The Mining Act 1992 and the Petroleum (Onshore) Act 1991 provides that the holder of a prospecting title (an exploration licence or an assessment lease) may not carry out prospecting operations on any land otherwise than in accordance with an access arrangement agreed with each landholder or determined by an arbitrator.

An access arrangement is required with native title holders unless:-

the licence was granted or renewed after compliance with the “Right to Negotiate” provisions of the Commonwealth Native Title Act 1993 [Refer to Section 138 of the Mining Act 1992 or Section 69A of the Petroleum (Onshore) Act 1991]; or

a registered indigenous land use agreement provides that an access arrangement is not required [Refer to Section 138 of the Mining Act 1992 or Section 69A of the Petroleum (Onshore) Act 1991]; or

after diligent inquiry, in the manner specified in Section 383B(3) of the Mining Act 1992 or Section 134B(3) of the Petroleum (Onshore) Act 1991, the native title holder cannot be found or identified.

Arbitrators should ensure that discussions are as informal as possible. Some part of the discussions should be conducted on the land in question, subject to the approval of the landholder.

These guidelines aim to secure a uniform approach. They may also act as a ready reference for arbitrators (who may only be called upon infrequently) and to help landholders and mineral explorers.

Basic principles for arbitrators

Minerals may be the property of the Crown, the landholder or another party. Mineral explorers (ie. the holders of Exploration Licences and Assessment Leases) should have reasonable access to land in order to determine the occurrence, nature and extent of mineral deposits.

The purpose of the access to land procedures is to ensure the orderly search for minerals whilst recognising the rights of landholders to conduct their activities free from unreasonable interference or disturbance.

It needs to be stressed that the legislation applies only to access for mineral exploration. There are different arrangements which apply to mining which give the landholder the right to decline entry to land determined (by the Director-General of Department of Primary Industries (Agriculture)) to be agricultural land within the meaning of the Mining Act 1992.

No landholder should be expected to suffer a loss resulting from interference to the operations of his or her enterprise without compensation. The normal rights and courtesies associated with private ownership of property are to be protected.

An access arrangement should provide for proper compensation for loss or interference. It should also include provisions to minimise loss or interference - for example, measures to prevent the introduction of disease or weeds, or which take into account periods of crop harvesting or animal breeding. However, this should not preclude proper compensation agreed between the parties for damage to crops or indeed the purchase of crops that are nearing harvest maturity.

Appointment of arbitrator

Arbitrators can be appointed in two ways:

• either by mutual agreement between the parties: or
• by the Director-General of the Department of Primary Industries

In the first case the arbitrator may be a local citizen held in high repute. It may be a local councillor or a local businessman. This person has the same rights, protection and obligation as an arbitrator appointed by the Director-General. The second type of arbitrator is appointed for each case from a panel appointed by the Minister for Mineral Resources after consultation with the Minister for Primary Industries and the Minister for Aboriginal Affairs.

Duties of the arbitrator

Arrangement of the Hearing

It is the arbitrator who sets the time and place for a hearing. It is recommended however that, wherever possible, this should be mutually agreed between the parties.

The arbitrator must serve notice on the parties stating that he or she has been appointed and giving the time and place for the hearing. It is recommended that the hearing should be conducted at a convenient location neutral to both parties but that part of the hearing should include on site inspection to observe local conditions. Arrangements have been made for panel arbitrators to be able to approach Clerks of the Local Courts to obtain a room at Local Court Houses (where available) for the purpose of a hearing. In regard to other arbitrators it is suggested that they liaise with the mineral explorer to arrange a suitable room for a hearing. All landholders (including native title holders) involved must be served with a notice. Procedures for serving a notice are contained in the Act.

The arbitrator may vary the time and place for the hearing but a further notice must be served.

Procedures of the Hearing

The hearings are intended to be informal and consider the issues on their merit. The arbitrator has the power to determine the form and procedures of the hearing. The legislation specifically states that the hearings are to be conducted “… without regard for technicalities or legal forms.”

This is a particularly important power if the arbitrator has chosen to allow legal representation (see Who Should Appear at the Hearing) and considers that legal forms and technicalities are being used to obscure the issues. He has full power to redirect the way in which the case is being presented.

The hearing can proceed in the absence of a party to the hearing. There is adequate provision for hearing dates to be altered or for representation by an agent (see Who Should Appear at the Hearing). Both parties can agree to withdraw from a hearing before the hearing concludes, but they must do so in writing, signed by all parties and served on the arbitrator.

Who Should Appear at the Hearing?

A party to a hearing may be represented by either an agent who is not a Australian legal practitioner, or, with the agreement of the parties and leave of the arbitrator, by an Australian legal practitioner.

A Conciliated Arrangement

An arbitrator’s first duty is to bring the parties to a conciliated arrangement. If the parties reach an arrangement under the arbitrator’s conciliation then the arbitrator is bound to make the arrangement his determination. He or she cannot add to or qualify the arrangement.

If not, the Arbitrator Decides

If the differences between the parties cannot be settled by conciliation then the arbitrator is bound to make a decision on the arrangement for access. This decision is known as an interim determination. As soon as possible after the end of a hearing, the arbitrator must reduce the determination to writing and serve a copy of his determination together with a copy of any draft access arrangement, on the parties.

The reason for this decision to be styled as an interim determination is to allow for its review by the arbitrator at the request of either party. This gives an opportunity for further non-legalistic review to avoid the issue passing through to the next stage - a formal appeal to the Land and Environment Court. Within 14 days of the interim determination having being served, any party may approach the arbitrator seeking a reconsideration of the question of access or variation to the draft access arrangement. It may be that a point has been misunderstood by the arbitrator or that relevant arguments were overlooked by one of the parties. If this happens then a new time and place is to be set by the arbitrator to continue the hearing (see Review of Arbitrator’s Determination). Following the continued hearing the arbitrator serves his decision in writing as a final determination.

If the parties do not approach the arbitrator within 14 days, the interim determination becomes the arbitrator’s final determination.

Matters to be determined by the arbitrator

The first matter to be determined is whether the holder should have access to the land concerned. The arbitrator is able to deny access for exploration to all or part of the land if this is justified. If access is to be permitted then the conditions of access must be determined.

The Act gives some guidance on matters to be included in an access arrangement. These matters include:

1. the periods during which the licence holder is permitted access to the land;
2. the parts of the land on which the licence holder may prospect and the means by which he may gain access to those parts of the land;
3. the kinds of prospecting operations that may be carried out on the land;
4. the conditions to be observed by the licence holder in prospecting on the land;
5. the things which the licence holder must do to protect the environment while having access to and prospecting on the land;
6. the compensation to be paid to any landholder as a consequence of the licence holder prospecting on the land;
7. the manner of resolving any dispute arising in connection with the arrangement;
8. the manner of varying the arrangement;
9. such other matters as the parties to the arrangement may agree to include in the arrangement.

It should be noted that this is not an inclusive listing and not all of the matters have to be covered in an access arrangement.

The arbitrator is bound to assess compensation where a determination is made.

Compliance with arrangement

Any access arrangement may contain the following provisions as to compliance in addition to the right of the landholder (Section 141(4) of the Mining Act 1992 or Section 69D(4) of the Petroleum (Onshore) Act 1991) to deny further access to the explorer in the event of an explorer contravening an access arrangement. A supervisor may be appointed by the explorer with the responsibility for ensuring that all conditions of access and precautions be observed by explorers and their staff and sub-contractors. The supervisor will normally be the senior representative of the explorer and will keep in close contact with the landholder.

In the event of any failure to observe the terms of the arrangement, the landholder shall:

1. notify the field supervisor or head office contact;
2. have the right to suspend further entry and the matter will then be resolved either by mutual agreement or submitted to an arbitrator for determination. Arbitrators should note that there is no legislative basis for their involvement in dispute resolution although it would be in keeping with the spirit of the legislation. To do so would be a private matter at the discretion of the arbitrator and the rights and protections provided for in the legislation would not apply in these circumstances;
3. refer any outstanding dispute relating to the arrangement, including levels of compensation to the Land and Environment Court. It should be noted that an access arrangement represents a contract between the parties and breach may be remedied by appeal to the Land and Environment Court.

Note: Section 141(4) and Section 69D(4) of the Petroleum (Onshore) Act 1991 specifies that access may be denied until;

1. the holder ceases such contravention; or
2. the contravention is remedied to the reasonable satisfaction of the landholder.

Compensation arrangements

Landholders are entitled to compensation when access arrangements are made. This matter may be included in the access arrangement or in a conciliated arrangement. Compensation must be provided for in an arrangement determined by an arbitrator.

Whilst it is possible to reach a compensation arrangement outside the access arrangement such options should be discouraged. “Stand alone” compensation agreements must comply with certain provisions laid down by the Mining Act and Petroleum (Onshore) Act 1991, putting in question the validity of any compensation agreement which does not comply with those requirements.

The arbitrator's costs

The costs of the arbitrator are to be borne by the mineral explorer. This includes travel, accommodation, meal and car allowances as well as remuneration. This would include the cost of any support staff such as a typist or stenographer. The remuneration for the arbitrators appointed by the Minister for Mineral Resources has been set at $700 per day. Other allowances will be determined by the Minister.

A person seeking the appointment of one of the Minister’s panel of arbitrators should complete the application form “Appointment of an Arbitrator” which can be downloaded from the DPI Website.

At the conclusion of the arbitration process the Department will invoice the mineral explorer the associated costs of the arbitrator.   All other costs incurred by each of the parties are to be borne by those parties. If, for example, a party chose to be advised by, say, an  agricultural economist then that party would have to bear that cost. The arbitrator is not empowered to consider any issue of costs.

Liability

The arbitrator is protected against legal action for any action directly authorised by the Act as long as the arbitrator acted in good faith.

Review of the arbitrator's determination

The arbitrator is obliged to make an interim determination. Within 14 days of this being served on the parties any party can approach the arbitrator to have the determination reviewed. The arbitrator must reconvene the hearing. It is conceivable that this could be achieved by telephone rather than “on site”. However, if this is done all parties must be able to hear what is said by the other parties and be able to participate in the discussion. A conference called for up to ten participants may be arranged through Telstra (telephone 011) and should be booked by the explorer for a time set by the arbitrator. The costs will be borne by the explorer. This may be a cost and time efficient way of dealing with minor problems. However major variations from the draft may need to be discussed on site or at a convenient neutral location.

Following the arbitrator’s final decision being served there is a right of appeal to the Land and Environment Court. The aggrieved party is required to accompany its appeal application with a copy of the arbitrated arrangement. There should be no involvement by the arbitrator in this process.

Varying the arbitrated arrangements

An access arrangement determined by an arbitrator may be varied by the arbitrator with the consent of all parties to the arrangement.

Duration of access arrangements

An access arrangement will normally be for the duration of the exploration licence or assessment lease or until the licence or lease is transferred to another party or until a date specified in the arrangement or until ownership of the subject property changes or until the landholder dies.

It is important to note that an access arrangement is not an “encumbrance” on the land.

Where can I go for help?

Officers of the Department of Primary Industries (Mineral Resources) Titles Branch would be pleased to assist with any inquiries a landholder, mineral explorer, arbitrator or other person may have concerning these access to lands provisions.

For more information contact Titles Branch
Phone: 1300 736 122