PRA: November newsletter

 

 

Property Rights issues keep on coming thick and

fast. The length of time between newsletters isn't an indication that nothing has been happening rather just how busy the board has been.

 

 

 

 

 

Some of the presentations from this last conference are now available on YouTube (links below) with a few more in the process of being edited and will be available soon.

Ashley McKay - 10 years PRA history and achievements

 

http://www.youtube.com/watch?v=m0aEdSWjPOw

 

Richard Golden - Living & Working in a Gasfield

http://www.youtube.com/watch?v=R8rVNH29fDs

 Troy Rowling - How do we get the message across in the city press?

http://www.youtube.com/watch?v=DW3LS1w0feY

 

Coal Seam Gas

MLA through RIRDC has a research paper available which discusses co-existence. If anything the paper bears out the claims of our members that negotiating with the various bodies who may want to share your land is time consuming and requires a great deal of personal research. Look at point 1 and how many fields a landowner is advised to become an instant expert in. I cannot disagree. Obtain specialist advice but relying on specialists who do not come with recommendations leaves one open to charlatans. There is no easy road.

These are just a couple of snippets from the paper.

It is likely that a new land use will interfere with the efficient operation of existing farm enterprises and as a consequence could increase production costs and/or lower farm revenue. Accommodation of the new land use may also require a significant time commitment by the landholder. Changes in farm profitability and associated uncertainty could translate into changes in agricultural land values and increased competition for resources, such as water, from the new land use. Increased traffic through or around a property will also increase biosecurity risk, which will need to be addressed

.

A Checklist of Negotiation Processes for Landholders

1. Inform yourself of all the aspects of the process in which you are involved, such as legal, agronomic, hydrological, biosecurity, etc.

6. Negotiation will take significant time. Previous experience has shown that negotiations for a single

property can take up to 500 hours, with over 100 hours directly interacting with the new land use

proponent in the first six months.

7. Comprehensive documentation is required throughout the negotiation process, including proposals and personnel change and information that may be provided by the new land use proponent e.g. in one situation six sites on a property that were initially discussed ended up being 42.

8. The new land use proponent may be large and unwieldy and routinely turnover staff – do not assume that they all know what is going on at any one time. Insist on an organisational chart and ensure you are working with someone senior enough to make decisions.

9. Ensure there are compensation provisions built into agreements for any change in scope or

construction timetable

 

The whole paper can be accessed with the following link.

Principles for negotiating appropriate co-existence arrangements for agricultural landholders

With the plethora of CSG wells, mines and associated infrastructure moving at such a fast speed any cracks in the legislation are becoming visible.

Planning Policy changes

In an upheaval of State planning policy the Qld Govt in a short period of time reviewed, amended and drafted new planning instruments. PRA wrote four separate submissions to four separate planning policies. We found ourselves commenting on draft amendments with various assurances that may mean very little because higher ranked planning policy had yet to be finalised. The drafts up for comment by submission contained repetitive terminology that was not defined and could be made to mean whatever. Although the policies claimed that agriculture was important, mining and coal seam gas activity was given a get out of jail card at every corner with phrases like, “no reasonable alternative.”

Instead of creating planning policy that would stand the test of time and be broad enough to cover all future circumstances the policies made heavy reference to coal seam gas and mining not in an effort to create a level playing field, but in a blatant effort to drive a mine truck or CSG drilling rig through the many loopholes.

 

The still yet to be defined co-existence was used as a cornerstone but there appears to be no circumstance where coexistence is not possible but rather agriculture has to fit in with the resource sector. The planning policies are creating new land classifications that have the effect of creating unnecessary complexity, confusion and watering down of farmer’s rights.

All agriculture based organisations addressed in detail the many points that were of concern in the submission processes only to be largely ignored. The universal dissatisfaction with the Qld government’s final position on these planning policies is evident in the following newspaper article: Farm 'protection' blasted.

 

Recent Property Rights cases

Joanne has been giving support via phone calls to a West Australian landowner who successfully defended a prosecution brought on by the WA Dept of environment & conservation (DEC). The case gained the interest of the IPA who issued the following media release: The case of Peter Swift will shock you

The case of the well reported locked gate on the access road to a Georgetown property is a case in point where all government departments seemed powerless to do anything about it in a timely manner. If you haven’t caught up with this case the locked gate wasn’t a landowner locking out a miner rather it was a miner who constructed a fence across an access road to a Georgetown cattle station. No government department was able to detect any illegal act so, it seems, were powerless to do anything. Since the Beef Central article, Mining company fences off NW Qld property, was written, PRA was able to direct the landowner to good legal advice. The case is still ongoing.

 

A landowner in Southern Queensland appealed to PRA for help in what is one of the worst abuses of property rights we have seen. We were only called in at 1 minute to midnight & were unable to achieve a lot due to some poor legal advice earlier in the case history and, left unguided, a couple of unfortunate decisions by the landowners. The agreement reached included a confidentiality clause. This case highlights that abuse of power perpetuated by quasi government corporations and the importance of obtaining specialist legal advice.

Open mineral exploration holes

Dale has taken a position on the committee of the Basin Sustainability Alliance. BSA works only in the area of coal seam gas and its position is very close to that of PRA.

Dale is giving support to a fellow committee member, water driller Ian Hansen, in his concerns about the many thousands poorly decommissioned exploration holes that could become pathways if a gasfield is constructed in the same locality and the coal measures are depressurised by removing water to allow the gas to travel.

 

The elusive coexistence definition

It is the most overused word in all matters related to coal seam gas in Queensland. The word “coexistence” is being used increasingly by industry and government with regard to the interaction between resource activities and agriculture.

In the legislation that gave the Gasfield Commission its powers it was stated that the purpose of this new statutory body was to facilitate sustainable coexistence. However there was no definition provided of what sustainable coexistence is and I’m unaware of the Gasfield Commission developing any satisfactory definition since.

Cartoon sourced [here] 

In recent months the Qld government has with considerable haste offered for public comment draft amendments to a whole series of different planning policies. A common thread was that the needs of increased resource activity and agriculture were all made possible by coexistence. Again coexistence was not defined.

Also a common thread in these amendments was that there was no provision for the potential for co-existence to not be possible, merely that the development of coexistence criteria will somehow enable coexistence to occur. By not making the allowance for the situation where co-existence is not achievable, the provision is made for resource activities to be able to proceed in all areas.

The reality is that coexistence arrangements are opening doors for exploration and resource extraction. Landowners have never felt any comfort that any such arrangement would allow for full farming production and efficiency. The use of this term provides no legal or compensable protection for landowners

Coexistence infers some kind of mutually beneficially arrangement.  However, farmers are not experiencing the joy of a mutually beneficial arrangement, rather they are facing stress, heartache, loss of time, loss of amenity, impacts on land, business, lifestyle, and fear for the future of underground water impacts, from an industry thrust upon them.

Currently coexistence could be defined as primary producers finding a way to adapt their businesses to accommodate the CSG activities.

Joanne Grainger, Queensland Farmers Federation President wrote in the QFF weekly column in the 19^th September 2013 issue of the Queensland Country Life newspaper

“ QFF agrees that all regulatory frameworks should provide as much certainty as possible to all stakeholders but does not agree with the concept that the outcome of planning and assessment processes should automatically be various forms of coexistence.

The principle does not apply to planning processes in urban areas, where land use conflicts are avoided by separating incompatible land uses, and should not apply to rural areas.

An important principle to follow is that coexistence should be mutually beneficial to all parties and that where this is not the case, it should be pursued.

In fact the outcome in many intensive farming areas should be that in certain areas of agricultural production there are no prospects of coexistence and these areas should be off-limits to any resource activity.”

Photo sourced The Australian

 

The areas that there are no prospects of coexistence and should be off limits to resource activity are:

·         CSG wells, roadways, pipeline and other associated infrastructure on alluvial flood plains that are cropped.

·         where irrigation entitlements to aquifers have been reduced and will be reduced in future often resulting in loss of crops, the notion that resources companies can have unimpeded access to that water is abhorrent

·         where underground water supply for livestock will be lost to CSG activity and there is no viable alternative supply of an equal standard

·         where the quality of the water will be affected by CSG activity

·         high density well heads especially in areas where broadacre cropping and large scale machinery are the lynchpin of efficiency, having to reduce either or both of these will cause a permanent decrease in efficiency

So how should coexistence be defined?  Surely coexistence is either a beneficial or stable interaction between resource proponents and the current land and agricultural resource users. And surely it should be recognised that sometimes coexistence just isn’t possible.

PRA: Case Study, Changes for expediency

Case study Xstrata Wandoan coal mine lease application; Queensland Coordinator-General, November 2010, reclassification of land types for the advantage of the mining company.

Prepared by Property Rights Australia

Image sourced from Xstrata EIS. The mining lease area covered approximately 30,000 ha with 70 land titles belonging to 42 owners. Each little pink square represents a farming family to be removed, which they nearly all were, for the mine to proceed.  


Agricultural land in Queensland has been classified using the simple classification system called Good Quality Agricultural Land (GQAL)[i] of A, B, C and D class soils.
Class A is top cropping country
Class B is land suitable for cropping and grazing
Class C is grazing only; unsuitable for cropping;
and D is unsuitable for agriculture or reserved for environmental purposes.

This land classification system was developed from decades of work by soil scientists who were unimpeded from any other agenda other than good science. QGAL is clearly defined; it has been used as standard in resolving matters in the courts. It has stood the test of time. 

Property Rights Australia (PRA) is very concerned where policy, legislation, planning schemes and ministerial decisions have been implemented without giving priority to good soil science.  

A very blatant example in recent years is where the Coordinator-General’s department in November 2010 reclassified lands in the Xstrata Wandoan coal mine lease application from A & B to C for the advantage of the mining company. This project was subsequently granted conditional environmental approval in March 2011.

 

It is important to review what occurred at that time not only to be vigilant in ensuring it doesn't happen again but also to facilitate improved outcomes in future policy and legislation. Throughout 2013 the Qld government has been making changes to many planning laws, the latest being the Darling Downs Regional Plan which makes mention of the Xstrata Wandoan coal mine project on page 17.[ii] 

With any mining or petroleum lease application, a resource company is required to produce an environmental impact statement (EIS)[iii] where a consultancy firm is hired to write a document (best measured in kilograms rather than pages) to shed the best possible light on the project proceeding. The Xstrata Wandoan coal mine addressed quality of soils in the lease application in volume 1, chapter 9.3.6 and land suitability and agricultural lands in chapter 9.3.7.[iv]  

Despite including the pre-existing GQAL mapping as Figure 9-11-V1.3, the EIS provides inconsistent mapping of soil quality in Figure 9-9-V1.3. The EIS states that this second map uses the classification system of Land Suitability Classification for Cropping and Grazing in the Semi-arid Sub-tropics of Queensland (Department of Mines and Energy, 1995). The result is that under GQAL the land was considered to be either, Class A, top cropping country or B, land suitable for cropping and grazing and in the classification system favoured by Xstrata the very same land overnight became either

• Class 3 – suitable land with moderate limitations; land which is moderately suited to a proposed use but which requires significant inputs to ensure sustainable use; or
• Class 4 – marginal land with severe limitations which make it doubtful whether the inputs required to achieve and maintain production outweigh the benefits in the long term.  

The accuracy of the information and the methodology used to reach the conclusions in the relevant chapters within the EIS is questionable and was challenged by those with local knowledge. In response to these submissions the Supplementary EIS (SEIS)[v] spent many pages justifying the obvious anomalies without varying its conclusions. 

The most disappointing aspect about Xstrata Wandoan coal mining lease application was not the information paid for by Xstrata and prepared by consultants but the almost unreserved acceptance of this material in the Coordinator-General’s evaluation report on the EIS.[vi]

In Chapter 5.2.1 - Good quality agricultural land, strategic cropping land and rehabilitation, the Coordinator-General makes the following statements 

The EIS outlined that, under Section 2 and Attachment 2 of the associated SPP 1/92 Planning Guidelines: The Identification of Good Quality Agricultural Land (Department of Primary Industries and Department of Housing, Local Government and Planning Queensland 1993), Class A, B and C agricultural land in the former

Taroom Shire does comprise GQAL [emphasis added] 

The Taroom Shire Planning Scheme classified the MLA areas as GQAL—Classes A, B and C. The land suitability assessment undertaken in the EIS and SEIS, however, concluded that Class 3 and Class 4 land suitability—which approximates to GQAL Agricultural Land Class C—occurred on the MLA areas. Therefore, indications are that the MLA areas are unlikely to be classified as strategic cropping land.  

It beggars belief that the Coordinator-General could accept without question the downgrading of this land classification by the party with an economic interest in having it downgraded, without considering the possible cost to Queensland agriculture and the past production history of that land. 

PRA strongly believes land classifications must be based on established science and the production history of that land. No benefit to the immediate community or the citizens of Queensland can be identified in altering soil classifications for the expediency of the resource sector, as in the Xstrata Wandoan coal mine where A and B GQAL was changed to C class. Nor should it be the case where a process could be influenced so as C and D class land could be changed to A and B to stop a resource project.

 

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[i] http://www.dsdip.qld.gov.au/resources/policy/plng-guide-identif-ag-land.pdf

 

[ii] http://www.dsdip.qld.gov.au/resources/plan/darling-downs/draft-darling-downs-regional-plan.pdf

 

[iii] http://www.dsdip.qld.gov.au/assessments-and-approvals/environmental-impact-statement-eis.html

 

[iv] http://www.wandoancoal.com.au/EN/PublicationsandMedia/Pages/VolumeOneEIS.aspx

 

[v] http://www.wandoancoal.com.au/EN/PublicationsandMedia/Pages/VolumeOne.aspx

 

[vi] http://www.dsdip.qld.gov.au/resources/project/wandoan-coal-project/coordinator-general-report.pdf