Landowner's Rights with Gas Exploration and Access to Farm Land
April 19, 2023
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With the moratorium on exploration of on shore gas resources being lifted in the northern regions of the State, oil and gas companies are now seeking access to farming land to determine the location and size of reservoirs.
If you are approached by a petroleum explorer seeking access to your land, it is important that you understand your rights and consider the impact that exploration may have on your farming operations.
We have prepared this article to assist farmers in the initial stages of dealing with land access requests. In later articles in this series, we will discuss (in further detail): land access agreements, compensation for land access and what happens when access and compensation cannot be agreed.
Landowner’s rights
Petroleum activities in Western Australian are governed by the Petroleum and Geothermal Energy Resources Act 1967 and related regulations.
Some key provisions to be aware of are:
- An Operator (the company responsible for any activities taking place on a Petroleum Title) must obtain written consent to access private land;
- The Operator must negotiate compensation with the land owner (to compensate the landowner for loss and damage, including for disruption of farming activities);
- Activities may not commence until an agreement between the landowner and Operator has been reached; and
- If compensation cannot be agreed during negotiations, the Magistrates Court has the power to fix the amount of compensation.
It is important that the agreement between a landowner and Operator is fully and accurately reflected in a written contract. In 2015, Bailiwick Legal assisted with the development of a model agreement to assist farming landowners and petroleum operators to determine and document fair and equitable terms for access. See: https://www.appea.com.au/media_release/oil-and-gas-and-farming-industries-endorse-new-framework-for-coexistence-in-western-australia/
for copies of the agreement template and supporting information.
Can access be denied?
Access can only be denied in very limited circumstances. Where the land is:
- Private land not exceeding 2000 m2;
- Used as a cemetery or burial place; or
- Less than 150m from any cemetery or burial place, reservoir or any substantial improvement,
the landowner has the discretion to withhold consent to access for exploration.
Negotiations – things to consider
1. Operator’s proposed activities
When considering a request for land access, it is crucial to understand exactly what activities the Operator is proposing to carry out, where these activities will take place, and a timeline for such activities.
These activities may include carrying out surveys, drilling and rehabilitation, and the construction of required infrastructure (such as roads, gravel pads, bores, workers quarters, fencing, power supply networks and wells). You should consider how intrusive each activity is likely to be, and seek confirmation of the likely time period for each.
2. Impact on your farming operations
It is equally important to consider your own farming program. Exploration activities may impact your farming operations by requiring the relocation of stock or to stop cropping activities, effecting water supplies and access on your farm and /or creating security, biosecurity and safety hazards.
3. Minimizing the effects of exploration on your land
We suggest that you prepare a comprehensive plan of your current and future farming operations prior to finalising any agreement for land access, so that you may properly consider the impacts of exploration, and the measures available to minimise disruption and loss.
Some measure to consider include:
- Agreed compensation (including for loss of income, disruption, professional advice, and any devaluation of your land);
- Changes to your farming plan / operations;
- Negotiating changes to the proposed activities and / or time frames with the Operator; and
- Whether your farming operations or land can benefit from retaining any of the Operator’s infrastructure after exploration has ended.
Seeking Professional Advice
Under the model agreement, Operators are liable for the reasonable costs of a landowner seeking advice, including legal, financial or technical advice, in relation to a land access agreement and/or proposed exploration activities. If approached, we recommend that you seek professional advice to assess, negotiate and document access and compensation arrangements.
If you would like assistance with negotiating the terms of a land access agreement, or for further information in relation to how the above matters may affect your farming operations, please contact us on (08) 9321 5451 or by email at phil@bailiwicklegal.com.au.
For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/
The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.
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