Recent developments in Queensland, Western Australia and Victoria

Legislative amendments and new codes and guidelines have been introduced in states across the country. The focus is on developing renewable energy production and supporting existing energy infrastructure. In this article, we outline some recent developments in Queensland, Western Australia and Victoria.

The Federal Budget: A Future Made in Australia

On Tuesday May 14, Dr Chalmers delivered the Federal Budget for 2025. A central part of the budget was the Future Made in Australia initiative which committed $22.7 billion over the next decade to attract investment and propel Australia as a renewable energy superpower globally. This is aimed at accelerating investment in priority industries that include critical minerals processing, renewable hydrogen, low carbon liquid fuels, green metals (which include some commodities produced using low-carbon technologies) and the manufacturing of clean energy technologies.

Rehabilitation of the Latrobe Valley Coal Mines: Integrating Regulation of Mine Rehabilitaion and Planning for Land and Water Use

Professor Alex Gardner, University of Western Australia Law School
Elda Poletti, Mining Law Consultant
Lauren Downes, Research Associate, University of Western Australia Law School
Laura Hamblin, Research Associate, University of Western Australia Law School

The research presented in this article was supported by CRC TiME. The content of the article is a revised version of a case study undertaken for the project “Mapping the regulatory framework of mine closure”. The support of the Australian Government through the Cooperative Research Centre Program is acknowledged. The article is current to March 2024.

This case study considers the challenges of implementing effective regulatory processes for rehabilitation of open cut coal mines in one of the world’s largest brown coal reserves, the Latrobe Valley, Victoria. The Latrobe Valley coal fired energy industry is experiencing a transition hastened by a serious coal mine fire in 2014 and climate change. The Latrobe Valley mines and their associated power stations either have closed (Hazelwood 2017) or are scheduled to close (Yallourn 2028 and Loy Yang 2035) with final rehabilitation to follow. The case study demonstrates the leading role of the Mineral Resources (Sustainable Development) Act 1990 (Vic) in mine rehabilitation regulation. The MRSD Act was significantly reformed in 2019 to introduce important mine rehabilitation reforms and integrate mine rehabilitation regulation with land use and water use planning, all operating in the context of the Climate Change Act 2017 (Vic). The principal integrative instrument is the Latrobe Valley Regional Rehabilitation Strategy (2020, amended in October 2023). We suggest further research to improve the regulatory outcomes.

How Good is Queensland's Law Reform Commission Inquiry into Mining Lease Objections?

John Southalan
Barrister (WA Bar Association), Mediator (NMAS), Adjunct / Clinical Professor (UWA, Murdoch, Curtin)

This article is written in personal capacity and does not represent the views of any organisation with which the author is associated. Grateful thanks for comments and feedback on earlier drafts from Prof Deanna Kemp, Julia Keenan, Prof Alex Gardner, Rodger Barnes and others who are not identified. Any errors remain the author’s responsibility.

The Queensland Law Reform Commission is reviewing the processes to decide contested applications for mining leases and associated environmental authorities in Queensland. The Commission has published several background papers, providing material and analysis of much broader use that just Queensland law reform. One paper explores key drivers shaping mining’s future: decarbonisation and critical minerals’ demand; rising focus on environmental, social and governance principles; and increasing recognition and respect for First Nations’ rights. Another paper summarises (and compares) the objections processes for mining leases and associated environmental authorities in six jurisdictions: Queensland, Western Australia, New South Wales, Northern Territory, British Columbia (Canada), and South Africa. The Commission’s papers provide excellent summaries and material for anyone wanting to understand mining law and policy processes – what currently exists in these significant mining jurisdictions, and what the future may hold.

Recent updates from Malaysia and Southeast Asia

Acknowledging the need in its country, the Government of Malaysia has recently introduced several new programs that aim to improve low carbon and renewable energy generation in the country. 

Legislative updates in Queensland and Western Australia

The Governments in Queensland and Western Australia have recently released several consultation papers, reports and proposed legislation that impact the resources sector.

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.

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Chilean Committee Launch Event

On 8^th November in Chile (9^th Nov in Australia), the Chilean Committee of the Energy and Resources Law Association was officially launched. The event took place at the office of the Sustainable Minerals Institute International Centre of Excellence Chile (SMI-ICE-Chile). The event started with opening words by the Mr. Ambassador of Australia in Chile, His Excellency Todd Mercer, the Executive Director of the SMI-ICE-Chile, Doug Aitken, and Gordon Bunyan , Executive Director of the Energy & Resources Law Association.

Outline of new state legislation

New legislation has been proposed across several states in Australia. These cover a range of issues including climate change and the development of hydrogen and renewable energy industries. In this article we outline the latest changes in New South Wales, South Australia, Queensland and the Northern Territory.