Fair Trading (Mining And Resources Industry Land Access Dispute Resolution Code) Regulations 2018
The Mining and Resources Industry Land Access Dispute Resolution Code (the Code) promotes the successful resolution of mining related land access disputes in a streamlined and balanced manner.
Minerals are the property of the Crown in South Australia and are managed on behalf of all South Australians. Access to the minerals is controlled through the Mining Act 1971 and the Mining Regulations 2011, and access to petroleum is controlled through the Petroleum and Geothermal Energy Act 2000 and Petroleum Regulations 2000. These Acts and Regulations establish a strict regulatory framework for access to land, environmental management and the payment of fees and mineral royalties.
Factors relating to land access are numerous and complex, and disputes about access have the potential to end up in costly, time-consuming and stressful litigation.
The Code sets out a series of steps or actions that can be taken by the Office of the South Australian Small Business Commissioner (SASBC) to help bring parties in dispute together, with the intention of assisting them and resolving the dispute in a timely and mutually beneficial manner.
The Code covers disputes between a farmer and one or more mining or resource operators over access to land used by the farmer for the business of primary production.
This includes the business of:
- poultry farming
- dairy farming
- forestry or any other business consisting of the cultivation of soils
- the gathering in of crops
- the rearing of livestock
- the propagation or harvesting of fish or other aquatic organisms.
The Code also deals with business related disputes between participants in the mining and resource industry and local and state government.
The Code helps participants in the industry by providing mandatory alternative dispute resolution process on a no or low cost basis overseen by the Small Business Commissioner.
Farmers are strongly encouraged to seek advice as soon as they are approached by a resource company.
Information sources include Primary Producers SA, the Department for Energy and Mining (DEM) and the Department of Primary Industries and Regions South Australia (PIRSA).
A land access agreement may be drafted by a lawyer, the miner and/or the farmer. It should specify the conditions that have been negotiated and agreed to by the parties; for example, the timing of entry and/or method used by a miner to communicate with the
farmer. This is only a starting point for negotiations. It is recommended to seek legal advice when negotiating and before signing a Land Use Agreement, as it is a legally binding document.
It is important to note that an application to the SASBC to mediate a particular land access matter is not a replacement for lodging an objection to a notice of entry with the relevant court, this is the responsibility of the landowner.
The Commissioner will endeavour to complete mediation within the three month objection period of the Mining Act 1971 or within the two month period of fixed mediation under the Petroleum and Geothermal Energy Act 2000. However, the Commissioner does not have the power of the Environment, Resources and Development or Warden’s Courts, and cannot make determinations to prevent entry (only the Court can make that determination), nor can the Commissioner extend the right to object.
Breaches of the code can attract:
- a civil expiation fee of $4,000 for a corporation and $500 for a natural person
- SASBC may take court action to obtain a civil penalty of up to $50,000 for a corporation or $10,000 for a natural person.
To view the Fair Trading (Mining And Resources Industry Land Access Dispute Resolution Code) Regulations 2018 click here.