The Contestation between and Coexistence of Agricultural Land Protection and Coal Seam Gas Activities in Queensland, Australia.

Abstract

The development of the coal seam gas industry in Queensland has created an intense public debate concerning the coexistence of agricultural land and unconventional gas (UG)extraction. This debate is particularly relevant to Queensland, which from the early 2000s onwards has dominated the UG extraction and production sector in Australia. The UG industry has thrown into sharp relief the role of the state in creating effective natural resource regulation. Namely, the interconnection between economic development, land use and conflicting interests in UG extraction and production.This thesis is confined to an analysis of the regulatory frameworks that govern land use, compensation and access to the extraction of UG. In extracting unconventional gas resources (UGR), it is necessary for the state and private resource companies to enter into a long-term relationship. This brings challenges to other sectors which, under state law, must enter into agreements to provide access to the land under which the resource resides. This, in turn,creates tension between the private interests of commercial resource companies, private landholders and the role of the state in balancing the interests of competing sectors.This thesis considers these challenges in Queensland, the largest and sole Australian UG
producer and exporter outside of the United States and Canada, as to whether current regulation demonstrates coexistence by effectively managing conflicting interests. Where an absence of effective regulation is identified, this thesis analyses other jurisdictions to determine whether there are lessons from these jurisdictions. In particular, this thesis focuseson how British Columbia has been able to utilise legal and regulatory frameworks to encourage coexistence and develop UG resources in tandem with other sectors and to the benefit of all citizens. This thesis explores the question; to what extent is Queensland’s current regulatory framework for UGR development effective in managing conflicting land interests in the extraction of UG in Queensland? Firstly, this thesis considers these challenges in Queensland, analysing whether UG regulation has managed competing interests and identifying that, although there has been regular reviews of legal frameworks which govern conflicting interests, Queensland’s policies still lack transparency, clarity and certainty relating to the management of conflicting interests. It is argued that the commercial focus of Queensland’s UG policy prevails, encouraging exploration that privileges the interests of resource companies over those of private landholders. In contrast, an analysis of British Columbia’s land use and resource policies demonstrates a different policy focus—providing greater state control over the exploitation of
natural resources and balancing conflicting interests in the exploitation of UG. The tenets and policy principles underlying British Columbia’s approach provide valuable lessons for Queensland, by demonstrating the need to ensure coexistence of different sectors.
An analysis of Queensland’s UG regulatory regime suggests it is prescriptive, rule-based and creates unnecessary gaps and burdens on landholders. In contrast, an analysis of the legislative frameworks of another jurisdiction, namely British Columbia, indicates a principles-based legislative framework with broad enabling legislation and complementary regulatory administrative bodies, reducing regulatory burden and providing greater oversight to manage coexistence. This type of legislation encourages the protection of other land uses to meet the interests of other sectors and positions the state as an effective arbiter of multiple interests, allowing petroleum titleholders to realise economic gain without detriment to other sectors. Therefore, this analysis identifies the need for a single regulatory authority operating under a memorandum of understanding based on collaborative regulation as part of the legislative framework to encourage effective development of UGR in Queensland’s
agricultural regions.
The authorisation of development approvals is important for the development of UGR in Queensland. It is crucial, as it not only identifies agricultural areas that must be zoned for protection, but establishes the relationship between the state as owner of the resource, petroleum titleholders as the commercial developers of the resource and private landholders as the surface owners of the land. It is through the allocation of approvals that the interests of titleholders and landholders are aligned as closely as possible. The chosen methods of
approval and land use zoning demonstrate that where a state seeks to gain economic return for its resources, while minimising impact of UG exploitation on agricultural land, the use of land use approvals for resource activities is an appropriate tool to regulate conflicting land uses.
However, where a state seeks to privilege the resource sector, the land zoning system itself is inadequate.
To ensure an effective approval regime, a regulatory administrative agency body with a strong compliance approach, beyond monitoring, may align policy with overall governmental regulation to achieve effectiveness in the approvals process for petroleum titleholders. The current process in Queensland for the approval of UG activities in priority agricultural areas encourages neither certainty nor coexistence. An analysis of British Columbia’s collaborative
system of land use and a single regulatory administrator demonstrates that an integrated regulatory approach meets the policy objectives of the State.
This thesis finds that, although the Queensland Government has attempted reforms to encourage greater coexistence, in practice these reforms have created greater confusion between differing legislation, lack of transparency and an onus on individual landholders to undertake costly and time-consuming legal action to prove the impact and effect of resource activity on their lands. Ultimately, the current process to determine land access and compensation agreements does not improve the position of landowners or encourage greater
coexistence.
The law is correct as at 30 October 2017.

Date of Award	17 Feb 2018
Original language	English
Supervisor	Dan Svantesson (Supervisor), Tina Hunter (Supervisor) & Hannah Wittman (Supervisor)