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

2  The Tribunal Decision in Tanumbirini

2.1     Jurisdictional Issues and Discretion to Act

In determining an access agreement favourable to the exploration company Applicant, the Tribunal began by addressing several jurisdictional matters. The first major issue was whether it had authority to determine a prospective compensation scheme for deprivation of use and loss of enjoyment of land. The second was whether it had jurisdiction at all to determine a land access agreement when (1) the activities authorised by the access agreement would result in interference with the lawful activities of the Respondent, and (2) all underlying entitlements necessary to begin exploration were not yet in place.

In addressing the first issue, the Tribunal treated the Respondent's submission as a claim for compensation. It then looked to the SMPs themselves to determine if they enlivened jurisdiction to consider the claim. They did not. SMP 12 merely requires inclusion of the "minimum amount of compensation payable for the drilling of a well."[i] Further, SMP 13 does not require an access agreement to set out the amount of compensation for diminution of market value of the land. It only requires a preliminary assessment of the amount of a decrease, if any.[ii] Neither SMP creates a right to claim compensation at the point of determining the provisions of an access agreement.[iii] Sections 81 and 82A of the Act were also of no assistance to the Respondent. Those compensation provisions are retrospective in application. They do not establish jurisdiction for the Tribunal to hear a claim prospectively.[iv]

In regard to the interference claim, the Respondent relied on s 58(j) of the Act:[v]

An exploration permit or licence granted under this Act is subject to the conditions that the permittee or licensee shall…

(j)       conduct his operations and activities in relation to the exploration permit or licence area in such a way as to not interfere with the lawful rights or activities of any other person.

The Respondent claimed that the Applicant's operations would necessarily interfere with its lawful activities and accordingly could not be undertaken.[vi] Therefore, the Tribunal lacked jurisdiction to determine an access agreement that might allow those activities. Essentially, the Applicant asserted the primacy of s 58(j).

The Tribunal rejected this claim, noting that the legal framework clearly anticipated that the operations of an interest holder would impact on pastoral operations.[vii] Referring to both the objective of the Act to encourage exploration and Regulations requiring the Tribunal to balance interests in considering the creation of an access agreement, the Tribunal held that reading s 58(j) in the manner sought by the Respondent would make nonsense of the legal framework.[viii]

The Tribunal also held that the Applicant's lack of all necessary entitlements to begin regulated operations did not deprive it of jurisdiction to make a determination. Neither the Act nor the Regulations stipulate a particular order in which various approvals and consents, including an access agreement, are to be secured. The Tribunal took pains, however, to point out that an access agreement did not of itself confer a right to begin works. Approvals not yet granted would still be required before regulated operations contemplated by the access agreement could begin.[ix]

In light of its reasoning, the Tribunal not only held it had jurisdiction to determine an access agreement, but that it should exercise its discretion and determine the agreement's provisions.[x]

2.2     Scope of the Agreement

Having determined the extent of its jurisdiction regarding compensation and that it would exercise its discretion to determine an access agreement, the Tribunal turned its attention to the scope of the access agreement. Three issues weighed heaviest with regard to scope: the definition of certain water infrastructure, the method and manner of compensation under SMP 12 for the drilling of wells, and the method and manner of compensation for any diminution of the value of the affected property under SMP 13.

The water infrastructure issue involves the interpretation of s 111(1)(a)(iii) of the Act prohibiting certain operations:

(1)   Subject to this section, a permittee or licensee must not:

(a)   carry out operations, which would otherwise be permitted under this Act, on land that is…

(iii)   within a distance of 200 m of any artificial accumulation of water or any outlet from which water may be obtained.

The Applicant and the Respondent disagreed as to whether "artificial accumulation of water" included poly pipes that were part of a reticulated water system connecting water storage facilities to outlets such as tanks and troughs.[xi] While s 111(2) of the Act provides that operations can be carried out within 200 metres of an artificial accumulation of water with written consent of the landowner/occupier, the Respondent made it clear that no such consent would be forthcoming.[xii]

The context for the dispute was compensation. Forcing the Applicant to avoid coming within 200 m of poly pipes would prevent it from using many existing pastoral tracks. This, in turn, would require more extensive land clearing to create new tracks at considerable expense to the Applicant and potentially increase the diminution of market value identified in SMP 13, ultimately requiring greater compensation to the Respondent.[xiii] Implicit in this approach also appeared to be a strategy on the part of the Respondent to attempt to increase the costs of exploration to a point of financial and environmental infeasibility.

The Tribunal disagreed with the Respondent's position that poly pipes themselves are an artificial accumulation of water. They are instead a vehicle for distribution. "The poly pipes may well be integral and connected to the water system, but their function is to transport water to the point of accumulation being the tanks and troughs."[xiv] Accumulation, for purposes of s 111, refers to the entity, not the process.

Statutory and regulatory context were important to the Tribunal in its holding. An objective of the Act is to "encourage the undertaking of effective exploration for petroleum".[xv] Under Regulation 57(3), when considering a matter that relates to the creation of an access agreement, the Tribunal must ensure that the interest holder is not prevented from carrying out authorised exploration.[xvi] Accepting the Respondent's interpretation would have run contrary to both.

The Tribunal also refused to accept the Respondent's position that the compensation provision in SMP 12 and the provision of preliminary assessment of diminution of market value in SMP 13 required an access agreement to provide a method and manner of payment, including payment prior to the interest holder entering the property to begin operations. The SMPs do not create a power for the Tribunal to make an order of prospective compensation. Claims can only be made after a compensable event occurs. [xvii]

2.3     Terms of the Agreement

The Tribunal issued reasons for its decision in advance of issuing the terms of the access agreement, in large part because it was not satisfied by either party's approach at hearing to SMP 12, minimum compensation for drilling of a well, and would not issue what would have been an incomplete determination. Nevertheless, the Tribunal established parameters that expressly addressed three of the standard minimum protections to be addressed in the access agreement: SMP 12, SMP 13, and SMP 25 which covers the term of the access agreement.[xviii] It also laid out its general approach for analysing the remaining terms of an agreement.

The Tribunal did not provide an amount of compensation for a well when it issued its reasons because it felt it had no basis on which to determine minimum compensation as required by SMP 12. The Applicant suggested that the fees payable by the exploration company to the Northern Territory for its entitlements and approvals could serve as a proxy. The Tribunal rejected this as arbitrary.[xix]

The approach put forward by the Respondent was equally unsatisfactory to the Tribunal. The Respondent put forward a figure it asserted could be achieved through a commercial sale or lease of the underlying property. As the Tribunal noted, however, this is not compensation. The Tribunal's reasons provided that the purpose of compensation was to put a landowner back in the position he or she would have been in but for the drilling. The Tribunal, without saying as much, also looked askance at the Respondent’s compensation demand, an amount exceeding the value of the entire pastoral landholding.[xx]

The Tribunal instead ordered the parties to see if they could reach agreement on the minimum compensation for drilling a well having benefit of its reason and said it would schedule a directions hearing to deal with any remaining questions if they could not.[xxi] The parties ultimately negotiated an amount that was included in the access agreement determined by the Tribunal in consequential orders dated 4 May 2022.[xxii]

The SMP 12 issue was slightly different in Beetaloo. The Applicant had no plans to drill a well on Beetaloo Station under the exploration permit, so neither the Applicant nor the Respondent included SMP 12 compensation in their competing access agreements lodged with the Tribunal for consideration.[xxiii] The Tribunal, though, held that the Regulations required an access agreement to have such a clause, even if the parties agreed otherwise.[xxiv] As with the parties in Tanumbirini, the parties in Beetaloo were ordered to see if they could reach agreement on the minimum compensation for drilling of a well having benefit of its reason, with the Tribunal to schedule a directions hearing to address the issues if they could not. The issue remained unresolved at the time of the Beetaloo appeal.

The Tribunal in Tanumbirini was also faced with competing approaches to determine whether, preliminarily, there would be any diminution in the market value of the property. The Applicant's valuer looked at comparable pastoral sales over the previous decade to conclude that there was no evidence that the proposed activities will adversely affect value.[xxv] The Respondent put forward a piecemeal approach, "a summation of the components that represent the various heads of compensation [that is] more appropriate to use in the instance when the difference in the value of land before is of little discernible difference to the after valuation calculations."[xxvi]

The Tribunal preferred the Applicant's approach, rejecting assumptions on which the Respondent's valuer had relied. It also noted that the piecemeal approach seemed to be only in response to evidence that comparable sales showed diminution of value to be negligible.[xxvii]

Finally, on the issue of term, the Tribunal rejected the Respondent's desire for a fixed date. Instead, the Tribunal opted for the approach sought by the Applicant, a termination date tied to the expiration date of the exploration permit as may be varied from time to time. The Tribunal accepted the Applicant's position that the period of operations is inherently uncertain, necessitating a term tied to the term of the exploration permit.[xxviii]

While the Tribunal specifically addressed only SMPs 12, 13 and 25 in the reasons for decision on 7 February 2022, it did foreshadow how it would treat the remainder when it did determine the access agreement, provided three months later.

First, the Tribunal said it would not simply replicate all of the SMPs without more. Automatically defaulting to the SMPs in the event of failed negotiations would not amount to a proper balanced determination by the Tribunal and would put the landowner at an unfair disadvantage,^[xxix] contrary to the level playing field recommended by the Fracking Inquiry.^[xxx]

Second, the Tribunal would include clauses not addressed in the SMPs if agreed to by the parties.^[xxxi] Third, disputed clauses would be excluded if similar protections were provided elsewhere in the Act or the Regulations. In effect, the Tribunal would not include clauses in an access agreement that create private rights of action to enforce the Act or the Regulations beyond those provided in the SMPs or agreed to by the parties. The Tribunal would also make merit decisions on whether it believed provisions sought by either party were reasonable or otherwise necessary.^[xxxii]

When the access agreement determined by the Tribunal issued on 4 May 2022, the majority of the SMPs in the determination followed closely the SMPs in schedule 2 of the Regulations. The only relatively significant addition was to clause 11 of the access agreement addressing SMP 11, rehabilitation and remediation.[xxxiii] The determined access agreement also included a number of clauses beyond the SMPs, including general compensation provisions negotiated after the reasons for the decision had been issued and a clause requiring the interest holder to maintain public liability insurance. At the time of the Tanumbirini and Beetaloo decisions, maintaining insurance was a statutory requirement only at the production phase.^[xxxiv] 

3  The Supreme Court Decision in the Tanumbirini Appeal[xxxv]

3.1     Jurisdictional Issues and the Discretion to Act

The Appellant first asserted that the Tribunal misconstrued s 58(j) of the Act in several respects. Distilled to its core, however, the Appellant's assertion was that s 58(j) is paramount: the Tribunal is without authority to determine an access agreement that would allow exploration to "interfere with the lawful rights or activities of" the pastoralist. Further, the Appellant complained that the Tribunal erred by failing to address the Appellant's evidence that the activities proposed by the Explorer would, in fact, substantially interfere with the Appellant's lawful rights and activities, and in those circumstances should have exercised its discretion to not determine an access agreement.[xxxvi]

The Court rejected the assertions. First, the lawful rights and activities of the Appellant had to be assessed in the context of the exploration permit already granted. The Court noted, as an example, that the permit placed an obligation on the Appellant to not interfere with exploration activities conducted in accordance with the permit. To do so would be an offence under s 108A of the Act.[xxxvii] Second, the Court agreed with the reasoning of the Tribunal that the legal framework of the Act to encourage and promote petroleum exploration and production clearly anticipated that exploration operations would impact a landowner.[xxxviii] Third, an access agreement would not override s 58(j). It would be up to a future Court, however, to determine the proper interpretation and application of the section in the event there were allegations that exploration activities had resulted in a breach of the statutory condition.[xxxix]

In light of the dismissal of the s 58(j) claims, the Court held that it was not necessary for the Tribunal to make findings regarding the Appellant's evidence of anticipated adverse impacts.[xl]

Regarding prospective compensation, the Appellant contended that the Tribunal erred in determining that s 82A of the Act precluded it from exercising jurisdiction to determine whether or not an access agreement should include provisions for prospective compensation pursuant to s 81 of the Act.[xli] While the Court generally accepted the Appellant's proposition that likely damage could be demonstrated prospectively, it noted that normally one would not expect compensation to be assessed until after rehabilitation and remediation required by both the Act and Regulations had been undertaken.

The Appellant, though, asserted that Regulation 14(3)(c) permitted the Tribunal to include a provision in the access agreement that "reflects a standard that is greater than a standard specified in [the standard minimum protections]," conferring jurisdiction on the Tribunal to determine compensation prospectively.[xlii] The Court rejected this argument.

The only SMP addressing compensation is SMP 12, compensation for drilling. The Court noted SMP 12 was satisfied by the inclusion of an amount agreed to by the parties.[xliii] The parties also agreed to prospective compensation payable under s 81 of the Act, detailed in a schedule to the access agreement.[xliv] In such circumstances, the Court found no basis for the Appellant's complaint that the Tribunal failed to exercise jurisdiction, even if the Tribunal's construction of s 82A of the Act were incorrect.[xlv] Any error of law would not have vitiated the Tribunal's decision because the Appellant and Explorer had already agreed to some prospective compensation.[xlvi]

3.2     Scope of the Agreement

With agreement reached between the parties on SMP 12, and the Court agreeing with the Tribunal that the Tribunal had no jurisdiction to include a clause providing other compensation prospectively, the remaining scope issue was whether polythene pipes, referred to as poly pipe in the Tribunal decision, were an artificial accumulation of water such that the Explorer could not come within 200 m of them. The Appellant asserted that the Tribunal erred in taking a reductionist approach to the question of whether polythene pipes were an artificial accumulation of water, arguing a proper interpretation of s 111(1)(a)(iii) of the Act requires an analysis of whether water in a reticulation system as a whole is an artificial accumulation, rather than an analysis of each element of the system independently.[xlvii]

After finding the Appellant's reliance on the New South Wales Land and Environment Court case of Martin and Others v Hume Coal Pty Ltd[xlviii] was misplaced,[xlix] the Court looked at the Tribunal’s approach of focusing on the body of water itself as constituting the artificial accumulation, not the means by which water was transported to the point of accumulation.

The Court believed the Tribunal’s approach was legally sound,[l] ultimately holding that “it could not be said that the in-ground polythene pipes (whether on their own or as components of the Tanumbirini ‘water infrastructure’) necessarily came within the description of an ‘artificial accumulation of water’”.[li] By emphasising “necessarily” the Court appears to suggest that the question was susceptible to more than one reasonable answer, but unless the facts inferred from the evidence are necessarily within the description there is no error of law.[lii]

3.3     Terms of the Agreement

The Appellant asserted that the Tribunal misconstrued SMP 13 and erred as a matter of law in determining that its valuation methodology did not reflect a decrease in market value as contemplated by the SMP. The Court, however, simply cast the Appellant's complaint as the Tribunal preferring the Explorer's methodology over the Appellant's,[liii] and dismissed the Appellant's argument.

The Appellant asserted before the Court that the Explorer's valuer had failed to update his evidence to reflect a purported expansion of proposed activities permissible under a new access agreement lodged by the Applicant just before the commencement of the Tribunal proceedings.[liv] The Court took the Appellant to task for neither making submissions nor cross-examining the Applicant's valuer on that issue.[lv] The Court concluded, though, that it really did not matter – even if the expansion of activities were a relevant matter that the Tribunal failed to consider, the failure would not be a vitiating error of law. "[T]he indication as to anticipated decrease in the market value of the land is hypothetical and has no effect in law on the rights, entitlements or liabilities of the parties."[lvi]

The Appellant challenged the Tribunal's determination as to the term of the access agreement, asserting that the Tribunal misconstrued the Regulations by providing a term for the access agreement that extended beyond the expiration date of the exploration permit as it existed at the time of the determination.[lvii] The Court appeared to suggest that the Appellant's complaint was one of merit and not susceptible to appeal, describing the Appellant's "essential grievance on appeal [as being] that the term of the access agreement … was 'indeterminate and uncertain', with access potentially available to Sweetpea for many years, limited only by the life of the exploration permit, which could be extended or renewed".[lviii]

The Court rejected the Appellant's contention that the phrase “on the expiration of the petroleum interest” in SMP 25(1)(c) should be interpreted to mean the expiration date of the exploration permit at the time of the determination. That phrase denotes the exploration permit expiring or ceasing to have effect, which must take into account the original term and any variations available under the Act. To do otherwise would construe SMP 25 inconsistent with various sections the Act.[lix]

The Appellant did not directly advance the jurisdictional argument on appeal that all other entitlements had to first be in place before an access agreement could be determined, as it did before the Tribunal. Instead, the Appellant came at it from a different angle, arguing that in the absence of knowing what activities were to occur on Tanumbirini Station with a purportedly indeterminate term in which to conduct those activities the Tribunal erred by not finding a "reasonable balance between the interests of an interest holder and the interests of a designated person", as required by Regulation 57(2).[lx] The Tribunal had declined to limit the access agreement to operations the Appellant sought to be specified in the access agreement: other regulatory approvals would instead dictate what could and could not occur under the access agreement.[lxi]

The Court appeared to imply that the Appellant was disingenuous in attempting to create the impression that it was in the dark about the activities proposed by the Explorer. The information provided to the Appellant over the course of negotiations and litigation was both extensive and detailed.[lxii] In rejecting the Appellant's contention, the Court noted that Regulation 57(2) is qualified by Regulation 57(3):

In seeking to find the reasonable balance, the Tribunal must ensure that the interest holder is not prevented from carrying out any operations:

(a)   authorised under the relevant petroleum interest in a manner that is consistent with, or authorised by or under, the Act, any Regulations under the Act, or a condition of an exploration permit or licence; or

(b)   required by or under the Act, any Regulations under the Act, or a condition of an exploration permit or a licence; or

(c)   required by or under any other Act or law.

After further noting that the Appellant had not referred to the requirements of Regulation 57(3), the Court held that the Appellant's reliance on Regulation 57(2) to require more detail in the access agreement about future exploration activities was misplaced. Requiring the Tribunal to have a more detailed understanding of the activities, their timing and their duration before those activities were even authorised or required would be inconsistent with Regulation 57(3).[lxiii]

The Appellant also took aim at the terms of the access agreement more generally by alleging that the Tribunal failed to provide reasons for its rejection of the alternative agreement the Appellant had proposed, and that failure constituted an error of law.[lxiv] The Court rejected this proposition.[lxv]

The Court began its analysis of this argument by first describing the Appellant’s alternative agreement and then pointing out where the Tribunal’s determination had incorporated portions of the Appellant’s alternative, albeit having modified some of those clauses.[lxvi] This demonstrated to the Court that the Tribunal sought to find a reasonable balance between the interests of the parties.[lxvii]

Moreover, the Tribunal did provide reasons. If the Tribunal accepted alternative language proposed by the Appellant, the Tribunal considered it reasonable. If an alternative was not included, it was not considered reasonable.[lxviii] If a clause replicated an existing statutory or regulatory protection, the Tribunal declined to include it as unnecessary.[lxix]

The Appellant’s real complaint, according to the Court, was that the Tribunal should have engaged in detailed clause-by-clause comparison and discussion before settling on specific language. The Court rejected this approach as unrealistic:[lxx]

No doubt more detailed and specific reasons could have been provided, but the standard is not one of perfection. The law is tolerably clear that the content of the duty to give reasons will vary according to the nature of the jurisdiction which a court (and I include here a tribunal) is exercising and the nature of the question being decided. [Footnote omitted.] This Court should take a pragmatic and functional approach in assessing the extent or adequacy of reasons properly required to be given by the Tribunal to explain its decision.… The exercise did not lend itself to that level of extensive reasoning.

4.The Supreme Court Decision in the Beetaloo Appeal

Not surprisingly, given the similarities in the two decisions from the Tribunal, the Supreme Court reached a result in the Beetaloo Appeal similar to the Tanumbirini Appeal: the appeal was dismissed. The overarching focus of the pastoralist in Tanumbirini and the Tanumbirini Appeal, though, was to prevent any access agreement from being determined over Tanumbirini Station at all. The focus of the pastoralist in Beetaloo and the Beetaloo Appeal was instead compensation.[lxxi] This led to a more robust analysis of the concept of compensation in the Beetaloo Appeal in examining the Tribunal’s ruling that it had no jurisdiction to determine prospective compensation.

The Court initially noted:[lxxii]

In any consideration of the entitlement to receive and the obligation to pay compensation, it is important to remember that the essential concept of ‘compensation’ is payment to make up for the consequences of a past adverse event: something which has happened.”

In making this observation, the Court looked to a wide variety of legal contexts in support: workers compensation,[lxxiii] compulsory acquisition,[lxxiv] common law,[lxxv]and personal injury.[lxxvi] While the Appellant argued that personal injury cases often determine compensation for future losses, the Court responded that such assessment take place only after the adverse event had occurred and liability was established. As counsel for the Explorer submitted, “[t]here is no such thing as a personal injury case which assesses compensation before the plaintiff has been injured”.[lxxvii] The Court further approved of the Tribunal’s view that the limitation period in the Act for compensation claims clearly envisioned responsive rather than pre-emptive claims.[lxxviii]

Finally, the Court turned to what it saw as the primary task of the Tribunal under Regulation 29, the determination of the terms of an access agreement so as to allow the interest holder access to the land in question. In undertaking that task, the Tribunal had to consider Regulation 57(2) requiring it to “seek to find a reasonable balance between the interests of an interest holder and the interests of a designated person”, and Regulation 57(3) requiring it to “ensure that the interest holder is not prevented from carrying out [authorised or required] operations. The two Regulations, when read together:[lxxix]

…meant that, however the balance was struck between the interests of Sweetpea and the interests of Yarabala, Sweetpea should not be prevented from carrying out operations authorised and required under its exploration permit. To construe the Act and the Regulations to require or even permit the Tribunal to engage in a contested wide-ranging hearing to assess and ultimately make orders for payment of compensation for anticipated adverse events (which may never occur) would result in a significant distraction from the Tribunal’s core task under regulation 29(1): “determination as to the provisions that should form the contents of an access agreement to allow the interest holder to gain access to the relevant land”.

That the parties had attempted to reach a compensation settlement during mandatory negotiations was of no consequence to the Tribunal’s jurisdiction, or lack thereof, to determine and order compensation at the time of determining the terms of an access agreement.[lxxx] The Appellant established no error of law on the part of the Tribunal in declining jurisdiction to prospectively determine compensation.

As no determination of an access agreement was made in Beetaloo, the Beetaloo Appeal dwelt very little on the general approach to the terms of an access agreement compared to the Tanumbirini Appeal.[lxxxi] It did note, though, that most of the SMPs in Schedule 2 of the Regulations are clauses capable of inclusion, without amendment, into an access agreement.[lxxxii] This suggests that a Court will consider the minimum protection to be a reasonable position, and thus likely the default position, unless a sufficient evidentiary basis for an alternative is provided.

5. Impact of the Decisions

The importance of the decision of the Tribunal in Tanumbirini and the Supreme Court in both the Tanumbirini Appeal and the Beetaloo Appeal lies first in their precedential value. They are the first decisions testing and interpreting the new land access agreement provisions of the Regulations, which came into effect in 2021.

The decisions create conundrums for a landowner regarding compensation. An exploration company and a pastoralist may agree in principle that provisions should be made prospectively in an access agreement for compensation beyond that for the drilling of a well. If they cannot agree on an amount and the matter goes to the Tribunal, however, the pastoralist stands to get nothing beyond a minimum amount for the drilling of a well. The Tribunal has no authority to determine, let alone order, anything more. This approach runs counter to other jurisdictions whose access regimes take a more comprehensive approach in requiring a prospective determination of compensation[lxxxiii] and expressly provide jurisdiction to courts and tribunals to prospectively determine compensation where negotiation or mediation fails.[lxxxiv]

What creates a conundrum for the landowner provides a somewhat greater level of certainty for the exploration company. There is, of course, no guarantee of a successful determination from the Tribunal: the Tanumbirini Respondent advanced numerous arguments, albeit unsuccessful, as to why the Tribunal should not have determined the access agreement.[lxxxv] Nevertheless, an exploration company’s assessment of the costs of delay and litigation combined with the knowledge that the Tribunal will limit prospective compensation to that only for the drilling of a well creates more certainty for the exploration company as to the costs it may face in negotiating an access agreement.

One may argue the Northern Territory approach prevents pastoralists from making unreasonable demands and fits within the objectives of the Act to promote petroleum exploration and production.[lxxxvi] Others, however, would say this still provides unfair advantage to exploration companies and runs contrary to the recommendations of the Fracking Inquiry to level the playing field between pastoralists and exploration companies.[lxxxvii]

The decisions also create questions for landowners regarding how much time and effort to put into the determination of a preliminary assessment of any diminution of market value. The failure to include any figure at all would result in a legally inadequate access agreement which a Minister could not approve,[lxxxviii] and the Tribunal could not determine.[lxxxix] The Court, though, held that any figure is of little or no legal consequence at the time an access agreement is determined.[xc] This could result in some costs of valuation and other expert evidence being considered unreasonable for purposes of the landowner cost recovery provisions of the Regulations.[xci] Such expert evidence at the front end, however, may be critical at the back end. A determination of compensable damage, once the Tribunal's jurisdiction is enlivened by ss 81 or 82A of the Act, may require the prior determination of a baseline by which to measure damages.

Landowner anxiety over compensation and valuation should not be unexpected given the object of the Act to promote the development of the Northern Territory’s petroleum resources. The peak body for the pastoral industry sought a statutory veto over access for petroleum exploration in its submissions to the Fracking Inquiry, a recommendation that was rejected,[xcii] and that did not find its way into the Regulations.[xciii] While the Regulations that ultimately came out of the Fracking Inquiry may have been designed to level the playing field for exploration companies and landowners, the objectives of the Act to promote exploration, the limited jurisdiction to prospectively determine prospective compensation, and the inability of a pastoralist to veto access indicates there is still a tilt in favour of the exploration companies. Regardless of whether the playing field is level or not, the Regulations do not allow a landowner to refuse to play.