Legal loophole for landowners

LEGAL advice provided by the Environmental Defender's Office (EDO) suggests there may be a "get out" clause for landowners who don't want coal seam gas mining companies coming on to their land.

The clause is in relation to the term "improvements" as defined in the Petroleum (Onshore) Act 1991. Section 72 of the Act states the holder of a petroleum title (including exploration licences) cannot undertake any works on land on which there are improvements without the written consent of the owner and occupier.

Thousands of people across the region have displayed Lock the Gate signs on their properties to let mining companies know they do not want exploration or extraction occurring on their land, but it is largely a symbolic gesture. Under the powers granted to the mining companies in their licences, if access is denied, they may take landowners to the Land and Environment Court where the court may order access with conditions.

BUT advice provided by the EDO to the Bellata Gurley Action Group Against Gas suggests the definition of "improvements" is a legal grey area that may be tested regarding a landowner's right to refuse access.

The Act defines an improvement as a "substantial building, dam, reservoir, contour bank, graded bank, levee, water disposal area, soil conservation work or other valuable work or structure".

The EDO's Sue Higginson said there had been no case to test the definition directly, but other cases heard under the Mining Act had taken a fairly broad view as to what could be considered an improvement.

She said there were clear parameters regarding the right of refusal where a home, garden, vineyard or orchard was in the vicinity of the proposed mining activity, but in certain circumstances, improvements might be defined as improved pasture or regeneration of degraded land.

"Certain facts might present where these matters can be tested," Ms Higginson said.

"For example, if a CSG company is forcing its way on to certain land through arbitration, and the landowner considers that part of the land has an improvement on it and can show the improvement is a 'substantial and valuable' improvement... it could be argued that CSG activities cannot occur on that part of the land."

Neither Metgasco nor Energy Minister Chris Hartcher responded to questions from The Echo about the implications of this legal advice.

For another legal opinion about landowners' rights in relation to CSG, see On Your High Horse on page 15.