising world.[ii] Victoria has a smaller mining industry with a large historical legacy dominated by a coal mining industry for domestic electricity generation in the Latrobe Valley, which is closing as the State actively transitions to renewable power sources.[iii] These States also have significant differences in the regulation of their mining industries.

  What all three States do have in common is the significance of their mining industries to both the State economy and the communities who depend on or live near mining operations. Importantly, all three States are confronting large legal and regulatory challenges in managing mine rehabilitation and closure. The key to addressing these challenges is effective mine closure planning: the closure of a mine site has ripple effects that are not merely environmental and economic, but social and cultural too.

  The initial approval of a mine closure plan occurs before any mining has begun and, with the life cycle of a mine often spanning decades, regulatory bodies are approving hypothetical closure scenarios, potentially subject to vast changes. Regulatory bodies may then seek to enforce closure requirements enshrined in a plan that may wane in relevance as mining operations progress, the updating of which may depend on the miner. Yet remedying the regulatory system so that it creates adaptable but consistently effective mine closure outcomes for affected communities still begins at planning. Although that planning is an iterative process across the life of the mine, it is very important at the initial stage of approval. Recent legislative reforms in all three States are adding to the regulatory rigour and adaptability of mine closure planning, though there are very different legal requirements for community consultation. This article aims to explain and assess the regulatory reforms by undertaking a comparative analysis of mine closure planning across Western Australia, Queensland and Victoria, with a focus on the initial approval stage and how stakeholders and communities are brought into that process. The facilitation of continuous and comprehensive community engagement is critical to ensuring that mine closure planning accounts for environmental, economic, social, cultural and safety outcomes after mine closure, but it has not been possible to consider here the process of ongoing mine closure planning, especially for amending mine closure plans and determining satisfaction of mine closure plans leading to resource tenure relinquishment.[iv]

  The article begins by considering core concepts of mine closure planning and the regulatory goals that inform it. It then provides a comparative overview of each State’s mine closure planning requirements under the mineral resources, environmental and land use planning laws and draws out some of the different regulatory structures and processes for mine closure within each State. The third step in our analysis compares the ways in which those laws provide for local communities’ participation in mine closure planning, with specific attention to whether the regulatory provisions create legally enforceable rights for effective community engagement. The article concludes with a summary of the key points from the discussion of three themes in our analysis: (i) the importance of clear definitions of core concepts and key goals, (ii) mine closure planning as an essential part of a mining proposal, and (iii) the legal definition of community engagement and consultation rights.

  Mine closure planning and implementation is necessarily influenced by many other spheres of law including taxation law, investment law, water law, and the rights of traditional owners, to name a few. A potentially directly relevant Commonwealth law is the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which may require environmental impact assessment of a mining proposal and closure plan and lead to approval conditions supplementing State requirements.[v] Whilst acknowledging the importance of these adjacent spheres of the regulatory frameworks for effective mine closure planning, this article does not attempt to address their impact. In particular, the rights of Traditional Custodians are a crucial part of mine closure planning that are only briefly noted here and that would benefit from future research.

   

  ---

  1. WA Department of Mines, Industry Regulation and Safety, Major Commodities Review 2022-23”.

  2. Qld Government, Department of Resources, Queensland Resources Industry Development Plan, June 022.

  3. Vic Government, Department of Jobs, Precincts and Regions, Latrobe Valley Regional Rehabilitation Strategy.

  4. See L Hamblin, A Gardner, Y Haigh, Mapping the Regulatory Framework of Mine Closure, May 2022, CRC TiME, for a broader exploration of the full life cycle of mine closure regulation.

  5. In Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111; (2013) 214 FCR 301, [144], [227]-[230], referring to the range of approval conditions, which included mine closure. In setting conditions under the EPBC Act, the Commonwealth Minister must consider any relevant conditions under State or Territory law: at [80] citing Lansen v Minister for Environment and Heritage (2008) 174 FCR 14.
• 
  What the Federal budget and election mean for the sector

  The Federal election has now been set for May 21st and follows the recent 2022/23 Federal Budget announcement and Opposition’s reply. 

  The Liberal party’s budget positions the energy and resources sector for growth with $2.4 billion  allocated to the industry, energy and emissions reduction portfolio. 

  The budget included an investment of $1.3 billion to maintain energy security and reduce the pressure on prices while encouraging emissions reduction.