By Andrew Goode, Mellor Olsson Lawyers.
It is hardly surprising that farmers and mining companies sometimes end up in court over the terms of access to the land mining rights, or the level of compensation. While the contentious issues are often resolved by negotiation, the bigger the mine project, and the more intensive the farming region, the more likely the courts will have to determine a dispute. I am sure that most city dwellers would be unhappy with a large mine next door with increased noise, people, dust and other consequences regardless of whether they are entitled to monetary compensation.
In New South Wales there has been an ongoing and controversial dispute between local farmers near Gunnedah and a miner seeking the right to access the farmer’s land to carry out drilling tests to decide whether to proceed with a large coal mine.
It has been reported on in national news papers and been the subject of television reports. Many of the farmers have been there for generations, and are concerned to protect the land, and the local environment as well as their livelihood.
The proposed mine, if it proceeds, will however presumably bring more jobs to the area, and increase exports from Australia, but this has to be weighed up against the potential impact on the land, water aquifers, and other environment factors.
Two local farmers issued proceedings in the Supreme Court to challenge the right of the miner to enter their land pursuant to access arrangements on conditions determined by the Mining Warden in the NSW Wardens Court.
The judge in her decision referred to “competing interests” said her decision “must be made in the context of the undoubted purpose of the Mining Act [NSW], to provide an efficient, clear and fair basis for exploration and mining of the State’s mineral resources. That requires a balancing of the competing interests of the licence holder, who is granted a title to the land under the exploration licence for which very substantial sums are paid, with the interest of the landholders”.
The Supreme Court squashed the decision of the Wardens Court which had allowed access to the land partly on the basis that the miner was required to not only negotiate with primary land owners (the farmers), but also deal with other parties who may hold an interest in the land. The Supreme Court said this included any mortgagees of the land. The miner h
Would the SA Mining Act be interpreted in the same way so that farmers and others could potentially challenge access agreements imposed by our courts if mortgagees have not been approached?
Our initial reading of South Australian Mining Act (which is currently under review in State Parliament) is that we have a narrower definition of the parties that need to be notified, and then involved in negotiations for access agreements. Our Act says the “landowner” to be notified includes persons entitled to “immediate possession” of the land. This arguably exclude mortgagees unlike New South Wales.
It may be that the miner will appeal the NSW decision (if it has not already done so). In addition, you would expect that miner, and other NSW miners to now review whether they need to go back to the “drawing board” and work through their existing access agreements.
I expect our State Government will review that NSW Court decision, and any decision on appeal, and make up its own mind whether that judgment is of any relevance to the existing SA Mining Act or its proposed amendments.
The NSW case does illustrate however that issues between farmers and miners are not easily resolved because of their competing interests.
Regardless of the outcome however, balancing the rights of farmers and the miners will continue to be a difficult one requiring compromise and negotiation, and ultimately referral to our courts if the parties cannot compromise.
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