The Walker Report on Land Access and NSW Government Response

The contentious issue of access to privately owned land by exploration permit holders has been the subject of a recent review in New South Wales.  The State Government engaged Bret Walker SC to conduct a review of the land access arbitration processes under the Mining Act 1992 (NSW) and the Petroleum (Onshore) Act 1991 (NSW) and make recommendations in relation to 13 specific questions about the effectiveness of current arrangements.  At present, both the Mining Act 1992 and the Petroleum (Onshore) Act 1991 provide that where a land owner and exploration permit holder cannot reach agreement on the terms of access for the permit holder, the access conditions are determined by an arbitrator.  The Walker Review made 31 recommendations for improvements that could be made to the current scheme relating in particular to:

• creating greater confidence in the system through measures such as improving transparency, accountability and consistency in appointment of arbitrators, requirements for arbitrators to have minimum qualifications and undertake ongoing professional development, and public disclosure of interests and qualifications of arbitrators;
• better public information being made available through guidance policies issued by the relevant government department, public registers of employment and financial dealings of arbitrators, and publication of arbitrated decisions and agreements;
• distributing the costs of participating in the process by requiring explorers to pay the costs of land owners up to capped amounts; and
• improving certainty by limiting the process to 3 months with fixed stages and timeframes such as: the explorer providing a draft access agreement up front which includes a conclusive baseline report of conditions on the property (often referred to as a dilapidation report); the land owner identifying significant improvements with a process in place to resolve any disputes about these improvements; and a defined process to reach an arbitrated outcome if agreement cannot be reached.

The Government has responded positively to all of the recommendations with policy and legislative measures and estimated timeframes for completion.  The recommendations relating to appointment and qualification of arbitrators are in the process of being implemented, with a call for applications from appropriately qualified and experienced persons currently open.  The policy measures relating to more publicly available information are likely to be implemented throughout the remainder of 2014, while any changes to laws or regulations are timetabled for 2015.