ARBITRATION AND THE LAND AND ENVIRONMENT COURT

 

If you and an explorer cannot reach agreement on a Land Access Arrangement then either you or the explorer can apply to have an arbitrator appointed. To date no landholder in NSW has been required to participate in arbitration for land access for coal seam gas exploration. This section overviews arbitration and the Land and Environment Court.

 

What is arbitration?
 

If an explorer wants to access your land and you and the explorer cannot reach agreement on a land access arrangement then either you or the explorer can apply for arbitration to resolve the disagreement.

 

Two matters will be decided through arbitration:

 

  • whether the explorer will have access to your land, and

  • if access is granted, what the terms and conditions of that access will be.

 

An arbitration hearing is overseen by an arbitrator who has either been agreed by both you and the explorer or appointed by the Secretary of Department of Industry.

 

If appointed by the Secretary, the arbitrator will be chosen from a panel of arbitrators appointed by the Minister for Industry, Resources and Energy after consultation with the Ministers responsible for Agriculture and Aboriginal Affairs.

 

For more information on negotiating a land access arrangement see the chapters:

Land Access

and

Land Access Checklist

 

When can I be taken to arbitration?

 

Once you have been served with written notice of the explorer’s intention to seek an access arrangement with you, the law says you have 28 days to commence negotiations on a land access arrangement.

 

If you and the explorer haven’t commenced negotiations after 28 days then the explorer may write to you asking you to agree to have an arbitrator appointed.[i]

 

If you and the explorer do not reach an agreement about the appointment of an arbitrator after a further 28 days then either you or the explorer can apply to the Director-General of the Department of Industry to have one appointed.[ii]

 

Negotiations on a land access arrangement will often go beyond 28 days, however these time periods are specified in legislation and are intended to prevent the negotiation process from stalling. 

How will I know if an arbitrator has been appointed?

 

When an arbitrator is appointed, they are required to notify you as soon as possible.[iii]

 

The arbitration hearing

 

Once an arbitrator is appointed they will organise a hearing time and decide on the procedures for the hearing. The hearing should be organised for a time that both you and the explorer can agree on.

 

The hearing is meant to be informal and conducted ‘without regard to technicalities or legal forms.’[iv] However it is still recommended that, if possible, you be represented by a lawyer at the hearing to help you protect your interests.

 

For more information on being represented by a lawyer at an arbitration hearing see the section:

Can I have legal representation at the arbitration hearing?

 

The arbitrator will first attempt to conciliate agreement on a land access arrangement between you and the explorer.  If agreement can’t be reached through conciliation, the arbitrator will decide whether access will be granted and the terms and conditions of the access.

 

An arbitration hearing may include an on-site inspection of your land[v] so the arbitrator can see where proposed exploration activity would occur. This will also give you an opportunity to make your case that access should not be granted or for the restrictions you would like to see to exploration activity on your land.

For more information on obtaining legal advice see the chapter:

Getting legal advice

 

How should I prepare for arbitration?

 

Before the arbitration hearing and before the arbitrator visits your land you should think about:

 

  • whether you want to argue that access should not be granted to your land, and

  • what terms and conditions you would like to see in any land access arrangement. 

 

If you want to argue that your land should not be accessed for exploration then you could consider making a submission as to why you believe access should be denied.

 

However, arbitrators have generally granted access in mining cases, and no landholder has been taken to arbitration for coal seam gas exploration in NSW.

 

Even if you want to argue that land access should not be granted to the explorer you should still consider what terms and conditions you want in a land access arrangement to protect your family, business, land and environment.

 

For more information on land access terms and conditions see the chapter:

Land Access Checklist

 

Can I have legal representation at the arbitration hearing?

 

Under the law as it is currently written you may only be represented by your legal representative at an arbitration hearing if the explorer and the arbitrator agree. Likewise, an explorer may only be represented by their legal representative at an arbitration hearing if you and the arbitrator agree. [vi]

 

However, in July 2013 the NSW Government announced its intention to amend the law to allow a landholder legal representation at arbitration without the need for the explorer and arbitrator to agree.

 

The NSW Government again committed to implementing the change in response to the Walker Review of the arbitration framework in the State which was delivered in the second half of 2014.

 

It is a good idea to have legal representation as it is likely that the explorer’s representative will be more experienced with land access negotiations and arbitration than you will be.

 

Can I have an agent at arbitration instead of a legal representative?

You have the right to have an agent who is not a legal practitioner represent you at arbitration.[vii] Under the current law, even if your legal representative is not permitted by the explorer or arbitrator, you will still be allowed to be represented by an agent.  

 

How will I pay for legal representation?

The law requires the explorer to pay ‘reasonable costs of the landholder in obtaining initial advice about the making of the arrangement.’[viii] The explorer is not required to pay for the landholder’s legal representation at arbitration.

 

You should still get a quote from your lawyer and talk to the explorer to see if they will pay for your legal representation at the hearing.

For more information on getting legal advice see the chapter:

Getting legal advice

 

What will the arbitrator do?     

 

The arbitrator has three main tasks which are described in legislation. They are:

 

  • to conciliate a land access arrangement agreeable to both you and the explorer,

  • if a settlement is not possible, to determine whether your land will be accessed, and

  • if access is to be granted, what the terms and conditions of access will be.

 

Conciliation

The arbitrator will first attempt to bring you and the explorer to a settlement acceptable to you both.[ix]

 

During conciliation, if you wish access to be denied, you should make submissions as to why you want access to be denied. Bear in mind that generally access has been granted by arbitrators, so you should also consider what terms and conditions you would like see in an access arrangement as well.  

 

If an access arrangement is reached through conciliation, the arrangement will form the final arrangement between you and the explorer. The arbitrator cannot alter or add to this arrangement.


If you and the explorer cannot agree on a land access arrangement through conciliation, then the arbitrator can make an ‘interim determination’.

 

Make an interim determination

If the arbitrator cannot bring you and the explorer to agreement on land access arrangements through conciliation then the arbitrator can make an interim determination.

 

The interim determination will decide:[x]

 

  • whether access will be granted, and

  • if access is to be granted, what the terms and conditions of access will be.

 

The interim determination will take the form of a draft land access arrangement.   

 

Review of the arbitrator’s interim determination

If you are unhappy with the arbitrator’s interim determination you can apply to the arbitrator asking they reconsider their decision. You have 14 days from the date you are notified of the arbitrator’s interim determination to seek a review.[xi]

 

You can apply for a reconsideration of the arbitrator’s:

 

  • decision on whether to grant access to your land, or

  • the draft access arrangement.


The explorer is also able to ask the arbitrator to reconsider the decision if they are unhappy with the arrangement.
 

After receiving this application, the arbitrator will organise another hearing.205 After this hearing the arbitrator will make a final determination.

 

Make a final determination

If you applied for a review of the arbitrator’s interim determination, then the final determination will be written by the arbitrator on the conclusion of the hearing.

 

If you did not apply for review of the interim determination within 14 days, then the first decision will be binding on both you and the explorer.

 

The final determination will decide:

 

  • whether the explorer is granted access to your land, and

  • the terms of the final land access arrangement. 

 

The arbitrator must give you a written copy of their final determination and draft access arrangement as soon as possible after making their decision.[xii]

 

Any appeal of the arbitrator’s final decision must be made to the Land and Environment Court.

 

Costs

 

The costs of the arbitrator are paid by the explorer. All other costs incurred by you are borne by you.

 

The Land and Environment Court 

 

The arbitrator’s final decision will be in the form of a final, binding land access arrangement. The only way you can appeal the arbitrator’s final access arrangement is in the Land and Environment Court.

 

The arbitrator will have no role in these proceedings which will be heard instead by a Judge or a Commissioner. The decision of the Land and Environment Court is final and binding unless appealed.

 

When can I appeal to the Land and Environment Court?

If you asked for a review of the arbitrator’s interim determination you have 28 days to apply for review of the arbitrator’s final determination in the Land and Environment Court.[xiii]

 

If you did not apply for a review of the arbitrator’s interim determination and want to appeal the final determination then you have 14 days to appeal to the Land and Environment Court.

 

 

[i]     Mining Act 1992 (NSW) s 143; Petroleum (Onshore) Act 1991 (NSW) s 69F.

[ii]    Mining Act 1992 (NSW) s 144; Petroleum (Onshore) Act 1991 (NSW) s 69G.

[iii]   Mining Act 1992 (NSW) s 145; Petroleum (Onshore) Act 1991 (NSW) s 69H.

[iv]   Mining Act 1992 (NSW) s 148; Petroleum (Onshore) Act 1991 (NSW) s 69K.

[v]    NSW Government Arbitration process for access to lands for exploration (NSW Trade and Investment Division of Resources and Energy).

[vi]   Mining Act 1992 (NSW) s 146; Petroleum (Onshore) Act 1991 (NSW) s 69I.

[vii]  Mining Act 1992 (NSW) s 145; Petroleum (Onshore) Act 1991 (NSW) s 69I.

[viii] Mining Act 1992 (NSW) s 141; Petroleum (Onshore) Act 1991 (NSW) s 69D.

[ix]   Mining Act 1992 (NSW) s 147; Petroleum (Onshore) Act 1991 (NSW) s 69J .  

[x]    Mining Act 1992 (NSW) s 149; Petroleum (Onshore) Act 1991 (NSW) s 69L.

[xi]   Mining Act 1992 (NSW) s 150; Petroleum (Onshore) Act 1991 (NSW) s 69M.

[xii]  Mining Act 1992 (NSW) s 149; Petroleum (Onshore) Act 1991 (NSW) s 69L.  

[xiii] Mining Act 1992 (NSW) s 155; Petroleum (Onshore) Act 1991 (NSW) s 69R.

 

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