A recent decision of the Queensland Supreme Court has identified a serious deficiency in the State’s biosecurity legislation – that resource tenement holders do not have to comply with landholder’s “biosecurity management plan” (BMP).
The case
In Lang v Westside Corporation Pty Ltd, the Lang family sought an injunction in the Supreme Court to restrain Westside Corporation Pty Ltd (Westside) from accessing the Lang family’s property until it agreed to comply with Lang’s BMP. A conduct and compensation agreement was already in place in respect of a petroleum lease affecting the property when, in 2019, amendments to the Biosecurity Act 2014 (Qld) (Biosecurity Act) introduced the requirement for registered biosecurity entities to have a BMP.
Westside argued that under to the Biosecurity Act, it was exempt from complying with the Lang family’s BMP because it had a legal right to access the land “under an Act” – the Petroleum Act 1923 (Qld) (Petroleum Act).
The Lang family contended that the petroleum lease itself, not the Petroleum Act, was the source of Westside’s right to enter the land, meaning Westside was not exempt “under an Act”.
The Court agreed with Westside that the Petroleum Act was the source of the grant of the petroleum lease and ultimately, Westside’s entitlement to enter the land. While this decision related to access for a petroleum tenement, the same conclusion would likely apply to other tenements under different legislation (for example, exploration permits for minerals and coal).
What does this mean?
By confirming that resource companies fall within the exemptions under the Biosecurity Act (which also extend electricity authorities, statutory authorities and licence or permit holders), the decision highlights the legislative gaps in landholders’ ability to manage property-specific biosecurity risks.
Pending any legislative reform, the best opportunity for landholders to address the issue is when approached by resource companies with a proposed conduct and compensation agreement or other access agreement. Biosecurity protocols can be negotiated into such agreements.
However, resource companies and other statutory authorities have certain rights to access land without being required to first negotiate terms of access with a landholder. In those scenarios, landholders are left with minimal tools to incentivise resource companies to take note of particular biosecurity concerns. However, even exempt entities have a “general biosecurity obligation” under the Biosecurity Act.
Given a BMP’s purpose is to ensure that third party visitors are aware of a property’s particular biosecurity risks and take precautions to manage those risks, it is curious that resource companies regularly entering rural land on which livestock production businesses operate fall outside the scope of this regulation.
Thynne + Macartney is experienced in negotiating with resource companies and can assist landholders in ensuring agreements address adequate biosecurity protocols as part of the tenement holder’s obligations.
About the Author
