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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Mining and Petroleum Legislation
Amendment (Land Access) Bill 2010
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to amend the Mining Act 1992 and the Petroleum (Onshore)
Act 1991 in relation to access to land by the holders of prospecting titles over the land
following the decision of the Supreme Court in Brown & Anor v Coal Mines
Australia; Alcorn & Anor v Coal Mines Australia Pty Ltd [2010] NSWSC 143. The
Bill:
(a) removes the obligation, before prospecting activities are carried out, for an
access arrangement to be made with certain secondary landholders whose
interests are recorded on the land register but who are not entitled to
possession of the land (such as a financial institution holding a registered
mortgage over the land), but retains the obligation on holders of those titles to
pay compensation to those secondary landholders for compensable loss caused
by their prospecting activities, and
(b) enables separate land access arrangements to be made where there are multiple
landholders of particular land and removes provision for the termination of
any arrangement with multiple landholders whenever one of those landholders
ceases to be a landholder or when an additional person becomes a landholder,
and
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Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Explanatory note
(c) makes a person who becomes an additional landholder of land for which there
is an existing access arrangement subject to that arrangement unless the person
objects within 7 days after being notified of the arrangement and, if he or she
objects, until an access arrangement is agreed or determined or a period of
28 days expires without any such agreement or determination, and
(d) provides for access arrangements to make provision for the notification to the
holder of the prospecting title of particulars of additional landholders and
makes it clear that additional provisions may be included in the arrangements
if they are not matters already required by or under the Act or the conditions
of the prospecting title, and
(e) enables access arrangements to be varied by agreement of the parties, by the
arbitrator who determined the arrangement or by the Land and Environment
Court, and
(f) repeals an uncommenced provision of the Mining Amendment Act 2008 that
would have required the specification of the amount of compensation that is
payable in the event of compensable loss before prospecting activities are
carried out (in addition to requiring a land access arrangement before those
activities are carried out), and
(g) excludes secondary landholders from various other provisions that require
landholders to be notified before leases and other authorities are granted or
areas constituted for prospecting, and
(h) validates existing land access arrangements and leases and other authorities if
they comply with the revised requirements set out in the proposed Act.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on the date of assent
to the proposed Act.
Schedule 1 Amendment of Mining Act 1992 No 29
Currently, the definition of landholder under the Mining Act 1992 (the Mining Act)
includes a person identified in any register or record kept by the Registrar-General as
a person having an interest in the land. Schedule 1 [1] amends the definition of
landholder to provide that in order to qualify as a person who falls within that part
of the definition of landholder, the person must be a mortgagee in possession, the
holder of a lease, or other person entitled to an exclusive right of occupation, a
Minister or public authority having an interest under a covenant imposed under the
Crown Lands Act 1989 or under a conservation, natural heritage or biobanking
agreement or a person prescribed by the regulations.
Any person who does not hold any such interest in the land but who is identified in
the land register as a person having an interest in the land (such as a financial
Explanatory note page 2
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Explanatory note
institution holding a registered mortgage over the land) is a secondary landholder.
This amendment removes the obligation, before prospecting activities are carried
out, for an access arrangement to be made with secondary landholders. It also
removes various obligations under the Mining Act to notify those landholders before
leases and other authorities are granted or certain prospecting areas are constituted
(eg cl 21 of Schedule 1; s 177; s 200; s 221).
Schedule 1 [8] and [9] amend sections 255A, 262, 269 and 271 of the Mining Act to
retain the obligation on holders of prospecting titles to give notice to secondary
landholders prior to entering their land and to pay compensation to those secondary
landholders for compensable loss caused by their prospecting activities.
Schedule 1 [10] amends section 383C of the Mining Act to retain a general
immunity for secondary landholders from any action, liability, claim or demand
arising as a consequence of any act or omission of a person authorised to exercise any
power or right under the Mining Act or under a prospecting title. Schedule 1 [2]
inserts a definition of secondary landholder for the purpose of the proposed
amendments.
Currently, section 140 of the Mining Act requires the holder of a prospecting title to
enter into an access arrangement in relation to land that is agreed between the holder
of the title and each landholder prior to carrying out prospecting operations on that
land. Schedule 1 [3] substitutes section 140 to enable separate land access
arrangements to be made where there are multiple landholders of particular land,
where prospecting occurs progressively in different areas of the same landholding or
where separate arrangements are required to preserve the confidentiality of certain
provisions in the arrangements. Schedule 1 [5] amends section 142 to make
provision for circumstances in which some, but not all, landholders of particular land
have agreed to an access arrangement with the holder of a prospecting title. In
particular, a landholder who has agreed to an access arrangement will not be a party
to a hearing before an arbitrator in relation to the landholders who have not agreed to
an access arrangement, unless the landholder requests to be made a party to the
hearing.
Schedule 1 [4] amends section 141 of the Mining Act to provide that access
arrangements may make provision for the notification to the holder of the
prospecting title of particulars of additional landholders and to make it clear that
additional provisions may be included in the arrangements if they are not matters
already required by or under the Act or the conditions of the prospecting title.
Schedule 1 [6] inserts proposed section 155 (6A) which provides that a review of a
determination made by an arbitrator is to be by way of rehearing in the Land and
Environment Court.
Schedule 1 [7] substitutes sections 157 and 158 of the Mining Act. Proposed
section 157 enables an access arrangement to be varied or terminated by the
agreement of the parties to the arrangement, by the arbitrator who determined the
arrangement or by the Land and Environment Court.
Explanatory note page 3
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Explanatory note
Proposed section 158 provides that an access arrangement does not terminate if a
person becomes a landholder of all or any part of the land concerned after the
arrangement was agreed or determined, or if one landholder to an arrangement with
2 or more landholders ceases to be a landholder of the land concerned.
A person who becomes an additional landholder of land for which there is an existing
access arrangement is subject to that arrangement unless the person objects within
7 days after being notified of the arrangement and, if he or she so objects, until an
access arrangement is agreed or determined, or a period of 28 days expires without
any such arrangement or determination. If land subject to an access arrangement
ceases to be subject to a particular prospecting title, and instead becomes subject to
another prospecting title that is either held by the same title holder or by a person who
is assigned the rights of the holder under the access arrangement, the access
arrangement does not terminate and the arrangement becomes an access arrangement
in respect of that other prospecting title.
Schedule 1 [11] permits, in addition to the regulation of arbitrator's costs, the
making of provisions to regulate the procedure of any arbitration conducted under the
Mining Act.
Schedule 1 [12] permits regulations under the Mining Act to contain provisions of a
savings or transitional nature consequent on the enactment of the proposed Act.
Schedule 1 [13] contains savings and transitional provisions consequent on the
enactment of the proposed Act, which validate existing land access arrangements and
leases or other authorities if they comply with the revised requirements set out in the
proposed Act.
Schedule 2 Amendment of Mining Amendment Act
2008 No 19
Schedule 2 [2] amends an uncommenced provision of the Mining Amendment
Act 2008 (the 2008 Act) to retain the obligation on the holder of a prospecting title to
pay compensation to a secondary landholder for compensable loss caused by the
holder's prospecting activities.
Schedule 2 [3] and [4] repeal uncommenced provisions of the 2008 Act that would
have required the specification of the amount of compensation that is payable in the
event of compensable loss before prospecting activities are carried out.
Schedule 2 [1] and [5] repeal uncommenced provisions of the 2008 Act
consequential on the amendments made by Schedule 1 to the proposed Act.
Schedule 3 Amendment of Petroleum (Onshore) Act
1991 No 84
Currently, the definition of landholder under the Petroleum (Onshore) Act 1991 (the
Petroleum Act) includes a person identified in any register or record kept by the
Explanatory note page 4
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Explanatory note
Registrar-General as a person having an interest in the land. Schedule 3 [1] amends
the definition of landholder to provide that in order to qualify as a person who falls
within that part of the definition of landholder, the person must be a mortgagee in
possession, the holder of a lease, or other person entitled to an exclusive right of
occupation, a Minister or public authority having an interest under a covenant
imposed under the Crown Lands Act 1989 or under a conservation, natural heritage
or biobanking agreement or a person prescribed by the regulations.
Any person who does not hold any such interest in the land but who is identified in
the land register as a person having an interest in the land (such as a financial
institution holding a registered mortgage over the land) is a secondary landholder.
This amendment removes the obligation, before prospecting activities are carried
out, for an access arrangement to be made with secondary landholders. It also
removes various obligations under the Petroleum Act to obtain the consent of those
landholders before certain operations under leases may be carried out (eg s 71).
Schedule 3 [8] amends section 101 of the Petroleum Act to retain the obligation on
holders of prospecting titles to give notice to secondary landholders prior to entering
their land. Schedule 3 [2] inserts a definition of secondary landholder for the
purpose of the proposed amendments.
Currently, section 69C of the Petroleum Act requires the holder of a prospecting title
to enter into an access arrangement in relation to land that is agreed between the
holder of the title and each landholder prior to carrying out prospecting operations on
that land. Schedule 3 [3] substitutes section 69C to enable separate land access
arrangements to be made where there are multiple landholders of particular land,
where prospecting occurs progressively in different areas of the same landholding or
where separate arrangements are required to preserve the confidentiality of certain
provisions in the arrangements. Schedule 3 [5] amends section 69E to make
provision for circumstances in which some, but not all, landholders of particular land
have agreed to an access arrangement with the holder of a prospecting title. In
particular, a landholder who has agreed to an access arrangement will not be a party
to a hearing before an arbitrator in relation to the landholders who have not agreed to
an access arrangement, unless the landholder requests to be made a party to the
hearing.
Schedule 3 [4] amends section 69D of the Petroleum Act to provide that access
arrangements may make provision for the notification to the holder of the
prospecting title of particulars of additional landholders and to make it clear that
additional provisions may be included in the arrangements if they are not matters
already required by or under the Act or the conditions of the prospecting title.
Schedule 3 [6] inserts proposed section 69R (6A), which provides that a review of a
determination made by an arbitrator is to be by way of rehearing in the Land and
Environment Court.
Explanatory note page 5
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Explanatory note
Schedule 3 [7] substitutes sections 69T and 69U of the Petroleum Act. Proposed
section 69T enables an access arrangement to be varied or terminated by the
agreement of the parties to the arrangement, by the arbitrator who determined the
arrangement or by the Land and Environment Court.
Proposed section 69U provides that an access arrangement does not terminate if a
person becomes a landholder of all or any part of the land concerned after the
arrangement was agreed or determined, or if one landholder to an arrangement with
2 or more landholders ceases to be a landholder of the land concerned.
A person who becomes an additional landholder of land for which there is an existing
access arrangement is subject to that arrangement unless the person objects within
7 days after being notified of the arrangement and, if he or she so objects, until an
access arrangement is agreed or determined, or a period of 28 days expires without
any such arrangement or determination. If land subject to an access arrangement
ceases to be subject to a particular prospecting title, and instead becomes subject to
another prospecting title that is either held by the same title holder or by a person who
is assigned the rights of the holder under the access arrangement, the access
arrangement does not terminate and the arrangement becomes an access arrangement
in respect of that other prospecting title.
Schedule 3 [9] allows the making of regulations to regulate arbitrator's costs and the
procedure of any arbitration conducted under the Petroleum Act.
Schedule 3 [10] inserts proposed section 141 to provide a general immunity to
landholders (including secondary landholders) from any action, liability, claim or
demand arising as a consequence of any act or omission of a person authorised to
exercise any power or right under the Petroleum Act or under a petroleum title.
Schedule 3 [11] allows regulations under the Petroleum Act to contain provisions of
a savings or transitional nature consequent on the enactment of the proposed Act.
Schedule 3 [12] contains savings and transitional provisions consequent on the
enactment of the proposed Act, which validate existing land access arrangements and
petroleum titles if they comply with the revised requirements set out in the proposed
Act.
Explanatory note page 6
First print
New South Wales
Mining and Petroleum Legislation
Amendment (Land Access) Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Mining Act 1992 No 29 3
Schedule 2 Amendment of Mining Amendment Act 2008 No 19 9
Schedule 3 Amendment of Petroleum (Onshore) Act 1991 No 84 10
b2010-030-30.d11
New South Wales
Mining and Petroleum Legislation
Amendment (Land Access) Bill 2010
No , 2010
A Bill for
An Act to amend the Mining Act 1992 and the Petroleum (Onshore) Act 1991 in
relation to rights of access to land for exploration; and for other purposes.
Clause 1 Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Mining and Petroleum Legislation Amendment (Land 3
Access) Act 2010. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
Page 2
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Amendment of Mining Act 1992 No 29 Schedule 1
Schedule 1 Amendment of Mining Act 1992 No 29 1
[1] Dictionary, definition of "landholder" 2
Omit paragraph (g) from the definition of landholder. Insert instead: 3
(g) a person identified in any register or record kept by the 4
Registrar-General as a person having an interest in the 5
land, being: 6
(i) a mortgagee in possession of the land, or 7
(ii) a lessee of the land or other person entitled to an 8
exclusive right of occupation of the land, or 9
(iii) a Minister or public authority having the benefit of 10
a covenant affecting the land that is imposed by a 11
Minister on behalf of the Crown under the Crown 12
Lands Act 1989, or 13
(iv) a Minister or public authority having an interest in 14
the land under a conservation, natural heritage or 15
biobanking agreement, or 16
(v) a person prescribed by the regulations for the 17
purposes of this paragraph, or 18
(g1) a person identified in any register or record kept by the 19
Registrar-General as a person having an interest in the 20
land, other than a person to whom paragraph (g) applies, 21
but only in a provision of this Act in which a reference to 22
a landholder is expressed to include a secondary 23
landholder, or 24
Note. See s 255A, Part 13, s 383C. 25
[2] Dictionary 26
Insert in alphabetical order: 27
secondary landholder--see paragraph (g1) of the definition of 28
landholder. 29
[3] Section 140 30
Omit the section. Insert instead: 31
140 Prospecting to be carried out in accordance with access 32
arrangement 33
(1) The holder of a prospecting title must not carry out prospecting 34
operations on any particular area of land except in accordance 35
Page 3
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Schedule 1 Amendment of Mining Act 1992 No 29
with an access arrangement or arrangements applying to that area 1
of land: 2
(a) agreed (orally or in writing) between the holder of the 3
prospecting title and each landholder of that area of land, 4
or 5
(b) determined by an arbitrator in accordance with this 6
Division. 7
(2) Separate access arrangements may (but need not) be agreed or 8
determined with different landholders of the same area of land, 9
for different areas of the same landholding or with respect to the 10
different matters to which access arrangements relate. 11
(3) Separate access arrangements may be made to preserve the 12
confidentiality of provisions of the arrangements, to deal with 13
persons becoming landholders at different times or for any other 14
reason. 15
[4] Section 141 Matters for which access arrangements to provide 16
Omit section 141 (1) (i). Insert instead: 17
(i) the notification to the holder of the prospecting title of 18
particulars of any person who becomes an additional 19
landholder, 20
(j) such other matters not otherwise required by or under this 21
Act or the conditions of the prospecting title as the parties 22
to the arrangement may agree to include in the 23
arrangement. 24
[5] Section 142 Holder of prospecting title to seek access arrangement 25
Omit section 142 (3). Insert instead: 26
(3) The holder of a prospecting title and a landholder of the land 27
concerned may agree (either orally or in writing and either before 28
or after the prospecting title is granted) on an access arrangement. 29
(4) If some but not all of the landholders of any particular land have 30
agreed to an access arrangement, a reference in sections 143-156 31
to each landholder of the land or to a party to the hearing before 32
an arbitrator does not include a reference to any of those 33
landholders who has agreed to an access arrangement. However, 34
the arbitrator may allow a landholder who has agreed to an access 35
arrangement to become a party to the hearing of the matter in 36
order to ensure consistency in the access arrangements over the 37
same land, and may, for that purpose, replace the agreed access 38
arrangement with the access arrangement determined by the 39
arbitrator. 40
Page 4
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Amendment of Mining Act 1992 No 29 Schedule 1
(5) In this section, a reference to the holder of a prospecting title 1
includes a reference to the proposed holder of a prospecting title. 2
[6] Section 155 Review of determination 3
Insert after section 155 (6): 4
(6A) A review of a determination is to be by way of rehearing, and 5
fresh material or material in addition to, or in substitution for, the 6
material considered on the making of the determination by the 7
arbitrator may be given on the review and taken into 8
consideration by the Land and Environment Court. 9
[7] Sections 157 and 158 10
Omit the sections. Insert instead: 11
157 Variation of access arrangements 12
(1) An access arrangement may be varied in accordance with the 13
terms of the arrangement relating to its variation. 14
(2) An access arrangement may also be varied: 15
(a) by the agreement of the parties to the arrangement, or 16
(b) with the consent of all the parties to the arrangement, by 17
the arbitrator who determined the arrangement, or 18
(c) on application by any of the parties to the arrangement, by 19
order of the Land and Environment Court. 20
(3) In this section, vary includes terminate. 21
158 Change in landholders etc 22
(1) An access arrangement with 2 or more landholders does not 23
terminate because one of those landholders ceases to be a 24
landholder of the land concerned. 25
(2) An access arrangement does not terminate because a person 26
becomes a landholder of all or any part of the land concerned 27
after the arrangement was agreed or determined. 28
(3) An access arrangement does not run with the land, and 29
accordingly a person does not (except as provided by this section) 30
become a party to the access arrangement merely because the 31
person becomes a landholder of any of the land after the access 32
arrangement was agreed or determined. 33
(4) If, after an access arrangement has been agreed or determined, a 34
person becomes a landholder of any of the land to which the 35
arrangement applies in addition to another landholder who 36
Page 5
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Schedule 1 Amendment of Mining Act 1992 No 29
continues to be a party to the arrangement, the provisions of the 1
arrangement (other than those relating to the payment of 2
compensation) apply to the new landholder as if the new 3
landholder were a party to the arrangement, but only if the holder 4
of the prospecting title concerned has given the new landholder a 5
copy of the access arrangement. 6
(5) If the new landholder objects to the access arrangement within 7
7 days after being given a copy of the arrangement, the access 8
arrangement ceases to apply to the new landholder when 9
whichever of the following first happens: 10
(a) the new landholder agrees to an access arrangement with 11
the holder of the prospecting title concerned in accordance 12
with this Division, 13
(b) an arbitrator is appointed and determines an access 14
arrangement in relation to the new landholder in 15
accordance with this Division, 16
(c) at the end of the period of 28 days after the new landholder 17
objects, an access arrangement has not been so agreed or 18
determined. 19
However, if an arbitrator is appointed or an application for review 20
of a determination of the arbitrator is made, the arbitrator or the 21
Land and Environment Court (as the case requires) may continue 22
the existing access arrangement (with or without variation) until 23
the determination of the arbitration or review. 24
(6) Nothing in this section prevents an access arrangement being 25
agreed or determined in respect of a proposed new landholder. 26
(7) An access arrangement agreed with the holder of a prospecting 27
title does not terminate: 28
(a) if land subject to the access arrangement ceases to be 29
subject to that prospecting title and becomes subject to 30
another prospecting title, and 31
(b) if that other prospecting title is held by the same person or 32
by a person who is assigned the rights of the holder under 33
the access arrangement. 34
In that case, the arrangement becomes an access arrangement 35
under this Division in respect of that other prospecting title. 36
[8] Section 255A Restriction of power of entry: permit holders 37
Insert after section 255A (2): 38
(3) In this section, landholder includes a secondary landholder. 39
Page 6
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Amendment of Mining Act 1992 No 29 Schedule 1
[9] Sections 262, 269 and 271 1
Insert in alphabetical order in each section: 2
landholder includes a secondary landholder. 3
[10] Section 383C General immunity of landholders 4
Insert at the end of the section: 5
(2) In this section, landholder includes a secondary landholder. 6
[11] Schedule 4 Regulation making powers 7
Omit clause 10. Insert instead: 8
10 Arbitration 9
Regulating arbitrator's costs under this Act and the procedure of 10
any arbitration conducted under this Act. 11
[12] Schedule 6 Savings, transitional and other provisions 12
Insert at the end of clause 1 (1): 13
Mining and Petroleum Legislation Amendment (Land Access) 14
Act 2010, but only in relation to the amendments made to this Act 15
[13] Schedule 6 16
Insert at the end of the Schedule with appropriate Part and clause numbering: 17
Part Provisions consequent on enactment of 18
Mining and Petroleum Legislation 19
Amendment (Land Access) Act 2010 20
Definition 21
In this Part: 22
the amending Act means the Mining and Petroleum Legislation 23
Amendment (Land Access) Act 2010. 24
Existing land access arrangement 25
(1) A land access arrangement purporting to have been agreed or 26
determined under Division 2 of Part 8 of this Act before the 27
commencement of the amending Act that would have been a 28
valid arrangement if agreed or determined after that 29
commencement is taken to be (and always to have been) a valid 30
arrangement under that Division. 31
Page 7
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Schedule 1 Amendment of Mining Act 1992 No 29
(2) Any action purportedly taken before the commencement of the 1
amending Act in relation to a proposed access arrangement under 2
that Division that would have been validly taken after that 3
commencement is taken to have been (and always to have been) 4
validly taken under that Division. 5
(3) This clause does not affect any order of a court made before the 6
commencement of the amending Act. 7
(4) If, before the commencement of the amending Act, an access 8
arrangement determined by an arbitrator, or by a court following 9
a review of a determination made by an arbitrator, was set aside 10
by a court, any party to the access arrangement may apply to the 11
Land and Environment Court for the determination of an access 12
arrangement in accordance with Division 2 of Part 8 of this Act, 13
as amended by the amending Act. This subclause does not 14
prevent an access arrangement being agreed to or determined by 15
an arbitrator in accordance with that Division, as so amended. 16
Existing mining authorities 17
(1) In this clause: 18
mining authority means an authority or other authorisation 19
granted under this Act or any prospecting area constituted under 20
this Act. 21
(2) A mining authority purporting to have been granted or 22
constituted under this Act before the commencement of the 23
amending Act that would have been a valid mining authority if 24
granted or constituted after that commencement is taken to be 25
(and always to have been) a valid mining authority under this 26
Act. 27
(3) Any action purportedly taken before the commencement of the 28
amending Act in relation to a proposed mining authority under 29
this Act that would have been validly taken after that 30
commencement is taken to have been (and always to have been) 31
validly taken under this Act. 32
(4) This clause does not affect any order of a court made before the 33
commencement of the amending Act. 34
Page 8
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Amendment of Mining Amendment Act 2008 No 19 Schedule 2
Schedule 2 Amendment of Mining Amendment Act 1
2008 No 19 2
[1] Schedule 1 [99], proposed section 140 3
Omit the item. 4
[2] Schedule 1 [208] 5
Insert in alphabetical order in proposed section 242B (6): 6
landholder includes a secondary landholder. 7
[3] Schedule 1 [225] 8
Omit the item. 9
[4] Schedule 1 [226] 10
Omit "Omit section 264 (4). Insert instead:" and proposed section 264 (4). 11
Insert instead "Insert after section 264 (4):". 12
[5] Schedule 1 [273] 13
Omit proposed clause titled "Access arrangements". 14
Page 9
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Schedule 3 Amendment of Petroleum (Onshore) Act 1991 No 84
Schedule 3 Amendment of Petroleum (Onshore) Act 1
1991 No 84 2
[1] Section 3 Definitions 3
Omit paragraph (g) of the definition of landholder in section 3 (1). 4
Insert instead: 5
(g) a person identified in any register or record kept by the 6
Registrar-General as a person having an interest in the 7
land, being: 8
(i) a mortgagee in possession of the land, or 9
(ii) a lessee of the land or other person entitled to an 10
exclusive right of occupation of the land, or 11
(iii) a Minister or public authority having the benefit of 12
a covenant affecting the land that is imposed by a 13
Minister on behalf of the Crown under the Crown 14
Lands Act 1989, or 15
(iv) a Minister or public authority having an interest in 16
the land under a conservation, natural heritage or 17
biobanking agreement, or 18
(v) a person prescribed by the regulations for the 19
purposes of this paragraph, or 20
(g1) a person identified in any register or record kept by the 21
Registrar-General as a person having an interest in the 22
land, other than a person to whom paragraph (g) applies, 23
but only in a provision of this Act in which a reference to 24
a landholder is expressed to include a secondary 25
landholder, or 26
Note. See sections 101 and 141. 27
[2] Section 3 (1) 28
Insert in alphabetical order: 29
secondary landholder--see paragraph (g1) of the definition of 30
landholder. 31
Page 10
Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Amendment of Petroleum (Onshore) Act 1991 No 84 Schedule 3
[3] Section 69C 1
Omit the section. Insert instead: 2
69C Prospecting to be carried out in accordance with access 3
arrangement 4
(1) The holder of a prospecting title must not carry out prospecting 5
operations on any land except in accordance with an access 6
arrangement or arrangements applying to the land: 7
(a) agreed (orally or in writing) between the holder of the 8
prospecting title and each landholder of the land, or 9
(b) determined by an arbitrator in accordance with this Part. 10
(2) Separate access arrangements may (but need not) be agreed or 11
determined with different landholders of the same area of land, 12
for different areas of the same landholding or with respect to the 13
different matters to which access arrangements relate. 14
(3) Separate access arrangements may be made to preserve the 15
confidentiality of provisions of the arrangements, to deal with 16
persons becoming landholders at different times or for any other 17
reason. 18
[4] Section 69D Matters for which access arrangements to provide 19
Omit section 69D (1) (i). Insert instead: 20
(i) the notification to the holder of the prospecting title of 21
particulars of any person who becomes an additional 22
landholder, 23
(j) such other matters not otherwise required by or under this 24
Act or the conditions of the prospecting title as the parties 25
to the arrangement may agree to include in the 26
arrangement. 27
[5] Section 69E Holder of prospecting title to seek access arrangement 28
Omit section 69E (3). Insert instead: 29
(3) The holder of a prospecting title and a landholder of the land 30
concerned may agree (either orally or in writing and either before 31
or after the prospecting title is granted) on an access arrangement. 32
(4) If some but not all of the landholders of any particular land have 33
agreed to an access arrangement, a reference in sections 69F-69S 34
to each landholder of the land or to a party to the hearing before 35
an arbitrator does not include a reference to any of those 36
landholders who has agreed to an access arrangement. However, 37
the arbitrator may allow a landholder who has agreed to an access 38
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Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Schedule 3 Amendment of Petroleum (Onshore) Act 1991 No 84
arrangement to become a party to the hearing of the matter in 1
order to ensure consistency in the access arrangements over the 2
same land, and may, for that purpose, replace the agreed access 3
arrangement with the access arrangement determined by the 4
arbitrator. 5
(5) In this section, a reference to the holder of a prospecting title 6
includes a reference to the proposed holder of a prospecting title. 7
[6] Section 69R Review of determination 8
Insert after section 69R (6): 9
(6A) A review of a determination is to be by way of rehearing, and 10
fresh material or material in addition to, or in substitution for, the 11
material considered on the making of the determination by the 12
arbitrator may be given on the review and taken into 13
consideration by the Land and Environment Court. 14
[7] Sections 69T and 69U 15
Omit the sections. Insert instead: 16
69T Variation of access arrangements 17
(1) An access arrangement may be varied in accordance with the 18
terms of the arrangement relating to its variation. 19
(2) An access arrangement may also be varied: 20
(a) by the agreement of the parties to the arrangement, or 21
(b) with the consent of all the parties to the arrangement, by 22
the arbitrator who determined the arrangement, or 23
(c) on application by any of the parties to the arrangement, by 24
order of the Land and Environment Court. 25
(3) In this section, vary includes terminate. 26
69U Change in landholders etc 27
(1) An access arrangement with 2 or more landholders does not 28
terminate because one of those landholders ceases to be a 29
landholder of the land concerned. 30
(2) An access arrangement does not terminate because a person 31
becomes a landholder of all or any part of the land concerned 32
after the arrangement was agreed or determined. 33
(3) An access arrangement does not run with the land, and 34
accordingly a person does not (except as provided by this section) 35
become a party to the access arrangement merely because the 36
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Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Amendment of Petroleum (Onshore) Act 1991 No 84 Schedule 3
person becomes a landholder of any of the land after the access 1
arrangement was agreed or determined. 2
(4) If, after an access arrangement has been agreed or determined, a 3
person becomes a landholder of any of the land to which the 4
arrangement applies in addition to another landholder who 5
continues to be a party to the arrangement, the provisions of the 6
arrangement (other than those relating to the payment of 7
compensation) apply to the new landholder as if the new 8
landholder were a party to the arrangement, but only if the holder 9
of the prospecting title concerned has given the new landholder a 10
copy of the access arrangement. 11
(5) If the new landholder objects to the arrangement within 7 days 12
after being given a copy of the arrangement, the access 13
arrangement ceases to apply to the new landholder when 14
whichever of the following first happens: 15
(a) the new landholder agrees to an access arrangement with 16
the holder of the prospecting title concerned in accordance 17
with this Part, 18
(b) an arbitrator is appointed and determines an access 19
arrangement in relation to the new landholder in 20
accordance with this Part, 21
(c) at the end of the period of 28 days after the new landholder 22
objects, an access arrangement has not been so agreed or 23
determined. 24
However, if an arbitrator is appointed or an application for review 25
of the determination of the arbitrator is made, the arbitrator or 26
Land and Environment Court (as the case requires) may continue 27
the existing access arrangement (with or without variation) until 28
the determination of the arbitration or review. 29
(6) Nothing in this section prevents an access arrangement being 30
agreed or determined in respect of a proposed new landholder. 31
(7) An access arrangement agreed with the holder of a prospecting 32
title does not terminate: 33
(a) if land subject to the access arrangement ceases to be 34
subject to that prospecting title and becomes subject to 35
another prospecting title, and 36
(b) if that other prospecting title is held by the same person or 37
by a person who is assigned the rights of the holder under 38
the access arrangement. 39
In that case, the arrangement becomes an access arrangement 40
under this Part in respect of that other prospecting title. 41
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Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Schedule 3 Amendment of Petroleum (Onshore) Act 1991 No 84
[8] Section 101 Notice to landholder 1
Insert after section 101 (2): 2
(3) In this section, landholder includes a secondary landholder. 3
[9] Section 138 Regulations 4
Insert at the end of section 138 (1) (p): 5
, and 6
(q) regulating arbitrator's costs under this Act and the 7
procedure of any arbitration conducted under this Act. 8
[10] Section 141 9
Insert after section 140: 10
141 General immunity of landholders 11
(1) The landholder of land within which any person (other than the 12
landholder) is authorised to exercise any power or right: 13
(a) by or under this Act, or 14
(b) by any petroleum title under this Act, 15
is not subject to any action, liability, claim or demand arising as 16
a consequence of that person's acts or omissions in the exercise, 17
or purported exercise, of any such power or right. 18
(2) This section extends to anything done or omitted to be done 19
before the commencement of this section. 20
(3) In this section, landholder includes a secondary landholder. 21
[11] Schedule 1 Savings and transitional provisions 22
Insert at the end of clause 2 (1) (b): 23
Mining and Petroleum Legislation Amendment (Land Access) 24
Act 2010, but only in relation to amendments made to this Act 25
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Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Amendment of Petroleum (Onshore) Act 1991 No 84 Schedule 3
[12] Schedule 1 1
Insert at the end of the Schedule with appropriate Part and clause numbering: 2
Part Provisions consequent on enactment of 3
Mining and Petroleum Legislation 4
Amendment (Land Access) Act 2010 5
Definition 6
In this Part, the amending Act means the Mining and Petroleum 7
Legislation Amendment (Land Access) Act 2010. 8
Existing land access arrangement 9
(1) A land access arrangement purporting to have been agreed or 10
determined under Part 4A of this Act before the commencement 11
of the amending Act that would have been a valid arrangement if 12
agreed or determined after that commencement is taken to be 13
(and always to have been) a valid arrangement under that Part. 14
(2) Any action purportedly taken before the commencement of the 15
amending Act in relation to a proposed access arrangement under 16
that Part that would have been validly taken after that 17
commencement is taken to have been (and always to have been) 18
validly taken under that Part. 19
(3) This clause does not affect any order of a court made before the 20
commencement of the amending Act. 21
(4) If, before the commencement of the amending Act, an access 22
arrangement determined by an arbitrator, or by a court following 23
a review of a determination made by an arbitrator, was set aside 24
by a court, any party to the access arrangement may apply to the 25
Land and Environment Court for the determination of an access 26
arrangement in accordance with Part 4A of this Act, as amended 27
by the amending Act. This subclause does not prevent an access 28
arrangement being agreed to or determined by an arbitrator in 29
accordance with that Part, as so amended. 30
Existing petroleum titles 31
(1) A petroleum title purporting to have been granted under this Act 32
before the commencement of the amending Act that would have 33
been a valid petroleum title if granted after that commencement 34
is taken to be (and always to have been) a valid petroleum title 35
under this Act. 36
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Mining and Petroleum Legislation Amendment (Land Access) Bill 2010
Schedule 3 Amendment of Petroleum (Onshore) Act 1991 No 84
(2) Any action purportedly taken before the commencement of the 1
amending Act in relation to a proposed petroleum title under this 2
Act that would have been validly taken after that commencement 3
is taken to have been (and always to have been) validly taken 4
under this Act. 5
(3) This clause does not affect any order of a court made before the 6
commencement of the amending Act. 7
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