Mining companies exert huge pressure on landowners for access to their land to begin their operations. Many farmers and residents report that while initial agreements and compensation seem fair, the developments escalate well beyond what was agreed upon - without consultation.
If reports from mainland gasfields are anything to go by, landowners who sign lease agreements can also get much more than they bargained for – in the form of extra wells they didn’t agree to, in places that were never discussed when the agreement was being negotiated.
Farmer's also say there's often a major difference between a company's promise of a small surface footprint and the reality of their total infrastructure requirement. For example, company 'landsmen' can neglect to mention that all fracking-related infrastructure buried on their land requires signage, which can impact on their ability to work their land.
In Tasmania, as a general rule the Crown owns the minerals on and under your land. The only exceptions are:
- where minerals are reserved to the landholder in old property deeds
- Category 3 minerals, such as sand, stone and clay
Because almost all minerals are owned by the Crown and not the landowner, the Government has the power to authorise others to look for and remove them from your land. The Environmental Defender's Office (EDO) has published a Mining Facts – Access to Private Land fact sheet to explain landowners' rights regarding access to their land by mining companies.
If a mining company thinks your land is in an area they consider prospective for a commercially recoverable resource, they must apply for the necessary licences and permits. The 2 main licences are an Exploration Licence and a Production Licence.
An exploration licence gives a mining company an exclusive right to explore for minerals within the area specified in the licence. Exploration licences are usually issued for up to 5 years, but that period can be extended. Exploration involves looking for minerals and testing to establish if an area has a commercial amount of the resource.
Exploration for shale gas can't be carried out without fracking, although the Tasmanian Government Policy Statement on Hydraulic Fracturing (Fracking) 2015 states:
The Government continues to support exploration activities for hydrocarbons, but fracking will not be permitted in its exploration. It follows that fracking would not be permitted in the development or production phases of a resource project either.
A production licence gives a mining company the right to extract the resource, such as petroleum, gas (including shale gas) and geothermal energy. Production licences are only granted if a viable resource is identified during the exploration phase. A production licence can only be issued over your land when:
- You have entered into a compensation agreement with the mining company; or
- the Mining Tribunal has made a compensation determination in relation to the land (this usually occurs where no agreement can be reached with the landowner)
In Tasmania, mining companies can't undertake any exploration or production work within 100 metre of buildings, or bodies of water such as wells or dams, on your property without your consent.
Some property owners on the mainland's experience is that when a boundary fence between their property and a neighbouring property comes into play, the situation is more complex than it appeared at first glance. For example, a gas well on a neighbour's property can be situated much closer to buildings or dams on your property because the wells on your neighbour's land are subject to your neighbour's lease agreement, not yours. This misunderstanding when signing agreements, and the presumption that drilling companies will 'do the right thing', has led to some landowners having wells located much closer to their family home than 100 metres.
Landowners in Tasmania aren't required to be individually notified when a company applies for an exploration licence on their property.
If the Director of Mines intends to grant an exploration licence to a mining company, a notice will be published in the public notices section of the local newspaper. Notices are often also published on the Tasmanian government website. There's no option for landowners to sign up to receive automatic email notifications when an exploration licence is granted.
Notices include the name of the company and the area covered by the licence. They also usually include details about the types of minerals or hydrocarbons the company is exploring for, and information about how you can object to the company's application for an exploration permit.
It's something that makes us feel completely powerless, we only found out about the process two weeks ago. The only time we're apparently informed that a tenement is being applied for is if you're reading the public notices in the paper.
- Be made in writing and emailed or posted to the Registrar of Mines
- Clearly set out the grounds for your objection
- Be received by the Registrar of Mines within 28 days of the date of the public notice
- Be accompanied by the objection fee (currently $41.50, but check the public notice for up to date fees)
Generally speaking, a person with an 'estate or interest' in land is a person who has a direct financial or proprietary interest in the land within the application area. Landowners, lessees, mortgagees or business operators are eligible to object. Adjoining property owners, downstream landholders, community groups or individuals who use the land for recreation are usually not eligible to object.
Grounds for objection are usually limited to the impacts of the exploration activity, rather than the impacts of mining activities and extraction if the company's exploration identifies a viable resource.
If you lodge an objection, MRT will try to resolve your objection by negotiation. MRT might seek to obtain your agreement by, for example, imposing a condition on the company to limit the number or location of drilling sites on your land. You may be offered an option to excise your land from the exploration licence area. If you agree to have your property removed from the exploration licence area, you are effectively removed from the objection process because you no longer have an 'estate or interest' in the land within the application area.
If MRT can't resolve your objection, it will be referred to the Mining Tribunal for determination.
If you have questions about whether you are eligible to object or what grounds of objection you can raise, contact EDO Tasmania or a private lawyer.
You aren't required to be notified by MRT or the mining company if an exploration licence is granted over your property. You are only required to be given at least 14 days notice (in writing) before any exploration activities commence.
A company isn't required to enter into a compensation agreement with you at the exploration stage. An agreement isn't a requirement for an exploration licence to be granted. However, if you believe a company's activities have caused any of the following issues to occur on your property in the course of carrying out their exploration, you can apply for compensation for compensable loss:
- damage to the surface of the land
- damage to crops, trees, grasses, fruit, vegetables or other vegetation on the land
- damage to buildings, structures or works on the land
- damage to any improvement on the land
- loss of opportunity to make any planned improvement on the land
- deprivation of possession or use of the whole or part of the surface of the land
- severance of the land from other land of the owner or occupier of that land
- destruction or loss of, or injury to, disturbance of, or interference with, stock
- loss of amenity, including recreation and conservation values
- any decrease in the market values of the owner's or occupier's interest in the land
- surface rights of way and easements
As with the notification process for a mining company's application to explore for a resource on your land, landowners aren't required to be individually notified when a company applies for a production licence on their property.
A production licence can't be issued to a company to extract resources from your property unless compensation arrangements are in place. This means that in practice you will be contacted before a production licence is issued.
Depending on the planning scheme in your area, a mining company might also need a planning permit in addition to the production licence. If a planning permit is required, you must be notified before an application for the permit is lodged with your local council. Your consent isn't required for the application; you're only required to be notified that the application will be made.
If a planning permit isn't required (if the production activity is a 'permitted' use under the planning scheme), you can't raise any objections and the local council is required to grant a permit for the production activity. The council can decide to make the permit subject to some conditions.
If the production activity is categorised as a 'discretionary' use under the planning scheme in your area, or if it's referred to the EPA as a Level 2 activity, notice of the application will be published in the local paper and landowners and adjoining landowners will be notified. A sign is also posted on the actual site where the mining activity will be occurring.
Any person can make an objection (known as a 'representation') to the local council within 14 days of the date of the notice. Objections should focus on whether the proposed production activity meets the requirements of the planning scheme, rather than general concerns regarding the impacts of production.
If the local council grants a permit for a discretionary production activity, any person who made a representation can appeal to the Resource Management and Planning Appeal Tribunal. It's recommended that you contact EDO Tasmania or a private lawyer for advice before commencing any appeal.
It is strongly recommend that you seek legal advice before signing any agreement with a drilling company. The Law Society has a list of practitioners who can provide advice.
The Australian Government's Rural Industries Research and Development Corporation has published a guide Principles for Negotiating Appropriate Co-existence Arrangements for Agricultural Landholders to assist landowners who are negotiating agreements with mining companies.
A Compensation Agreement with a mining company must include the following details:
- a description of the proposed work and the location and area of the work
- the anticipated date of commencement and anticipated duration of the proposed work
- the agreed point or points of entry onto and exit from the land for the purposes of the work
- the number and type of vehicles, plant and equipment involved
- a description of the facilities and sanitary arrangements to be provided on the land
Your Agreement can include other issues, but each of the 5 points above must be addressed.
Make a Complaint
The Minister can revoke an exploration or production licence if a mining company isn't complying with its licence conditions. Any person who is concerned that a company is breaching its licence conditions should contact MRT and ask them to investigate.
If you are concerned about an urgent pollution issue, contact the EPA's Pollution Hotline on 1800 005 171 to report the incident.
If a planning permit has been issued for the production activity, you should also contact the local council (or the EPA, if the breach relates to environmental conditions) and ask them to investigate.
If your local council fails to take action within 120 days, and you're a person whose 'interests are affected' by the breach, you can apply to the Resource Management and Planning Appeal Tribunal for an order requiring the mining company to make good any breach. It is a good idea to seek legal advice before applying to the Tribunal.
If a term of a compensation agreement has not been complied with, contact the mining company to make a complaint. If the matter is not resolved, you can seek legal advice to discuss your options.
Right to Protest
On the mainland, the invasion of unconventional gas mining has caused communities everywhere to mobilise and come together to protect their air, water, farmland and way of life. That movement is the Lock The Gate Alliance. Lock the Gate says the best thing farmers can do to defend their property is to join with their neighbours and refuse to co-operate:
- Put a Lock the Gate sign on your fence
- Refuse to keep anything confidential
- Ensure your neighbours know about the threat
- Do not sign anything without legal advice
- Unite and declare your community gasfield free
On the mainland, fracking companies have said "if farmers don't want us on their property, we won't be going through that gate".
However, under Tasmania's new Workplaces (Protection from Protestors) Act 2014 anyone who tries to prevent mining operators from entering property or carrying out work may be committing an offence. If you are arrested as a result of protest activity, contact Legal Aid.
If a mining company has a valid exploration or production licence, you can be fined up to $14,000 if you try to prevent or obstruct the company from carrying out activities authorised under their licence.
Some landowners might be asked to sign a non-disclosure agreement – a legal term for a gag order - before they enter into an access agreement with a gas company.
The use of non-disclosure agreements seem to be more common in the US than in Australia. Non-disclosure orders are usually made when fracking companies agree to pay compensation for damages, but don't want affected landowners to disclose the terms of the agreement to any third party – especially the media. They likely also don't want landholders to know how different their compensation amounts are from their neighbour.
But mainly, companies probably require non-disclosure agreements so they can continue to settle out of court and deal directly with the aggrieved parties. Non-disclosure agreements ensure there's no public record of wrongdoing.
There are no court processes that could require scientific proof of the claims made, no expert analysis or forensic testing of evidence. Non-disclosure agreements mean that when something goes wrong, no culpability officially attaches to the company, which can continue to frack for gas relatively unimpeded by court orders or other legally binding terms.
NSW Inquiry into CSG
A NSW Senate Standing Committee learned that despite landholders' understanding that they don't own the mineral resources underneath their property:
... the realisation that they are legally required to give access to their land to gas exploration companies and that those companies could, for example, construct roads, clear drilling sites, build work camps and, ultimately, construct gas production facilities, came as a profound shock.
Gas companies said they had not used these powers to access private property, and they'd prefer not to use them in the future. Santos's evidence to the committee was that "If a farmer does not want us on his property, we will not be going through that gate".
Santos' view contradicts the experience of some farmers in NSW, who say that drilling has taken place on their properties without warning. Farmers say that the reality of the gas companies' aggressive assertion of their mining rights is that:
In some cases, coal seam gas proponents have refused to consult or negotiate in any way with landholders, who are deeply concerned about the impact that any such project may have upon their land and their livelihoods.
The committee also heard that confidential agreements that gas companies negotiated with farmers resulted in some farmers being paid just $250 for the life of a well, while others were being paid $9000 a year. Farmers know that each gas well makes the company a profit of between $800,000 - $1million a year.
Apart from being aggrieved at this financial inequity, many farmers say they don't want the compensation. Instead, they want drilling for unconventional gas banned from their land so that they can get on with farming the land they've always farmed. The President of the NSW Farmers Association's submission to the NSW CSG Inquiry said:
Disempowered, uncertain, exhausted, under siege – these are words that I hear landholders use time and again to describe the way they feel … This is not a fact of nature like a drought, a flood or a plague, which our farmers are fairly hardened to.
In the US, where landowners in many shale gas states own the rights to the resources under their land, some fracking companies have been accused of being loose with the truth when negotiating agreements with landholders. Property owners complain that the deal they struck for royalties didn't mention the range of charges companies later levied on them, or didn't address issues such as the removal of wastewater ponds - which landowners presumed would be the company's responsibility - when the gas wells ran dry and the company moved on.
When They're Gone
The Mineral Exploration Code of Practice sets out the requirements for land to be rehabilitated following exploration. For production, the licence conditions and any workplan will also set out requirements as to rehabilitation.
Mining companies are required to provide a security deposit to ensure that funds are available to pay for remediation costs if a company defaults on its obligations. If land affected by exploration or production activities is abandoned, the Minister can enter into a contract to cause the land to be rehabilitated. Funds for this work will come from the Rehabilitation of Mining Lands Trust Fund.
The Minister can also use the security deposit to make good any damages caused by exploration or mining activity that was carried out in breach of the workplan. The company can forfeit the full security deposit if it consistently breaches its licence conditions.
Landowners may be entitled to compensation if their land isn't satisfactorily rehabilitated. If this happens in relation to your land, we recommend that you seek legal advice about your compensation entitlements.
Being informed about the licence approval processes and your rights, obligations and options in relation to mining on your land is a good way to be prepared if you think a company has an interest in exploiting your land, or a landsman approaches you directly.
Other preparations you could consider include establishing pre-drilling baselines for your family's health and the health of your immediate environment, such as:
- Take baseline blood tests for each member of your family - hair analysis can establish baseline heavy metal exposure levels
- Obtain pre-exploration and pre-production water, soil and air samples - include a series of samples taken from different areas on your property over a few months
- Take videos and photos of your home to show the condition of walls, ceilings, etc
- Take videos and photos of your property - include fences, dams, watercourses, soil health and vegetation
- Take videos and photos of your community - include the condition of local roads, creeks and rivers
- Survey long-term residents to establish if there's anecdotal evidence of methane bubbling in local waterways
- Take photos or videos, with audio, of pre-production noise and light levels
- Know your local noise and light regulations
Southern Illinoisans Against Fracturing our Environment (SAFE) have published a guide for baseline testing. The guide is American, and not directly relevant to Tasmania, but it includes ideas that might be useful. The National Toxics Network may be able to offer guidance and practical suggestions.
Landholders' Right to Refuse Bill
Greens Senator Larissa Waters has put forward the Landholders' Right to Refuse (Gas and Coal) Bill 2015 which would make it unlawful for companies to carry out gas or coal mining activities on private property without the prior written authorisation of landholders. If successful, the Bill will substantially strengthen the rights of farmers, landholders, local councils and Native Title holders to say no to mining on their land.
Progress of the Bill, which seems unlikely to gain wide parliamentary support, can be followed here.