Views:
Ref: MG/AF/GG23080
4 December 2023 Department of Resources

By Email: resources.policy@resources.qld.gov.au


Dear Sir/Madam

Re: Coexistence Institutions & CSG-Induced Subsidence Management Framework

Thank you for the opportunity to provide comment on the Coexistence Institutions & CSG-induced Subsidence Management Framework.

About AgForce
AgForce is a peak organisation representing Queensland’s cane, cattle, grain and sheep, wool & goat producers. The cane, beef, broadacre cropping and sheep, wool & goat industries in Queensland generated around $10.4 billion in on-farm value of production in 2021-22. AgForce’s purpose is to advance sustainable agribusiness and strives to ensure the long-term growth, viability, competitiveness and profitability of these industries.
Over 6,000 farmers, individuals and businesses provide support to AgForce through membership. Our members own and manage around 55 million hectares, or a third of the state’s land area. Queensland producers provide high-quality food and fibre to Australian and overseas consumers, contribute significantly to the social fabric of regional, rural and remote communities, as well as deliver stewardship of the state’s natural environment.

AgForce has a strong policy position on representing members’ interests in the protection of land use and is supportive of efforts by all authorities, at federal, state and local levels, that enable the effective coexistence of agriculture with other forms of land use. Please see Appendix 1 where the Land Use Protection Principles of AgForce members, as endorsed by the AgForce Queensland Farmers’ Limited Board, are presented as an overall expectation of what broadacre agricultural industry commits to when seeking coexistence with other sectors.
Representing owners of significant land and water assets within the state, AgForce welcomes the government’s recognition of the rights and interests of landowners (owners and leaseholders) in relation to resource sector activities (and ideally renewable energy and others) that seek to co-exist with them. This co-existence must operate effectively at the single paddock, to property, to regional, to sector and state levels.
 
It is essential that mutually beneficial relationships between landowners and resource sector participants (and ideally renewable energy and others) are sought and that agricultural land and water assets are protected, with impacts avoided, or minimised if unavoidable, wherever possible.
While there is no recognition of the option in the discussion paper, it should not be assumed that co- existence can effectively occur everywhere. Some areas of intensively used farmland, or of specific agricultural land uses, or of endangered or fragile ecosystems may be impacted to such a degree that the precautionary principle should be applied and so resource or other alternate activities do not proceed on that land.

AgForce recognises that mineral or energy resources are owned by the Crown on behalf of all Queenslanders and access to those resources can be enabled for the benefit of all of society. However, it must also be recognised that the very limited area of high-quality arable land in the state must be protected from alienating uses and prioritised for food and fibre production for current and future generations in perpetuity. This public good benefit of resource development is also why landowners, whether they be in tenure areas or within tenure area impact zones, should not be required to cover the costs of having other uses affect their land and water resources.
AgForce considers that landholder freehold tenure rights should be explicitly recognised and that the drilling of directional or vertical wells underneath a landholder’s property only be authorised with the appropriate protections of a Conduct & Compensation Agreement (CCA), including alternative dispute resolution processes and legal certainty that their interests will be protected.
Problems arise due to the failure of those not engaged in, or qualified in relation to modern farming systems, to recognise that those systems are complex and require specialist knowledge for them to understand key issues and interpretation of legislation, regulations and guidelines in relation to those farming systems.

AgForce strongly disagrees with the omission of provision for payment for landholder time and information and the omission of protection of landholder information from the proposed framework. Given their pre-existing rights to use of the land and water assets, landholders who are by law required to accommodate alternative land uses should not be required to take time away from their business, family and personal life, nor provide that time for free, nor pay for co-existence institutions or their activities, nor for subsidence management framework related matters.
It is essential that, similar to conduct and compensation agreement arrangements, the proposed framework provides for payment of landholder time and information as well as fully paid legal, expert and valuation advice.

Part A: Proposed Amendments Related to Risk-Based Management of CSG-Induced Subsidence
This submission is made based on the limitation that the proposed new Mineral Energy Resources Regulations (MERCP) is not yet available for consultation.

Expansion of the Office of Groundwater Impact Assessment’s Role
AgForce recognises and respects the role of the Office of Groundwater Impact Assessment (OGIA) in the monitoring and management of subsidence resulting from coal seam gas (CSG) mining as well as groundwater impacts from coal mining and CSG mining.

However, AgForce members bear critical risk in relation to groundwater impacts and subsidence impacts resulting from resource activities which must be recognised and managed with modern best practice protocols implemented for Transparency, Governance, Accountability and Oversight of the OGIA.
 
Noting that such protocols also protect those within and in charge of the OGIA, AgForce considers the proposed action of the OGIA “seeking an independent review of the core elements of the (subsidence) assessment” to be insufficient protection of AgForce member interests.
The Queensland Financial and Performance Management Standard 2019 (FPMS) provides guidance on modern, best-practice governance frameworks1 and applies to statutory bodies2. Sub-section (6)(3)(b) of FPMS says ‘Governance’:

“ includes the concepts of -
  1. openness, integrity and accountability; and
  2. due care; and
  3. public defensibility; and … ”
This standard, which is directed at financial and performance management, provides useful concepts which apply in a general sense to the minimisation of a broad range of risks, including those borne by AgForce members in relation to groundwater and CSG-induced subsidence measurement, monitoring and management.

AgForce considers that for the protection of AgForce member interests, it would be modern best practice good governance for a transparent and accountable independent panel of stakeholders to be introduced to oversee the functions of the OGIA.

AgForce considers that the OGIA remit should be expanded to cover all the state, all water impact related matters including subsidence and include emerging uses such as carbon capture and storage. A role in establishing robust pre-activity baselines is also indicated.

Subsidence Management Framework
AgForce supports the introduction of a subsidence management framework and recognises that CSG- induced subsidence may not impact all areas of Strategic Cropping Land (SCL), Priority Agricultural Areas (PAA) and Priority Agricultural Land Use (PALU) in the same way.
However, AgForce strongly disagrees with the proposed removal of recognition and management of CSG-induced subsidence impacts from the Regional Planning Interests Act 2014 (RPI Act). Exclusion of considerations of the significant impact of CSG-induced subsidence from the RPI Act would be contrary to the State Planning Policy (SPP) state interest guideline—agriculture, weaken landholder protection, remove existing protections with no compensation and represent a departure from the legislated purposes of the RPI Act, which include managing the impacts of resource activities on areas of regional interest.
The management of subsidence impacts to areas of regional interest (ie, SCL, PAA & PALU) must remain within RPI Act 2014 as it is separate to the mechanism of subsidence compensation.
The mechanism of subsidence compensation has similarities to existing Mineral and Energy (Common Provisions) Act 2014 (MERCP Act) provisions, but must also extend to land and landholders without resource infrastructure on/in their land and also to land and landholders outside resource tenure areas but which/who are impacted by the resource activity.


1 https://www.legislation.qld.gov.au/view/html/inforce/current/sl-2019-0182#sec.6
2 https://www.legislation.qld.gov.au/view/html/current/act-2009-009#sec.9
 
 
These landholders have pre-existing businesses and land and water rights and are being required by law to accommodate subsidence impacts without a clear pathway to compensation or mechanism to achieve compensation.

AgForce supports the Gasfields Commission Queensland (GFCQ) recommendation that off-tenure landholders be protected and supports the government response that protection be provided within this proposed framework.

To avoid fragmentation and duplication, AgForce considers that the processes within the proposed MERCP Act mechanism of subsidence compensation are able to inform the decision on management of subsidence impacts under the RPI Act in relation to circumstances where consequences to SCL, PAA and PALU are to the degree that resources or other alternative activities do not proceed on the land.
AgForce is concerned that the proposed 3-year interval for the ‘Subsidence Impact Report’ is too long given the degree of scientific uncertainty about CSG-induced subsidence and the finding of OGIA in its 2021 Underground Water Impact Report for the Surat Basin Cumulative Management Area (UWIR) that a cone of depressurisation extends away from a CSG well typically to about 10 km within 2 to 3 years of production commencement (in the Surat Basin)3 at higher rates initially4 and subsidence between the 2021 UWIR and its 2022 annual report increased from 100mm to 120mm5 in and around the Condamine Alluvium.

AgForce supports the proposal for OGIA to also directly undertake monitoring and provide a summary of trends, review the risk assessment and any consequential changes to the requirement of farm field assessment on an annual basis.

Subsidence Management Framework Requirements
Subsidence Management Area Declared
AgForce supports this proposal and considers that a Queensland Globe and GeoResGlobe ‘layer’ will
be required for the information to be accessible to landholders and the public.

Transitional Risk Assessment Report
AgForce supports this proposal but has concerns in relation to:
  • The ‘baseline data collection plan in priority areas’ provides no information as to what will be considered to be a ‘priority area’. Large areas of SCL and PAA are already subsiding from CSG production wells and incremental subsidence is more difficult to measure. All these areas should be ‘priority areas’ on commencement of the subsidence management framework (SMF).
  • The proposal lacks sufficient detail and is unclear in relation to how a baseline can/is to be established in the large areas of CSG resource activity which are already subsiding from CSG mining activities.
  • Areas already subsiding from CSG production wells prior to the 2020 LiDAR data capture will need additional methodology because it is the incremental subsidence which will cause the most impact to farming operations and it is more difficult to measure smaller amounts of subsidence.

3 https://www.rdmw.qld.gov.au/    data/assets/pdf_file/0008/1584728/uwir-2021-report.pdf page 100
4 https://www.rdmw.qld.gov.au/    data/assets/pdf_file/0008/1584728/uwir-2021-report.pdf page 101
5 https://www.ogia.water.qld.gov.au/                                             data/assets/pdf_file/0008/1733579/surat-uwir-annual-report- 2022.pdf page i
 
  • Large areas of the Arrow Energy CSG mining project in and near the Condamine Alluvium have only been partially developed eg, Kupunn which will result in wells prior to and after the introduction of the proposed SMF being intermingled and the impact of subsidence from pre-SMF wells will overlap post-SMF wells given OGIA has said in 2021 UWIR that depressurisation extends 10 km from a well within 2-3 years of production commencement.
  • It is impractical for subsidence management to be split into ‘pre’ and ‘post’ SMF, not only would this exclude the large number of landholders in and near the Condamine Alluvium who have existing impacts from CSG-induced subsidence and force them through the Court system, it would also require subsidence impacts to the same land and farming business to be split into pre-SMF and post-SMF, with the former requiring Court action and the latter not.
  • OGIA has found that all land in and near to CSG well development areas is already subsiding6. AgForce considers excluding any landholder from the proposed SMF simply because they have spoken publicly about subsidence impacts already impacting agricultural use of their land and business is not justified.
Baseline Data Collection
 
AgForce disagrees with the proposal that the tenure holders (holders of a petroleum lease or authority to prospect) be responsible for baseline data collection.
  • A tenure holder is not suitably qualified and not experienced in the profession of intensive rain- grown and irrigated cropping.
  • The tenure holder has a substantial financial conflict of interest.
  • Baseline data should be collected by an independent third party with suitable qualifications and experience in relevant-to-locality, intensive rain-grown and irrigated farming systems.
AgForce supports offence provisions for failures by tenure holders to comply with baseline data collection requirements.

AgForce supports the collection of baseline data, but has significant concerns about the collection of baseline data as the proposed framework omits critical components, most of which are generally encompassed with the MERCP Act Conduct and Compensation Agreement process:
  • Compensation for landholder time. Time taken away from business operations, family and personal activities comes with considerable cost to the landholder and must be paid for.
  • Where expert reports are required, the tenure holder should bear 100% of the cost, as was recommended by the GFCQ.
  • Landholders, who are best placed to know the relevant expert qualifications and experience in relation to their farming operations, must have decision making power as to the selection of expert profession and the expert, where professional assistance and/or expert reports are required.
  • Adequate compensation for legal advice on risks and consequences for the landholder in participating in the baseline data collection process.
  • Adequate compensation for mental health support.
  • Adequate compensation for expert advice the landholder may require ie,
    • Engineering advice about farm-built infrastructure such as irrigation water storage dams, built infrastructure (eg, sheds, silos, buildings), irrigation paddock water flow.
    • Agronomic advice.

6 https://www.rdmw.qld.gov.au/    data/assets/pdf_file/0008/1584728/uwir-2021-report.pdf page iv
 
 
    • Accounting & taxation advice.
    • Valuation advice.
    • Other specialist advice where required by circumstances particular to the property and/or farm business.
    • Baseline data collection will not be able to be agreed between the landholder and the tenure holder in the absence of the landholder’s own baseline data. Adequate compensation for the value of information the landholder may have gathered, or gathered at cost to the landholder, must be provided for.
It must be recognised that landholders in the Arrow Energy EPBC2010/5343 Dalby Expansion Project area which requires no subsidence baseline, measurement or monitoring, are unfairly disadvantaged due to the absence of any requirement for baseline data to be gathered for their properties prior to commencement of Arrow Energy EPBC2010/5344 Surat Gas Project on 22 October 2020.

AgForce is aware that a small number of those landholders, having been forced by law to accommodate subsidence impacts from CSG mining, have paid/are paying for baseline data. AgForce understands that data is likely to have significant contribution to scientific understanding of and model development of CSG-induced subsidence.
Therefore, AgForce considers that the tenure holder must be required to reimburse landholders for baseline data gathered (or contracted to be gathered) for landholders by suitably qualified experts prior to commencement of the SMF.
    • Adequate provision for the retention of ownership by the landholder of information provided by the landholder to the tenure holder and/or to OGIA.
    • Adequate provision for information privacy ie, protocols about information:
      • Secure storage
      • Location of storage
      • Access permission and restrictions
      • Duration of storage
      • Use (purpose, limitations)
      • Amendment
      • Disclosure
    • Adequate time period for the landholder to respond to information requests and participate in the baseline data collection process. Intensive cropping businesses have critical weather dependent operational periods (eg, seeding, fertilising, chemical application, irrigating, harvesting) during which the annual income of the farm business is at risk. Also, considerable delays can occur in sourcing legal and expert advice. AgForce considers that any consultation period should be at least ninety (90) business days, with further flexibility for delays in provision of expert advice, exceptional circumstances and natural disasters.
    • Requirement for tenure holder to provide a draft report to the landholder.
    • Adequate opportunity for the landholder to respond to the tenure holder’s draft report.
AgForce considers that this period should be no less than thirty (30) business days.
    • Requirement for tenure holder to consider landholder’s response to the draft report and
respond to the landholder’s concerns in the final report.

By omitting from the proposed framework the standard business process of draft consultation, the framework is encouraging unnecessary escalation of matters which should in most cases be able to be worked out between the parties before the report is finalised.

Periodic Cumulative Assessment of Subsidence
The value and validity of assessment is limited by the extent, type and quality of the baseline data and subsequent data upon which assessment is based. AgForce supports periodic cumulative assessment of subsidence but has significant concerns relating to:
  • Unresolved issues for landholders on provision of information (refer ‘Baseline data collection’
section above); and
  • Failure to require disclosure of methodology and parameters of data so that modelling and assessment of subsidence can be understood by stakeholder, for example:
    • The OGIA LiDAR elevation profile tool is silent about the vertical and horizontal accuracy of each LiDAR dataset, including +/- accuracy, data points per 1m2, size of each data point, certainty level of the dataset, how datum issues relating to comparison of datasets have been resolved and the impact on the limitations of the dataset in respect of such things as dense vegetation.
    • OGIA calibration of subsidence modelling on InSAR data points eg, calibration at production well heads, which due to being grid spaced at least 750 metres apart for vertical wells and several kilometres apart for directional wells, would have inherent limitations in relation to subsidence occurring between those points.
    • The GeoScience Australia national 9-second digital elevation model used by OGIA7 to establish baseline slope in its 2021 UWIR is a 250m2 average with inherent issues in areas where waterways are located and farm-built infrastructure such as irrigation water storage dams, water supply channels and water drains.

 

Regional Risk Assessment
AgForce supports regional risk assessment but considers it important that during the 3-year Subsidence Impact Report period there is flexibility in the annual report for farm fields in the category of “no future action is required until the next review of the Subsidence Impact Report” to move to other listed categories.

Subsidence Impact Management Strategy
AgForce supports subsidence impact management strategy but considers for the protection of AgForce member interests that the “MERCP regulation requirements for OGIA in preparing an impact management strategy” should include:
  • Requirement for suitably qualified, experienced and registered surveying expertise be used by OGIA.
  • Requirement for suitably qualified, experienced and registered engineering expertise be used by OGIA in relation to:
    • Subsidence
    • Flood modelling
    • Irrigation
    • Roads
  • Requirement for suitably qualified, experienced in the locality, agronomic expertise be used by OGIA.
  • Requirement for a panel of suitably experienced intensive rain-grown and irrigated farmers be used by OGIA.

7 https://www.daf.qld.gov.au/    data/assets/pdf_file/0010/1672993/22-043.pdf page 44
 
AgForce supports offence provisions for failure of the tenure holder to comply with the impact strategy and obligations set out in the Subsidence Impact Report.

Farm Field Assessment
AgForce disagrees with the proposal that the tenure holder be responsible for farm field assessment.
  • A tenure holder is not suitably qualified and not experienced in the profession of intensive rain- grown and irrigated cropping.
  • The tenure holder has a significant financial conflict of interest.
  • Baseline data should be collected by an independent third party with suitable qualifications and experience in relevant-to-locality intensive rain-grown and irrigated farming systems.
AgForce supports offence provisions for failures by tenure holder to comply with farm field assessment requirements.
AgForce strongly disagrees with the proposal to allow tenure holder unlimited, uncontrolled access to the land to conduct farm field assessments.
AgForce considers that farm field assessment requiring access to intensively cropped land in addition to significant involvement of the landholder, will require a full-time escort whilst on farm. This must be a negotiated process including payment for landholder time as well as consideration of timing of access to minimise disruption of the landholder’s farming operations and other commitments.
Due to the hazardous nature of many rain-grown and particularly irrigated cropping operations in intensively farmed areas, AgForce considers that entry by tenure holder or third party under SMF provisions is an advanced resource activity which requires a Conduct and Compensation Agreement (CCA) in addition to MERCP Act compliant Notice of Entry to Private Land, completion reports and details of access activity reports.
The farm field assessment report includes requirements as to:
  • farming practices and ongoing/operational managements
  • upcoming land works or planned reconfigurations
  • thresholds for changes to farming practices and yields
  • conceptual or quantitative testing for the probability of exceedance resulting from characterised subsidence
AgForce strongly disagrees with the proposal for OGIA to be appointed as the sole endorsing authority of the farm field assessment. The tenure holder does not have suitable qualifications or experience with intensive farming systems, nor does OGIA, thus the proposed arrangement is for an unqualified entity to prepare the assessment and another unqualified entity to sign off on the assessment.

AgForce considers it essential for all SCL, PAA and PALU areas that the Department of Agriculture and Fisheries (DAF) and the Department of Regional Development, Manufacturing and Water (DRDMW) participate in the endorsement process of the farm field assessment.

AgForce strongly disagrees with the omission of a consultation step requiring the tenure holder to provide a draft farm field assessment report to the landholder with requirement for the tenure holder to then respond to landholder concerns in the final report as it will unnecessarily increase the number of landholders seeking a review by the Chief Executive.
AgForce supports measures to avoid duplication of processes in the three stages of SMF data collection and provision for additional data as necessary.
 
 
However, it should be recognised that due to the framework being introduced subsequent to subsidence impacts becoming apparent to landholders, no or very limited baseline data will have been collected by the tenure holder for landholders without a CCA and this should be incorporated in this step.

AgForce supports farm field assessment but has significant concerns about the collection of farm field assessment data, including baseline data for those landholders entering the SMF at this stage due to subsidence being in
progress in large areas. The proposed framework omits at this stage critical components which are generally otherwise encompassed with the MERCP Act CCA process.

AgForce concerns about farm field assessment are the same as AgForce concerns in relation to
baseline data collection. Please refer to the baseline data collection section.

Intra-Farm Drainage Assessment
AgForce supports Intra-farm drainage assessment however, has the same opinions and concerns in relation to intra-farm drainage assessment as AgForce has with farm field assessment and baseline data collection. Please refer to the farm field assessment and the baseline data collection sections.

Subsidence Management Action Plan
AgForce considers it critical that the subsidence management plan must have agreement of the landholder.
AgForce supports the subsidence management action plan however, has the same opinions and concerns in relation to Subsidence management action plan as AgForce has with farm field assessment, baseline data collection, and intra-farm drainage assessment. Please refer to the farm field assessment and the baseline data collection sections.

Subsidence Agreements
AgForce considers it critical that for all areas of Agricultural land class (ALC) Class A and Class B agricultural land, the subsidence agreement requires the tenure holder to maintain the pre-existing use of the land. ALC Class A and Class B agricultural land are important agricultural areas to the State Interest in Agriculture and whose pre-existing land use is prioritised and protected under Planning Act 2016 through State Planning Policy-Agriculture, Regional Plans and the Regional Planning Interests Act 2014.

AgForce is strongly of the view that omission of the requirement to sustain pre-existing land use would be contrary to the SPP state interest-agriculture, undermine Regional Plans, weaken landholder protection, remove existing protections with no compensation and represent a departure from the legislated purposes of the RPI Act.

AgForce supports subsidence agreements but considers it necessary that similar to CCAs, the tenure holder is required to pay for all reasonable costs (eg, legal costs, valuation costs of the landholder) associated with making the agreement.

Similar to s81 of MERCP Act provisions, the subsidence agreement should provide for “consequential losses” eg, disruption of farming operations on other farms operated by the landholder, diminution of market value. Aside from the actual losses incurred, significant implications and risks exist for landholders in relation to security interest and interest rate risk margins for financiers and the reaction of willing buyers of land for those farms which will require ongoing subsidence damage repairs.

The agreement should also:
  1. Include payment for landholder time.
  2. Provide support and resources required to manage the ongoing subsidence.
  3. Provide support for mental health services.
  4. Be noted on the title to the land so its existence is visible to security interest holders (ie, financiers) and buyers of the land.
  5. Be able to be re-negotiated on request by the landholder in the event of material change in circumstances or change in ownership of the land.
  6. Be a separate agreement for each land parcel so that landholders retain the ability to dispose of individual land parcels of their farm (eg, sale, inheritance).
Dispute Resolution
AgForce supports proposed dispute resolution options however, AgForce considers that where expert advice and reports are required the tenure holder should be required to pay for all reasonable costs associated with necessary reports. The tenure holder is engaged in the activities which cause the subsidence, the landholder is not and a significant power and resource imbalance exists between the tenure holder who has more funds and a significant financial benefit in minimising its subsidence management obligations and the landholder who is required by law to accommodate subsidence damage for public benefit.

Reporting Requirements – Subsidence Impact Report
AgForce supports proposed subsidence impact report reporting requirements and considers the requirement for the OGIA to seek independent review, essential. AgForce also considers it essential that the independent review report be published in full at the same time as the subsidence impact report.

Reporting Requirements – Subsidence Trends Report
AgForce supports proposed subsidence trends report reporting requirements and considers the requirement for the OGIA to seek independent review, essential. AgForce also considers it essential that the independent review report be published in full at the same time as the subsidence trends report.
 
Data Acquisition
AgForce supports the proposed data acquisition provisions.

Gap - Exchange of Baseline Data
AgForce understands that the OGIA has decided that LiDAR data is currently appropriate for subsidence baseline creation and subsidence monitoring in most cases. Tenure holders, where required to do so by the OGIA, must obtain data and provide a copy of the topographical data and its associated metadata issued to it by its contractor to the OGIA within 3 months of capture. However, no mechanism exists through which landholders can obtain the data provided to the OGIA by the tenure holder.

Therefore, AgForce considers that landholders do not have a ‘baseline’ for their land parcels because landholders require data which has not already been processed by the tenure holder in order to commission their own expert advice where required. Without guaranteed access to data, landholders do not have a ‘baseline’ able to be used by the landholder in the tenure holder engagement process or in dispute resolution. This is a significant gap which undermines the intent and process of the proposed subsidence management framework and which places landholders at significant disadvantage to tenure holders which cannot be justified.
AgForce is strongly of the view that either the tenure holder or the OGIA must be required to provide data and metadata for the landholders’ land parcels which has not been processed by either the OGIA or the tenure holder, to the landholder on request by the landholder.
 
Data provision should occur within thirty (30) business days of the landholders’ requests.

Gap – Unauthorised Resource Activities
AgForce has concerns that subsidence caused by tenure holder activities found on a technicality to be unauthorised under the Resource Act for which the authority is granted, may not be eligible for the subsidence management framework. Further, this potential loophole may create incentive for tenure holders to engage in minor breaches of their resource authority enabling them to avoid subsidence management costs to the detriment of AgForce members and landholders.

Sub-section 81(4) of MERCP Act8 says:
“ In this section –
"compensatable effect", suffered by an eligible claimant because of a resource authority holder, means—
(a) any of the following caused by the holder, or a person authorised by the holder, carrying
out authorised activities on the eligible claimant’s land - … ”
Defining ‘authorised activities’9 as:
“  authorised activity, for a resource authority, has the meaning given by the particular
Resource Act under which the resource authority is granted.”
AgForce is of the view that in circumstances where the resource activity may on a technicality be found by the regulator not to have been authorised by the resource authority, the landholder may be exposed to risk. Landholders are required by law to accommodate resource activity for the public good through the MERCP Act process. They are entitled to rely on government administration and oversight to ensure tenure holder resource activities are authorised.

However, should the government fail in that function, or choose to take no action on minor matters which at law may render the resource activity unauthorised, landholders may not only be unable to pursue remedy under s81 of MERCP Act, their alternate pathway for compensation through common law may be expired (eg, trespass or nuisance).

AgForce considers that where landholders have been required through lawful processes undertaken by the tenure holder to accommodate resource activities and their impacts, landholders should be able to use s81 of MERCP Act and the proposed subsidence management framework irrespective of whether the resource activity is technically authorised under the Resource Act.

Land Access Risk Assessment
Risk Assessment
Landholders are forced by law to accommodate imposed resource activities and should not be required to bear any of the costs, including cost of time, or risks, of accommodating those activities. It is unacceptable to AgForce members that the proposed framework requires them to provide information, including sensitive and commercial in-confidence information, to tenure holders without provision for the cost and value of information as well as robust privacy and usage controls.
AgForce disagrees with the proposal that the tenure holder be responsible for land risk assessment.
  • A tenure holder is not suitably qualified and not experienced in the profession of intensive rain- grown and irrigated cropping.

8 https://www.legislation.qld.gov.au/view/html/inforce/current/act-2014-047#sec.81
9 https://www.legislation.qld.gov.au/view/html/inforce/current/act-2014-047#sch.2
 
 
  • The tenure holder has a substantial financial conflict of interest.
  • Risk assessment data should be collected and reported on by an independent third party with suitable qualifications and experience in relevant-to-locality intensive rain-grown and irrigated farming systems.
AgForce supports the introduction of a risk-assessment framework however, considers the risk assessment framework omits critical components which are generally otherwise encompassed with the MERCP Act CCA process:
  • Compensation for landholder time. Time taken away from business operations, family and personal activities comes with considerable cost to the landholder and must be paid for.
  • Where expert reports are required the tenure holder should bear 100% of the cost, as was recommended by GFCQ.
  • Landholders, who are best placed to know the relevant expert qualifications and experience in relation to their farming operations, must have decision making power as to the selection of expert profession, and the expert, where professional assistance and/or expert reports are required.
  • Adequate compensation for legal advice on risks and consequences for the landholder in participating in the risk assessment process.
  • Adequate compensation for expert advice the landholder may require ie,
    • Engineering advice about farm-built infrastructure such as irrigation water storage dams, built infrastructure (eg, sheds, silos, buildings), irrigation paddock water flow
    • Agronomic advice
    • Accounting & taxation advice
    • Valuation advice
    • Other specialist advice where required by circumstances particular to the property and/or farm business
    • Adequate compensation for the value of information the landholder may have gathered, or gathered at cost to the landholder
    • Adequate provision for the retention of ownership by the landholder of information provided by the landholder to the tenure holder
    • Adequate provision for information privacy ie, protocols about information
      • Secure storage
      • Location of storage
      • Access permission and restrictions
      • Duration of storage
      • Use (purpose, limitations)
      • Amendment
      • Disclosure
    • Adequate time period for the landholder to respond to information requests and participate in the risk assessment process. Intensive cropping businesses have critical weather dependent operational periods (eg, seeding, fertilising, chemical application, irrigating, harvesting) during which the annual income of the farm business is at risk. Also, considerable delays can occur in sourcing legal and expert advice. AgForce considers that any consultation period should be at least sixty (60) business days, with further flexibility for delays in provision of expert advice, exceptional circumstances and natural disasters.
    • Requirement for tenure holder to provide a draft risk assessment report to the landholder.

      ​​​​​​​Adequate opportunity for the landholder to respond to the tenure holder’s draft risk assessment report. AgForce considers that this period should be no less than thirty (30) business days.
  • Requirement for tenure holder to consider landholder’s response to the draft report and respond to the landholder’s concerns in the final risk assessment report.
By omitting from the proposed framework the standard business process of draft consultation, the framework is encouraging unnecessary escalation of matters which should in most cases be able to be worked out between the parties before the report is finalised by the tenure holder and submitted to the department for the next step of ‘landholder review period’ of the final report.

AgForce considers that landholder freehold tenure rights should be explicitly recognised and that the drilling of directional or vertical wells underneath a landholder’s property only be authorised with the appropriate protections of a CCA, including alternative dispute resolution processes and legal certainty that their interests will be protected.

AgForce supports offence provisions for failures by tenure holder to comply with risk assessment framework requirements.

Landholder Review Period
AgForce supports a risk-assessment review period however, considers the proposal omits the critical steps of:
  • Adequate opportunity for the landholder to respond to the risk assessment report. AgForce considers that this period should be no less than thirty (30) business days. It is essential that provision is made for time frames suitable for agricultural land use given landholders are required by law to accommodate resource activities.
  • Requirement for tenure holder to consider landholder’s response to the risk assessment report and respond to the landholder’s concerns in an amended/supplementary risk assessment report.
 
AgForce considers that this formal record of landholder objection to the risk assessment report by the tenure holder to the landholder’s land and operations will reduce escalation of matters to dispute resolution in relation to minor matters where the landholder does not agree with the assessment made by the tenure holder but does not wish to escalate to dispute resolution.

Dispute Resolution
The proposed dispute resolution pathway is limited to where there is a dispute about whether the activity is a preliminary or advanced activity.

AgForce supports the proposed Land Access Ombudsman (LAO) dispute resolution with judicial review pathway process however, considers it essential that the proposed framework includes provision for:
  • The responsible tenure holder paying 100% of the cost of any expert advice required by the LAO. This was recommended by GFCQ and accepted by the government in its response to the GFCQ recommendation.
  • Landholders be consulted as to which specialist(s) professions have the relevant and suitable qualifications and experience in relation to that landholder's agricultural operations, should LAO call on expert advice. Cropping systems are complex and not understood by those without suitable experience or qualifications in those farming systems.
  • Landholders are given access to information and reports provided by the tenure holder to the LAO.
 
 
  • Corporate landholders are treated equally to non-corporate landholders as the land ownership and/or trading entities of landowners are driven by family succession planning, risk, flexibility and taxation and are not generally an indication of the size of the farming enterprise. AgForce membership includes small family operations operating within a company or corporate trustee structure. The distinction should be landholder and tenure holder, not corporate or non- corporate entities.

Part B: The Review of Co-Existence Institutions

Gasfields Commission Act 2013

AgForce has significant concerns about the proposed amendment of the Gasfields Commission Act 2013 which says:
“The primary intent of the revised functions is to focus the GFCQ’s activities and remit in the preparation and delivery of education and information about coexistence and land access matters.”

This proposed primary intent deletes all reference to landholders, who AgForce considers to be a primary stakeholder in any access and/or co-existence negotiation:
“The refocused legislative functions propose to shift the GFCQ’s role to provide information, engagement and education services to the community and industry on a broader range of land access and coexistence issues related to the broader resources activities and the renewable energy sector.”

AgForce takes issue with the fact that landholders, in their own right, have been omitted from the list of stakeholders. As discussed above, landholders have a far greater interest in coexistence than the general community.

AgForce considers it essential that the GFCQ be a neutral party in relation to the varying interests of competing land uses and not get involved in promotion of any one sector. The GFCQ should provide support for all parties in improving co-existence negotiations and outcomes.

AgForce supports the expansion of the role of the GFCQ to encompass the renewable energy sector, however new governance arrangements will be required to support this expansion.

The GFCQ should also be able to provide legal advice on processes applicable to individual circumstances (but not replacing legal advice to landowners in negotiations), as well as promoting information sharing and transparency across government departments and facilitating the improvement of data systems to integrate and match information on land use activities.
Considerable negative feedback has been received by AgForce in relation to the proposed name ‘Coexistence Queensland’, with some members finding the name offensive, commenting the GFCQ would be more aptly named ‘Subjugation Queensland’. Given the negative and considerable mental health implications for AgForce members, AgForce suggests a more appropriate name for the GFCQ would be ‘Land Access Queensland’. This describes the proposed role of the GFCQ which is facilitating land access by resources and renewable industries through co-existence with landholders.

Land Access Ombudsman Act 2017
AgForce supports the proposed expansion of Land Access Ombudsman (LAO) functions and powers to provide parties with access to a free, independent dispute resolution service.
However, it is essential that the LAO role also includes advice about disputes in relation to Notice of Entry to Private Land matters.
 
 
Disputes relating to land access for preliminary activities can be problematic for AgForce members and they should not be excluded from LAO services.
AgForce considers it essential that landholder access to authorised officer conferencing through the Department of Resources (the department), and judicial review pathways are preserved.

Next Steps
Fundamentally, AgForce believes that if consultation is going to occur, it is key that decision makers can demonstrate how they have considered information provided by stakeholders and used it to inform their subsequent decisions.

The matters considered in this consultation paper are extremely significant to AgForce members who own or neighbour PAA and/or SCL, whose lives and livelihoods depend on the careful use and protection of good quality agricultural land.

Lending decisions of AgForce members’ financiers, including about interest rate margins, have been made in reliance upon landholders being ‘no worse off’ as a result of resource activity, the continuation of PALU, the prioritisation of PALU, PAA and SCL, and also CSG-induced subsidence impacts management remaining within the RPI Act.

AgForce thanks the Department of Resources for the opportunity to provide feedback and looks forward to continued engagement to better practices for all stakeholders involved.
If you have any questions or require further information please contact Anna Fiskbek, Policy Advisor by email: fiskbeka@agforceqld.org.au or mobile: 0407 813 470.
Yours faithfully
 
Michael Guerin
Chief Executive Officer

Appendices

Appendix 1: AgForce Land Use Protection Principles
As the body for agriculture, AgForce requires that alternative and potentially impacting land uses ensure:
  1. There is recognition that natural capital has an inherent value.
  2. Human health and well-being must not be sacrificed.
  3. A precautionary approach that avoids negative legacy effects on natural resources including air, soil, water and biodiversity.
  4. There are no negative impacts on existing or future sustainable agricultural opportunities.

 

Before:
    • Recognize that resources are finite.
    • All projects are assessed on environmental, social and economic criteria.
    • There is a formal mechanism for agriculture to be involved in assessment.
    • Projects should not be assessed in isolation and cumulative impacts assessed.
    • Potential impacts need to be objectively, and accurately quantified rigorously and independently reviewed.
    • Agricultural landholders to have equal representation, available resources and bargaining power.
​​​​​​​​​​​​​​​​​​​​​During:
  • All projects must have comprehensive monitoring and transparent reporting.
  • Non-compliance will trigger cease work.
  • Enforcement is primarily the responsibility of government, but landholders must have a right to compel action.
  • Industry and Government must proactively identify and manage cumulative impacts, both individual project cumulative impacts and multiple projects cumulative impacts.

After:

  • Land needs to be rehabilitated to be the pre-existing natural conditions
  • Financial assurance needs to be adequate for rehabilitation

See: https://www.agforceqld.org.au/knowledgebase/article/AGF-01250/
 
Keywords: Submission, Coexistence, Institutions, CSG, Induced, Subsidence, Management, Framework