MERCPA 2014 – An Overview
Coal and Minerals
Outline
Introduction to the new Act
Preliminary
Dealings, caveats and associated agreements
Land Access
Mining lease and environmental authority notification
and objection processes
Overlapping coal and CSG tenements
Introduction to MERCPA 2014
Modernising Queensland’s Resources Acts (MQRA) program
– Five Acts into one over three to four years
– Rationale is a cutting ‘red-tape’ and compliance costs (consistent with
Newman 20 percent election pledge)
*Mineral and Energy (Common Provisions) Act 2014
– Passed by Parliament on 9 September after consultation process
– Comes into force on “proclamation” (when Gov’t decides), mirroring repeal
of Resources Acts
– Creates the ‘shell’ for the final Act into which provisions will be incrementally
transferred from the Resources Acts
– First step in MQRA process creates many common ‘processes’ (dealings,
caveats and registers / tenure applications) but there are also substantive
changes to law relating to land access (private and public land),
overlapping tenure (coal/CSG) and public notification and objection rights for
mining lease applicants
Preliminary
Section 3: Sets out the “main purposes” of Act – consolidate
provisions; provide for common processes; new coal/CSG
overlap regime; achieve purposes of Resources Acts.
Section 6: Sets out the relationship between this Act and the
other resources Acts. This Act has primacy.
Section 6(5): The key where there is inconsistency is
whether it is “possible” or “impossible” to comply with both
provisions.
Section 10: New concept of the “resource authority”, referring
to all exploration and production tenures under the five Acts.
Dealings, caveats and associated
agreements
Different processes and requirements for notification and
registration of ‘dealings’ across the five Acts
Lengthy and complicated when compared with equivalent
legislation in other Australian jurisdictions
Largely harmonised under the Mines Legislation (Streamlining)
Amendment Act 2012 (Qld) (intro’d online processing via
DNRM’s MinesOnline)
Further streamlining under MERCPA by introducing one set of
administrative processes that focuses on outcomes, leaving
prescriptive processes to be covered off by Regulations
Purports to reduce Government processing times, costs +
indirect savings to industry
Chapter 2 - Dealings, caveats and
associated agreements
Source: Modernising Queensland’s Resources Acts Program – Dealings, caveats and associated
agreements February 2014
Dealings
What is a dealing? Broad “catch-all” with ability to prescribe
other transactions.
‘Prescribed dealings’ require registration and Minister’s
approval to have effect
Will be prescribed by Regulation, however expect:
–
–
–
–
–
Transfer of RA (or share thereof)
Mortgage over RA (or share thereof)
Release, transfer or surrender of mortgage
Change of name of holder of RA (even if same person)
If RA is a lease, sublease of the lease, transfer of sublease (or share
thereof) and ending of sublease
‘Prohibited dealings’ have no effect
– Transfer of divided part of authorised area for RA excluding
Sublease or transfer of a sublease
– Per Regulations
Dealings
Indicative approval system retained
– Still includes ‘preconditions’ for IA that may prevent registration of
dealing where not satisfied
– IA valid for a prescribed period, but what if lapses before RA holder
is able to lodge transfer application due to circumstances outside of
its control (e.g. delays in regulatory approval or due to transfer duty
assessments)
Caveats and associated agreements
As before.
Land Access: overview
Regime generally the same
What has changed?
–
–
–
–
Opt-out agreements
Title notations
Access agreements
Restricted land
Land Access: transitionals
Land Access Code continues until replaced by new
Land Access Codes
Agreements, entry notices, waivers and consents in
force when Act commences – continue
Agreements being negotiated when the Act
commences - completed under the provisions of
the MR Act
Land Access: opt-out agreements
Landowner elects to “opt-out”
Must meet “prescribed requirements”
Binds successors and assigns
Must be recorded on title
Does not negate compensation liability
Ends:
–
–
–
–
According to the terms of the OOA
Either party may terminate during 10 BD cooling off period
when the RA expires or terminates
Entry into a CCA, deferral agreement or OOA
Land Access: title notations
CCA or OOA must be noted on property land title
Full agreements not recorded or searchable
Condition of the RA
RA holders must notify land titles registrar within 28 days
after entering CCA or OOA and when it ends
Existing CCAs must be registered – six month period for
compliance
Land Access: access land
New concept
– Only applies for EPMs & EPCs
– Not PPs, MCs, MDLs and MLs
Access land
– Land outside tenement which the holder needs to cross over
Access agreement may be oral or in writing
– If access will have a permanent impact, with each owner and occupier
– Otherwise, with the occupier
Must not “unreasonably refuse” to agree
May be referred to Land Court
Binding on future owners & occupiers and tenement
holders
Land Access: restricted land
New regime applies to tenements applied for and
granted after Act commences
Old regime under MR Act:
No access to land without owner written consent:Category A – 100m
Category B – 50m
Any activities within
600 m require CCA
Accommodation building
Stockyard
Residence or school
Business, community, sporting or
recreational purposes building
Bore, artesian well, dam or
artificial water storage
Place of worship
Cemetery or burial place
Land Access: restricted land
New regime
No surface activities, or activities impacting the
surface, without owner or occupier written consent
within “prescribed distance” of listed buildings or
areas
– Residence, place of worship, childcare centre, hospital, library,
school, cemetery, pig or poultry farm, intensive feedlot, aquaculture
and other business
200 m
No activities
without consent
Notification and objection processes
Overview
– When do the new processes apply?
– What are the changes to mining lease notification and objections
processes?
– What are the changes to the notification processes for
environmental authorities?
Notification and objection processes
When do the new processes apply?
– For mining lease applications: if a certificate of application or a
certificate of public notice has NOT been given by the time the Act
commences
– For environmental authority applications: if the EA application has
NOT been publicly notified by the time the Act commences
Note: also consider whether your ML application falls
within the Pre-Greentape Legislation (i.e. if it was
lodged prior to 31 March 2013)
MLA notification
MLA notification
– Currently, public notification of all ML and EA applications are
duplicated under both the MR Act and the EP Act.
– The current notification obligations for MLs do not differentiate
between different scales, risk levels and impact levels.
– The changes seek to reduce costs and regulatory burden, and to
streamline the application process.
MLA notification
The chief executive will issue a ‘mining lease notice’
in lieu of a COA and CPN
Mining lease notice to be given to each ‘affected
person’:
– owner of subject land
– owner of access land
– local government
MLA notification
Applicants must also give notice of the application to:
–
–
–
–
occupiers of subject land
an occupier of land necessary for access to the subject land
an owner of adjoining land
an entity that provides infrastructure wholly or partially on the
subject land e.g. electricity or telecommunication providers
Notice is to be given in accordance with a practice
manual under the Act
MLA objections
Only an ‘affected person’ can object to a mining
lease application
‘Affected person’ in this context means:
– owner of land the subject of the proposed mining lease
– owner of land necessary for access to the land the subject of the
mining lease
– an owner of adjoining land (within the meaning of new s252A)
– the relevant local government
Each ‘affected person’ may only object on certain
limited grounds specific to the land that is impacted
MLA objections
Objector type
Maximum scope of objection
Owner of subject land
Statutory compliance
Appropriate land use
Sound land use management
Impacts of mining operations on land surface
or on the owner
Owner of access land
Statutory compliance
Reasonableness of access
Owner of adjoining land
Statutory compliance
Likely impact on existing use of adjoining land
Proximity of adjoining land to the proposed
mining operations
Local government
Statutory compliance
Likely impact on infrastructure owned or
managed by the government
MLA objections
Objections can no longer be lodged on the basis that
there may be adverse environmental impacts
This removes objections on the grounds of issues
relating to dust, noise, traffic etc which are dealt with
under the environmental approval process
Land Court
If an objection is initiated by an ‘affected person’, the
Land Court may, at any stage during the hearing,
strike out all or part of an objection if:
– outside the jurisdiction of the Land Court
– frivolous or vexatious
– otherwise an abuse of the process of the Land Court
Notification and objection processes
for EAs
Applications for environmental authorities will still
require public notification although the scope of the
notification requirements has been reduced
The amendments to the EP Act mean that only ‘site
specific’ EA applications – for larger projects with
associated higher environmental risk will require
public notification
Notification and objection processes
for EAs
DEHP gives notice to the applicant and submitters of
its decision
Who can object?
– Any person that made a submission in response to the EA application
notice
– The submitter asks for submission to be taken as an objection
– The objection must exclude any part of the submission made in
relation to the Coordinator General’s ‘stated’ conditions
– The grounds of the objection cannot relate to Coordinator General’s
‘stated’ conditions
Once the EA application has been decided, both
applicants and submitters have the right to request the
matter be referred to the Land Court
Notification and objection processes
for EAs
Co-ordinated Projects:
– A submitter cannot request that any part of a submission to an EIS
that relates to a Co-ordinator General’s condition be taken to be an
objection to the EA application
– The grounds for an objection to an EA application cannot relate to a
Co-ordinator General’s condition
Notification and objection processes
for EAs
Standard projects:
– For ML applications that are not co-ordinated projects, but still require
a site-specific EA application, the public notification will only occur
under the EP Act (if at all).
– Anyone who makes a properly made submission on the EA
application (if public notification occurs) will retain the right to request
that their submission be taken as an objection to the EA.
Notification and objection processes
for EAs
Land Court will be required to direct that objections
hearing related to MLs and EAs occur at the same
time.
As with a mining lease application, the Land Court
can strike out a submitter’s objection notice.
Coal/CSG Overlapping Tenure Regime
Rationale for change
Existing framework: Mineral Resources Act
1989 (Qld) and Petroleum and Gas (Production
and Safety) Act 2004 (Qld)
Maximising Utilisation of Queensland’s Coal and
Coal Seam Gas Resources – A New Approach
to Overlapping Tenure in Queensland May 2012
(White Paper)
Industry response to Mines and Petroleum
Legislation Amendment Bill 2011
April 2014 - draft legislative framework released
for comment
September 2014 – Mineral and Energy
Resources (Common Provisions) Act 2014 (Qld)
passed
New Coal/CSG Overlapping Tenure
Regime
Direct path to grant for coal and CSG production
tenure
Right of way for coal, subject to:
– Notice periods and confirmation requirements; and
– Compensation
Information exchange
Dispute resolution process
Transitional arrangements – different provisions for
the Surat Basin
Flexibility for parties to enter into alternative
arrangements outside the legislative framework
Threshold question - will the new
legislative regime apply to your
project?
It will not apply to:
– Existing MLs
– EPCs over existing PLs
It will apply to:
– EPCs granted or applied for before the commencement date over
existing ATPs
– MLs applied for but not decided before the commencement date
over ATPs
Importantly the new regime will apply to concurrent
production lease applications
Exploration Activities
The Coal Party can undertake activities under an
EPC or MDL where those activities do not adversely
affect the activities of the Gas Party (under either an
ATP or a PL) that have already begun.
Example 1
MLA over ATP
ATP holder
gives
Concurrent
Notice
 If yes
 If no
Year 0 3 mths
MLA lodged
+
Advance Notice
(including
proposed JDP)
+
18 Months Notice
ATP
holder
lodges
PLA
 If yes
 If no
6 mths
If JDP is not
agreed
either party
can refer to
arbitration
ML granted
+
Agreed JDP in
place
Year 1
Year 1.5
IMA forms
(where no PLA
lodged)
Mining can
commence
Year 9 – 9.5
Year 11
Confirmation IMA forms
Notice
(where PLA
lodged)
Mining can
commence
Compensation: Payable for the cost of replacing ATP Major Gas Infrastructure e.g.
pilot well being used or held for future production as well as associated infrastructure.
If Concurrent Notice is given compensation liability is the same as if the ATP was a PL .
Example 2
MLA over PL or PLA- no acceleration and no
exceptional circumstances
ML granted
+
Agreed JDP in place
Duration of IMA
(10 years)
PL production
(10 years)
Year 0
MLA lodged
+
Advance Notice
(including
proposed JDP)
Year 9 – 9.5
Year 11
Confirmation
Notice
IMA forms
Mining can
commence
Year 19.5
RMA
Notice
Compensation: Payable for the cost of replacing of the PL connecting
infrastructure and the PL major gas infrastructure e.g. pipeline, water observation
bore or facility for the distillation, processing, refining, storage or transport of
petroleum, other than a distribution pipeline.
Year 21
1ST RMA
panel
commences
Example 3
MLA over PL or PLA - acceleration and no exceptional
circumstances
ML granted
+
Agreed JDP in place
Duration of IMA
(10 years)
Compensation for Lost Production
Year 0
Year 1.5
MLA lodged
+
Advance Notice
(including
proposed JDP)
+
Acceleration
Notice
+
Confirmation
Notice
IMA forms
Mining can
commence
This would be the date the
IMA forms and mining
commences if acceleration did
not occur i.e. 11 years after
the Advance Notice is given
Year 10 Year 11
RMA Notice
Year 11.5
1ST RMA
panel
commences
Compensation: Payable for :
• the cost of replacing the PL connecting infrastructure the PL major gas infrastructure
•the cost of replacing the PL minor gas infrastructure
•the value of lost production
Contracting out, ‘sort of’
Ability to ‘contract out’ of regime, but not the
mandatory requirements
Not a ‘default regime’ as envisaged
Mandatory requirements
–
–
–
–
–
–
Advance notice of mining commencement date
Agreement of JDP and lodged with Minister
Subsequent petroleum production
Concurrent applications
Information exchange
Ministerial powers
Amendments needed to ensure that CoDevelopment Agreements are transitioned
Role play
Background: The following is a discussion between an
overlapping MLA Holder and ATP Holder in months
leading up to the commencement of the new regime.
The MLA Holder is ‘gung ho’ believes it is across the
new laws – the ATP Holder is less confident and
decides to call its lawyer for advice.
Questions
?
Thank you
Energy and Resources team
www.hopgoodganim.com.au