The laws that govern the uses of rural land in Queensland represent the attempts of successive governments to encourage or discourage what were all once fledgling initiatives: whether agriculture, mining, conservation or renewable energy. The result is complex latticework of overlapping land-use restrictions, approval processes and regimes to compensate landowners forced to stand aside for more favoured land uses.
The Queensland Law Reform Commission is undertaking a thorough review of one segment of the land use landscape: contested applications for mining leases and associated environmental authorities. Led by Fleur Kingham, the former president of the Land Court of Queensland, the Queensland Law Reform Commission does not have the power to change laws. Instead, it investigates and makes recommendations on problem-topics selected by the Attorney-General. The Commission is one step removed from the government of the day and the mining lease objection reform agenda is therefore likely to continue under Queensland’s new LNP government.
The Commission’s work to date, revealed in a consultation paper published in July, should be embraced because it strikes a rare, carefully-considered balance between the interests of private landowners and miners. However, to better embed fairness in the system, the Commission should embolden the proposed role of independent experts.
One of the most innovative proposals from the Commission is the insertion of an ‘Independent Expert Advisory Panel’ into the decision-making process. For some mining projects, the Commission suggests a panel should be commissioned to provide scientific and technical advice to the Government authority assessing the environmental authority application.
The concept of Government-commissioned independent experts should be warmly welcomed. One of the major deficiencies of the current mining lease objection process is that landowners who wish to sustain a challenge to a mining company’s plans are quickly forced to incur tremendous costs on scientific and technical experts to counter the weight of evidence presented by the miner.
However, the Commission’s thinking does not yet go far enough. The expert panel’s role should be more extensive than the Commission suggests, it should be engaged sooner, and it should be funded by the mining project proponent.
Instead of assessing only environmental impacts relevant to environmental authorities, the independent expert panel should also be resourced to produce evidence relevant to whether a mining lease itself should be granted, including about whether the project is an appropriate land use taking into consideration the current and prospective uses of the land. For example, the extent to which agricultural production on the site and surrounding land could be impaired in perpetuity, and the economic and community impacts of that impairment, should be weighed up against the projected benefits of a limited-life mining project.
Further, the independent expert panel should be convened early in the assessment of each project. The Commission suggests that a “participation process” in which landowners and others could make submissions about a proposed mining lease and associated environmental authority should occur before an expert panel is formed to advise the Government decision maker. This misses the Commission’s own target for improved quality, consistency and transparency in the decision-making process. Instead, the panel should complete and publicly publish its reports before the opportunity to make submissions opens, so that submitters can draw on the panel’s objective analysis in forming their submissions.
Finally, there is no mention in the Commission’s latest paper about how the expert panels will be funded. While it is integral to the concept that a panel must be Government-commissioned and independent, the costs of the panel should be funded through application fees payable by the mining project proponent. This will be especially important if the expert panels are to have the expanded role necessary to support a new decision-making process that truly innovates for quality, consistency and transparency.
If the new Queensland Government makes the most of the Queensland Law Reform Commission’s work on mining lease objections, it could form the basis for more comprehensive reform of the State’s land use laws. Particularly in a rural context, they are long overdue serious attention.
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