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. 

Recent regulatory updates across Australia

This article provides an overview of developments in the industry over the past couple of months that have occurred in several states across Australia.   

SANTOS V TIPAKALIPPA: JUDICIAL GUIDANCE ON THE REQUIREMENTS FOR OFFSHORE PETROLEUM EP CONSULTATION

In the Santos v Tipakalippa decision, the Full Federal Court has given guidance to offshore petroleum titleholders in respect of the consultation obligations that they need to satisfy in order to obtain NOPSEMA’s acceptance of environment plans that they submit for the purposes of conducting their respective petroleum activities. The Full Federal Court’s decision may, however, have wider impacts, including on the consultation that may be required to be undertaken by a project proponent under the Commonwealth Offshore Electricity Infrastructure legislation in order to develop an offshore renewable energy project.

SHARMA v MINISTER FOR THE ENVIRONMENT

More than a year on from the overturning of Sharma v Minister for the Environment by the Full Federal Court, Justice Bromberg’s original judgment continues to occupy the minds of the Australian legal community. Although the current position in Australia is that the Minister owes no duty of care in such cases, the Full Court of the Federal Court of Australia stressed that the expert evidence regarding the threat of climate change and global warming was largely uncontested, perhaps foreshadowing the cornerstone of cases to come. Globally, climate litigation is showing no signs of slowing down. As outlined below, despite numerous defeats in various jurisdictions, climate litigants have secured a small number of hard-won victories, fuelling the pipeline.

FORREST AND FORREST PTY LTD AND MINISTER FOR ABORIGINAL AFFAIRS [2023] WASAT 28

Western Australia’s State Administrative Tribunal (SAT) has rejected a review, by Forrest & Forrest Pty Ltd, against the refusal of consent to impact an Aboriginal site in constructing weirs across the Ashburton River. A unanimous three-member panel published its decision in April 2023. SAT’s decision and reasoning has direct significance and use for anyone involved in processes for a s 18 consent under the Aboriginal Heritage Act 1972 and broader relevance for the law around protection of Aboriginal heritage in Western Australia. With the WA Government announcing the reversal of recent statutory changes and a return to the 1972 legislation, SAT’s decision has increased relevance.

Vale Graeme Neate