Senate Inquiry Leaves Landowners Without Right To Refuse Access To Mining Companies

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The Australian Greens have slammed a Senate Inquiry which recommended against their Bill to give landowners the right to refuse coal and coal seam gas companies access to their land and ban the controversial mining technique known as ‘hydraulic fracturing’.

The committee heard from 377 individuals and organisations with 95 per cent of them supporting the Greens’ Bill, including the ban on ‘fracking’, a process which involves vast amounts of toxic fluid being pumped down a gas well to cause fractures in the surrounding rock.

In spite of the community support the committee, which comprised five members from the major parties along with Greens Deputy Leader Larissa Waters, found that the Bill is not an “appropriate and workable response” to landholder concerns.

The complex legal frameworks around what rights to refuse access landowners have varies depending on the state or territory, but because the Crown technically owns mineral resources, when mining rights are granted the usual entitlements of landowners are diminished.

Across all jurisdictions there is typically a right to compensation before mining companies are granted access for damage arising as a result, and bans on exploration within certain distances of buildings.

However, the committee did note the imbalance in bargaining power between landowners and large companies with comparatively vast resources, particularly given that mining companies are effectively entitled to access the resources covered by their government-given mining rights.

“It’s clear to the community that the balance between big mining companies and landholders is hopelessly skewed towards big coal and gas,” said Waters, who has waged a concerted campaign to secure greater rights for landowners throughout successive Parliaments.

“The big parties seem to ignore this gross inequity because of the massive political donations they take from big mining companies,” she said.

In her submission to the inquiry Kate Galloway, a senior lecturer at James Cook University’s College of Business, Law and Governance, noted that while to some extent “compensation equalises the respective values of the interests at stake…the exercise of the mineral rights alters what might be called the property itself”.

“Secondly,” Galloway noted, “while ostensibly a narrower bundle of rights, the mineral rights operate despite the landholder’s rights, affecting the extent of their ownership”.

If it became law, Waters’ Bill would create an outright ban on ‘fracking’ and introduce aggressive new penalties for mining and coal seam gas companies that access land without the full and informed permission of landowners.

Image: Thom Mitchell

However, in recommending against that outcome, the committee noted such a regime “could introduce what is essentially akin to a private ownership scheme for certain resources”.

“Large amounts of compensation that private landholders may secure as a result of this would reduce the wider public benefit that arises from state ownership of the resources,” the report said.

“The committee considers that this bill is an excessive and unworkable response to concerns that landholders may have about gas and coal activities.

“The committee also does not consider that it was provided with sufficient credible scientific evidence during the inquiry to justify a ban on hydraulic fracturing.”

In their dissenting report the Australian Greens said community support was behind them, not the major parties. “The chronic power imbalance between landholders and wealthy multinational coal and gas companies underpins every interaction, and hopelessly disadvantages landholders,” the report said.

“Landholders must be given the legal right to decide that they would prefer to be able to keep farming or living on their land, and for their children and grandchildren to have that option, rather than be forced to negotiate merely the price of entry with big coal and gas companies.”

In relation to the ban on ‘fracking’ the Greens asserted that “the evidence from across Australia and around the world has been mounting over recent years,” and argued Australia must move away from fossil fuels rather than adopt more hazardous techniques for their extraction.

In his submission the President of the Lock the Gate Alliance Drew Hutton said the current system amounts to “negotiation with a gun at the head of the landowner”.

The Greens have vowed to continue to push the issue, despite the complex legal realities that surround land access for resource extraction and the obvious hesitance of the major parties to interfere with what has traditionally been a matter for the states.

“Eventually the old parties will have to listen to the community instead of their big mining donors,” Waters said.

Thom Mitchell

Thom Mitchell is New Matilda's Environment Reporter.

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