Coal seam gas (CSG) explorers must hold a title and enter into a written access arrangement with landholders before entering a property.

Landholders' rights

While landholders in NSW own the surface land of their properties, most resources such as CSG that exist below the earth's surface belong to the state of NSW. The production of these resources in NSW contributes royalties, economic benefits and energy security for the people of NSW.

A titleholder must enter into a written access arrangement with a landholder before any activities may commence. As part of this process, the titleholder must also consult with the landholder over where drilling will occur, provide a plan and description of the land they wish to access and a description of the sort of exploration methods they intend to use.

On 1 December 2016, reforms to the land access arbitration framework were introduced with the commencement of the Mining and Petroleum Legislation Amendment (Land Access Arbitration) Act 2015. This legislation introduced a range of improvements in line with recommendations of the 2014 Walker Report. Read more about the Walker Report and the land access reforms.

Under these reforms, an exploration code of practice was introduced for holders of petroleum prospecting titles in line with section 69DA of the Petroleum (Onshore)Act 1991 and clause 16A of the Petroleum (Onshore) Regulation 2016. This code contains mandatory provisions to which petroleum prospectors must adhere. It also outlines best practice guidance to assist in negotiating land access arrangements.

The reforms also extended the requirement for petroleum producers (not just petroleum explorers) to obtain an access arrangement with a landholder prior to entering the land. That access arrangement must specify the compensation that is payable to the landholder (section 69D(2)).

Access arrangements may also include provisions to minimise any loss or interference and landholders are entitled to compensation for loss caused, or likely to be caused, as a result of the activities on their land.  Compensation need not always be monetary in nature. Often what is provided in-kind by the titleholder may be worth more than the actual monetary compensation. For example, the titleholder might agree to upgrade a farm road, renew a fence or replace a gate with a cattle grid.

Read the Exploration Code of Practice: Petroleum Land Access.

Access to land for exploration

Thousands of access arrangements are successfully negotiated between titleholders and landholders for their mutual benefit.  Very few progress to mediation, arbitration and to the courts. However, in the instance parties can’t reach agreement through private negotiations, the NSW legislative framework sets out a clear pathway to help landholders and titleholders agree on the terms and conditions for access to land.

Under NSW law, negotiation between a titleholder and a landholder is the first step in making a land access arrangement. Mediation is required if parties are unable to reach an agreement. If mediations are unsuccessful, parties proceed to arbitration where an arbitrator will make a determination. Mediation and arbitration are less formal and less costly means of reaching an agreement.

Arbitrators may be privately appointed if agreed by both parties, or may otherwise be appointed by the Secretary of the Department of Industry, Skills and Regional Development from the Minister’s panel of arbitrators. Determinations may be appealed in the Land and Environment Court.

Landholders and titleholders are required under legislation to act in good faith throughout this process. The Land Access Arbitration Procedure provides more information on mediation and arbitration. Read more about the NSW land access arbitration framework.

Land and Water Commissioner

The NSW Government has appointed a Land and Water Commissioner to provide independent advice to landholders, resource companies, the community and government on mining and coal seam gas activities in the state.

The commissioner’s role involves:

  • listening to community issues and facilitating greater consultation between government, community and industry
  • being a key source of information and guidance to assist landholders and communities to better understand the way that mining and gas activities are approved and regulated in NSW, and how they can be involved in the process
  • accessing the resources of all NSW Government agencies, including the NSW Chief Scientist and Engineer, as well as other relevant bodies to seek advice on matters raised with the commissioner.

The Commissioner reports directly to the Secretary, NSW Department of Industry.

Agreed Principles of Land Access

A landmark agreement on land access for CSG operations in NSW was signed on the 28 March 2014.

The Agreed Principles of Land Access was signed by gas companies Santos and AGL, and landholder representatives NSW Farmers, Cotton Australia and the NSW Irrigators Council at a signing ceremony at NSW Parliament House. In September 2015, the Country Women’s Association and Dairy Connect became signatories to the Agreed Principles of Land Access.

All parties have agreed to the following principles:

  • Any landholder must be allowed to freely express their views on the type of drilling operations that should or should not take place on their land without criticism, pressure, harassment or intimidation. Any landholder is at liberty to say "yes" or "no" to the conduct of operation on their land.
  • Santos and AGL confirm that they will respect the landholder's wishes and not enter onto a landholder's property to conduct drilling operations where that landholder has clearly expressed the view that operations on their property would be unwelcome.
  • The parties will uphold the landholder's decision to allow access for drilling operations and not support attempts by third party groups to interfere with any agreed operations. The parties will condemn bullying, harassment and intimidation in relation to agreed drilling operations.
For further information
Land and Water Commissioner
Phone:
02 6391 3429
Fax:
02 6391 3551
commissioner@landandwater.nsw.gov.au
Postal:
Locked Bag 21 Orange NSW 2800