SELECT COMMITTEE ON LAND ACCESS

Thursday, 18 November 2021                     HOUSE OF ASSEMBLY                                    Page 8426 – 8433

The Hon. G.G. BROCK (Frome) (11:29): I bring up the final report of the select committee, together with minutes of proceedings and evidence.

Report received.

The Hon. G.G. BROCK: I move:

That the final report of the committee be noted.

This Select Committee on Land Access was established on 2 March 2021 to inquire into the laws that apply when an exploration or mining company wishes to carry out activities on land owned by a private landowner. In South Australia, these landowners are frequently farmers who are running long-established agricultural businesses on the land the company seeks to access.

Mining and agriculture are both billion-dollar primary industries. Their value to South Australia cannot be overestimated. Together, they produce critical commodities, generate exports and create wealth and vital employment. They are the passion and livelihood of many South Australians, and their prosperity benefits us all. While they are fundamentally different industries, what they have in common is that they are both reliant upon access to land.

South Australia is fortunate to have an abundance of mineral resources waiting to be mined, but much of this lies below our best agricultural land. This land is estimated to amount to as little as 4 per cent of the state’s surface area and it is tightly held, often by multigenerational farming families for whom it is not only their workplace but also their home.

When a resource company comes along seeking to access the land for mining—which they have the right to do—the result can be a conflict that takes too long, costs too much and challenges our sense of what is fair. Balancing the competing interests of mining and agriculture is a difficult task of compromise, and compromise never leaves anyone entirely satisfied.

South Australia’s land access regime has been under review since the Leading Practice Mining Act’s Review began in 2016. After much consultation and debate, changes to the mining laws came into effect on 1 January 2021. The reforms were an improvement, but the select committee was established in recognition that there was still discontent amongst some stakeholders. There is still more to come.

The select committee aimed to give a voice to those who felt they had not been heard and who had new ideas to put forward to make South Australia’s land access truly national best practice. Our aim was to ensure that South Australia’s land access laws fairly balance the rights of both land owners and the resource industry.

The committee received 36 written submissions and heard oral evidence from 45 witnesses over the course of 11 hearings. The organisations and individuals who provided the submissions and spoke to us were landowners, resource companies, industry associations, community action groups and government bodies. They presented a diverse range of views, and I am very grateful to everybody who took the time to do so.

The committee heard evidence predominantly in Adelaide, but also took the inquiry to the regions. There were hearings at Wudinna and Tumby Bay on Eyre Peninsula and in Ardrossan on Yorke Peninsula. The committee also undertook two site visits to Naracoorte and Penola in the South-East to see firsthand examples of properties affected by the existing land access regime. The select committee has made six recommendations aimed at addressing several broad areas of concern that were raised with the committee in evidence.

Firstly, the Department for Energy and Mining needs to be a strong regulator of the mining industry. The department is perceived by some landowners as having a conflict of interest, as it is both the proponent and the regulator of mining. Some operators in the resource industry exhibit poor conduct and are not held to account. For example, the committee heard some appalling examples of poor rehabilitation of land after exploration or mining activity had concluded. Regulation must be proactive, consistent and effective.

Secondly, agricultural land is not sufficiently protected from invasive mining. Our agricultural land is enormously important to the future prosperity and security of the state. We simply cannot afford to lose it to mining or anything else.

Thirdly, the committee looked at the experiences of landowners trying to navigate the land access regime and identified specific areas for improvement. These included providing landowners with adequate compensation and reimbursement of costs, having regard for the long life of mining leases and how the uncertainty of their success impacts landowners’ ability to plan in the long term, simplifying the complex nature of the regime that leaves landowners struggling to find time to respond to land access requests and having consideration for how neighbouring properties can be affected by nearby operations.

This select committee listened carefully to those concerns and formed its recommendations to support both the resource industry and the agricultural industry to thrive alongside each other. The six recommendations are:

1. That a mining ombudsman be established. This is an important reform aimed at strengthening regulation so that unscrupulous resource companies can no longer get away with doing the wrong thing. The ombudsman would oversee and enforce regulation of exploration in accordance with the Mining Act and develop and administer a code of conduct for exploration. It would also incorporate the existing Landowner Information Service, which the committee found to be an excellent and effective resource.
2. That the Department for Environment and Water undertake a comprehensive mapping of existing land use and attributes with a view to the development of a standalone planning legislation that will afford greater protection for agricultural land.

Our agricultural land is limited and must not be lost to invasive mining. Any new legislation would be informed by investigation of the land access regimes in Queensland and New South Wales, which were the two jurisdictions most frequently referred to in evidence as having effective measures for protecting agricultural land. It would also build upon work already undertaken in relation to land-use potential by the Department for Environment and Water and the Department of Primary Industries and Regions.

3. That the amount available to a landowner for the cost of obtaining legal assistance in relation to exempt land under section 9AA of the Mining Act be increased to $10,000 and the scope expanded to include all professional fees. The current maximum amount of $2½ thousand is simply unrealistic. Consideration should be given to providing an ongoing income stream should a mine be developed.
4. That the notice of entry period before a resource can access land, currently 42 days, be increased to 90 days and that the code of conduct to be developed by the mining ombudsman require explorers to have regard to the impact of the time of year due to the seasonal work of farms. This is to recognise that farms run on inflexible time frames and a resource company wishing to access farmland must respect that.
5. That the mining ombudsman be tasked to simplify the documentation associated with the land access regime, which currently can be very complex and overwhelming for landowners. The ombudsman would develop a template land access agreement in conjunction with the Department for Energy and Mining and also be tasked with providing help to resource companies in the difficult task of identifying every party with an interest in the land.
6. That resource companies undertaking exploration be required to consult with landowners whose properties physically adjoin the land that is the subject of the exploration and keep them informed of their activities. Neighbouring properties may not be directly impacted, but the indirect impacts can be severe.

These recommendations are designed to favour neither mining nor agriculture. Instead, where access is sought and the landowner objects, the conflict should be resolved by a process of negotiation in good faith, including fair compensation for loss. The resource industry, as the instigator of these matters, should be accountable for its actions, respectful of landowners’ rights and environmentally responsible.

Finally, agricultural land, which we recognise is an uncommon and valuable natural resource, should be subject to more rigorous protections. In addition to tabling this report, the select committee wished to take some immediate action to address particular concerns about the regulation of the resources industry. The committee heard evidence of alleged breaches of the Mining Act by resource companies that were reported to the Department for Energy and Mining yet were not followed up, or were seemingly dismissed without proper investigation.

I will mention the example of Mr Barry Stringer, a resident of Naracoorte in the South-East, whose property adjoins a limestone quarry. Mr Stringer has become very frustrated because his repeated complaints to the department about excessive noise and vibration from the quarry have never been addressed to his satisfaction. He is one of many landowners who gave evidence to the committee that, in their experience, the department is not a reliable, impartial and effective regulator.

The committee therefore resolved, as a result of evidence received by the committee, to refer matters to the Ombudsman to investigate the effectiveness with which the Department for Energy and Mining conducts the following activities:

1. Regulates, considers and investigates complaints against exploration and mining operations regulated by the Department for Energy and Mining.
2. The enforcement of possible breaches of any regulation, statute, or agreement by industry participants with the Department for Energy and Mining as a result of any complaint or notification.
3. The breaches detailed in the committee tabled report.

The manner in which exploration and mining operational conditions are monitored and enforced.

It is critical that landowners can have confidence in the regulator. The select committee has referred this matter to the Ombudsman for investigation as an action that can be taken right now to improve that confidence.

 

I would like to also thank the members of the committee—the member for Narungga, the member for Giles, the member for West Torrens, the member for Davenport and the member for Flinders—who share my interest on this important topic. We have collaborated very well to form recommendations that we believe represent constructive steps forward in this complex matter. I would also like to thank the parliamentary committee staff, Mr Shannon Riggs and Ms Lucy Dangerfield, for their support.

In closing, I would also like to thank very sincerely all the people who came forward and expressed their inner views and some of their inner thoughts and their frustrations that they have been bottling up. Again, I commend this report to the house.

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Minister for Energy and Mining) (11:40): I will say a few short words in response to the Chair of the committee in his outlining the report, both as a country and outback member of parliament and as the Minister for Energy and Mining. I am very pleased to hear that the committee found that the reforms our government put in place on 1 January this year are recognised as a significant improvement and also that there is more work to do, because that is 100 per cent in line with the comments that I have made publicly as minister, the comments I have made publicly as a country member of parliament and the work that our Department for Energy and Mining has been doing.

We have consistently said that we would make improvements, essentially in bite-size chunks, to deal with what can be dealt with, put it in place and then move on and deal with the next set, put it in place; the next set, put it in place. While the report has only just been made public 10 or 15 minutes ago, so I have not had a chance to read it, it does seem that the committee’s recommendations are largely in line with exactly what our Department for Energy and Mining and our government are doing anyway, which is good.

I have no doubt that when the committee members and members of this house more broadly become aware of the work that we have been doing in regard to the next set of reforms, subsequent to the very positive ones that we put in place on 1 January 2021, and it is able to see the fantastic work the Department for Energy and Mining has done, those members who contributed to this report will be very satisfied with the progress that is already underway and work that was being done on behalf of landholders and the resources industry to take another very positive step forward for both of them.

Mr TRELOAR (Flinders) (11:42): As a member of this committee, I would like to contribute today and say that I am very pleased that we have got to a point where we have been able to table a report with recommendations. The Select Committee on Land Access was established on 2 March 2021 by a resolution of the House of Assembly. Its purpose was to inquire into the laws that apply when an exploration or mining company wishes to carry out activities on land owned by a private landowner.

In South Australia, these landowners are frequently farmers running long-established agricultural businesses on the land that the company seeks to access. The committee aims to ensure that South Australia’s land access laws fairly balance the rights of both landowners and the exploration and mining industry.

Land access had been a subject of much review and debate in the years preceding the select committee, and certainly as the member for Flinders representing much of Eyre Peninsula and the agricultural areas of Eyre Peninsula, I am well aware of the debate and discussions that have been going on around this.

In 2016, a review of mining legislation led to a range of reforms including to land access laws that came into operation on 1 January this year 2021. While these reforms were an improvement, the select committee was established in recognition that there was still discontent amongst some stakeholders. The committee sought to hear these voices and to make recommendations to ensure South Australia’s land access regime was effective, equitable and an example of national best practice.

The committee invited written submissions; heard oral evidence, both in Adelaide and regional locations; and conducted two site visits, including one to Mr Barry Stringer in the South-East. Evidence presented to the committee offered perspectives from the agricultural industry, the resource industry, state and local government, community organisations and individuals impacted or affected by land access issues.

At the heart of the matter is the conflict that arises when two different but equally important parties have interest in the same land. On one hand, mineral wealth is a valuable public asset and mining is of great economic importance to the state. On the other hand, a landowner has a right to enjoy their land and, in the common situation where the landowner is a farmer, to operate their business. Agriculture is also of great economic importance to the state.

Based on the evidence, the committee found that neither mining nor agriculture should be favoured in matters of land access. Instead, where access is sought and the landowner objects, the conflict should be resolved by a reasonable process of negotiation in good faith, including fair compensation for loss. The exploration and mining industry, as the instigator of these matters, should be accountable for its actions, respectful of landowners and environmentally responsible. Further, agricultural land should be subject to more rigorous protections.

To that end, the committee made six recommendations to improve South Australia’s land access regime. The recommendations aimed to address several broad areas of concern that were raised with the committee in evidence. Our Chair, the member for Frome, has already run through those recommendations, so I will not go through them again, but certainly they will be available on the parliamentary website after today.

The first issue the committee needed to address and deal with and consider is that the Department for Energy and Mining needed to be a strong regulator of the mining industry, overcoming a perceived conflict of interest as both the proponent and regulator of mining, and that is something we heard time and time again. One of our recommendations is that a mining ombudsman be established to oversee the process to at least remove that perception.

Agricultural land was not sufficiently protected from invasive exploration or mining, given its importance to the future prosperity and security of South Australia. Compensation and reimbursement of costs for landowners in disputing land access was not always adequate or properly accounted for the impact of exploration or mining upon a landowner’s home and business. I will come back to that point in my closing remarks.

Rehabilitation of land after exploration of mining had concluded was not always performed correctly due to lack of standards and/or funds. The long life of mining leases and the inherent uncertainty of their success had a detrimental impact upon landowners’ ability to plan for the land and businesses in the long term.

As I mentioned earlier, as the member for Flinders covering a broad agricultural area in the west of the state, I have seen many mining proposals put over the last 12 or so years that I have been the member, and I am going to stand here and say today that not one of them has developed into a mining operation, and therein lies the difficulty and dilemma for landowners who have this proposal, which will impact significantly their livelihoods and the land they earn that livelihood from, hanging over their head.

Some operators in the resource industry had exhibited poor conduct and were not held to account. I continue with the dot points: landowners could feel overwhelmed by the complexity of land access issues on which they were not required to be experts and could struggle to find time—farmers are busy people—to respond to requests for access while also running their businesses.

The last dot point we considered was that neighbouring properties were not always consulted or taken into consideration in a land access arrangement, although they may have been severely impacted by nearby exploration or mining or, for that matter, be considered as part of the broader mining proposal.

By strengthening South Australia’s land access regime, the committee hoped to support both the exploration and mining industry and the agricultural industry to thrive alongside each other. So, they were the recurring themes we sought to make recommendations on. The Chair of the committee, the member for Frome, has identified those recommendations to the house and they will be available.

I shared this with the committee in one of our closing sessions—and unfortunately I did not come to this conclusion until relatively late in the inquiry—and I am going to term it a bit of a lightbulb moment for me, the member for Flinders, an active farmer for some 30 years, retaining an interest in a farming property in the 12 years that I have been here and have every intention of going back to that property and becoming more involved with agricultural production in the future.

My thinking is that the reality of this situation is that the world is not going to starve if some of our land here in South Australia is given over to an alternate use. It has often been mentioned, and is included in the report, that just 4 per cent of South Australia is classified as agricultural land. It is a small percentage, but the reality is that it is a huge area—probably as much land as is contained in some European countries. There is plenty of land.

But it is not about the land. It is about families and their businesses. It is about the people and how those people are treated and the resulting impact on their families and businesses. We have heard from families who have become really quite distraught about the way they have been treated along the way. Mining companies and farmers both need to treat each other with respect as these negotiations go on, understanding full well that they both have a right to be there.

I was pleased to hear the Minister for Energy and Mining speak just a moment ago and indicate that his department is working towards further possible changes to this legislation and further improvement in the way these two industries develop in the years ahead.

Mr HUGHES (Giles) (11:51): I will only take a short period of time, given the comprehensive description of both recommendations and the process we entered into from the Chair, the member for Frome. I fully endorse the light-bulb moment from the member for Flinders, and I think that does bring us down to the nub of the issue and sometimes the conflict that occurs.

My electorate has the largest mines in the state: Olympic Dam, Carrapateena, OZ Minerals, the deposits in the Middleback. They all make an enormous contribution to our state, both in terms of jobs and financially. There are mine proposals on Yorke Peninsula and mine proposals on Eyre Peninsula. Whether they ever get off the ground, who knows, but clearly they have caused angst in those localised areas where exploration is going on.

The process we entered into with the committee once again emphasises the important role of committees. The media will never be interested in committees because there is no colour or movement, and usually there is no intense conflict. This was yet another example of people of different parties getting together and, in a deliberative process, coming to a set of recommendations and the compromises that were entered into, after listening to both the mining industry and those people from the primary industries sector.

What we have come up with is an incremental set of improvements. Probably one of the important elements, given the perception amongst people within primary industries (or at least some people within primary industries) was that the Department for Energy and Mining was often seen as both the regulator and the promoter of mining. The way that we got around this to address some of those concerns, whether perceptual concerns or concerns based in reality, was to recommend the establishment of a mining ombudsman that would be independent and oversee that things are done the way they should be done. Of course, a code of conduct which is to be developed will form a part of that, and I think that is a real incremental improvement.

I want to finish off by recognising the role of the parliamentary officers. They did a great job. Lucy Dangerfield and Shannon Riggs both contributed excellent input into the process. Of course, I thank the members for the manner in which they took on board all the information presented and the way they then formulated the recommendations, which I believe will lead to an improvement without massive wholesale change because we recognise that both our primary industries and our mining industry make a significant contribution to the wellbeing of our state. I am very aware that the member for Narungga wants a couple of minutes, so I will close on those remarks.

Mr ELLIS (Narungga) (11:55): I will make just a brief couple of remarks. As members would be well aware, this issue has been quite a highly charged one in the seat of Narungga over not just this term of parliament but terms before that.

At least from where I sit, it was tremendously pleasing to see the parliament endorse the select committee, and if I could extrapolate from the words of the member for Giles it is wonderful to have a select committee the aim of which is to improve the lives of South Australians—the actual people who vote for us. It is tremendous to see a report of a select committee tabled today which we can talk about and which might have a tangible benefit to the people who vote for us and the people who send us here to do a job.

It was wonderful to be a part of it, and hopefully the recommendations, which I think are wonderful and which I will touch on ever so briefly, will be endorsed, and hopefully we can really strive to make sure that that balance is fairly struck between miner and farmer. It has been tremendous to get out and visit regional South Australia as part of this. I knew from my experience in the electorate office that there were quite a large number of people who had strong views about this topic. It was pleasing that the committee saw fit to get out on the road, visit with those people and hear from them directly how this was impacting them.

It was quite clear that, as the member for Flinders said, the impost on families and people can be quite damaging. The indefinite period of time over which a mining lease might be sitting over the top of your land and the uncertainty about what might happen to that mining lease—whether it might get off the ground or whether it will not—clearly has an impact on people who are suffering from that uncertainty, and that was plain for us to see as a committee when we were out there conversing with those people.

I would like to touch on the recommendations, and they have been articulated carefully by the Chair of the committee. Particularly recommendations 1 and 2, I think, will be tremendously beneficial to the seat of Narungga. There were ample complaints that the regulator was not doing an appropriate job of enforcing the rules on exploration companies particularly and, to borrow a phrase that is commonplace currently, there was clearly a perceived conflict about where the Department for Energy and Mining was both the promoter and the regulator. It is pleasing that recommendation has been made.

Interestingly enough, I did meet with SACOME yesterday and, whilst the committee has recommended that the regulator be split off from the Department for Energy and Mining, SACOME suggested that perhaps it would be worth investigating whether the Department for Mining remain the regulator and the promoter be split off and sent elsewhere. To be frank, that is a matter I do not think the committee considered throughout the course of our deliberations, but it does indicate that SACOME has given some consideration to how that might best be done.

Recommendation 2 I know does not have the support of SACOME, which they made clear yesterday, but I think it would mean wonderful progress for the State of South Australia. There would be some work done on mapping the state, as has been done in Queensland and New South Wales.

They have identified the parts of their state they consider to be strategic cropping land and the parts of their state where they might consider that the hurdle should be slightly higher for those mining companies to jump over that wish to enter into those parts of the state. I think that would be tremendously beneficial work, and recommendations 1 and 2, I think, especially would be wonderful.

I reiterate the thanks to Lucy Dangerfield and Shannon Riggs for the work they did on the committee. I commend the report to the house.

The Hon. G.G. BROCK (Frome) (11:59): I would like to thank the Minister for Energy and Mining for his contribution and also the members for Flinders, Giles and Narungga. One of the things I want to make quite clear is that I was very impressed with the contribution from both sides of politics on this committee. There were lots of suggestions and recommendations from both sides—all parties—to get the best opportunity for our regional people in particular. Again, I commend the report.

Before I do that, even though these are recommendations, I sincerely hope that, whoever the government is in the new year, these recommendations are implemented. Far too often, recommendations from a select committee, or any committee, are recommendations only. I stress to both sides of politics that whoever is in charge next year after the election should implement these recommendations and not just let them sit on the Notice Paper. Thank you for the opportunity to chair the select committee. It has been a great privilege.

Debate adjourned.