Essay: Heigh-ho, heigh-ho, to mines we won’t say no!

The following essay was submitted for assessment for a 2/3 year rural planning subject. It did okay – the main critisism was under-referencing which, in hindsight, is probably legitimate. Notwithstanding this, I enjoyed writing this one, even though the subject matter worries me. Deeply.

Back to normal posts soon, I promise.

 

Heigh-ho, heigh-ho, to mines we won’t say no!

Why land use planning legislation should be bolstered to better address the present conflicts between mining and agriculture in Queensland.

“We dig up diamonds by the score
A thousand rubies, sometimes more,
But we don’t know what we dig ’em for,
We dig dig dig a dig dig.
(Whistle)

Heigh-ho, Heigh-ho, Heigh-ho;
Heigh-ho, Heigh-ho,
It’s home from work we go”
(Whistle)

(Churchill & Morey 1937)

Figure 1: CSG Gas Well. Source: <http://static.lifeislocal.com.au/multimedia/images/full/1479714.jpg&gt;, (Newcaslte Herald).

The little people featured in the famous folktale retold by The Brothers Grimm and immortalised by Walt Disney’s first full-length animated film Snow White and the Seven Dwarfs, were miners. Charitable, cooperative and hard working small businessmen, portrayed to be the epitome of mine workers of the time. In the Disney film, the mine site is lavishly animated to be a clean and jovial place, where diamonds sparkled in waiting, to be plucked from the earth by a Happy, Sneezy, Sleepy, Dopey, Bashful or Grumpy miner; a portrayal that was as much a fiction then as at any time in history. Mining was, and still is, a messy business.

It’s also become very big business. Results from the 2009-10 ABS Economic Activity Survey published by the Australian Bureau of Statistics (ABS) found that of the 18 industrial categories represented, mining accounted for the 5th largest proportion of sales and service income, but employed the 3rd lowest proportion of workers (ABS 2010, p. 40). Furthermore, as the most profitable industrial category, a more detailed investigation reveals that 4 out of 6 mining businesses are classified as ‘large’ in size, and the remaining 2 are classified as either ‘small’ or ‘medium’ (ABS 2010, p. 20). Compare this with the time when Snow White and the Seven Dwarfs first appeared in Australian theatres (1939), the mining industry has grown substantially, as have individual mining operations (Crommelin 1983). Unlike The Seven Dwarfs, modern day miners are the little people of industry no more.

The growth of mining activity in Australia has been closely shadowed by an increase in the potential for land use conflict. As mineral exploration and extraction operations have expanded, there has been a continued encroachment on land historically reserved for agricultural and horticultural production (DEEDI 2010). Notwithstanding historical precedents for such or similar conflict, the relationship between mining legislation and land use and development planning legislation is being tested in places where both appear to pursue contradictory purposes. Coal seam gas (CSG) exploration and production is a recent example of mining related activity that is seen as controversial, and a high profile example of where questions arise regarding both traditions of legislation, and whether a better outcome could be achieved.

This essay aims to explore the controversy surrounding CSG exploration and production activities in Queensland. In doing so, it will outline the main issues of concern to agricultural and horticultural land users, and the legislative framework around which land use conflict is managed. This essay will then present some of the contradictions that arise within the legislative framework and how the objectives of land use planning legislation are undermined by the entitlements of miners protected by the provisions of minerals and resource legislation. Finally, this essay will discuss the plight of agricultural land users in their opposition to large scale mining interests. As the new little people of industry, should planning legislation be bolstered to better protect the rights of agricultural land users in their conflict with the mining industry?

 

Exploration for coal seam gas, or CSG, first occurred in Queensland during the 1980’s (DEEDI 2011). Commercial reserves of the embedded liquid natural gas (LNG) were soon detected, leading to the commencement of commercial production at 10 sites in the 1990’s. By 2010, more than 600 production sites had been established across the Bowen and Surat Basins, positioning the state as Australia’s leading producer of CSG. As an energy source, LNG is regarded as a low emissions alternative to coal and oil. It is cheaper and cleaner to extract; and when burned, emits less carbon dioxide per joule of energy produced (<http://www.abc.net.au/4corners/special_eds/20110221/gas/default.htm&gt;, February, 2011). It is becoming increasingly sought after as an industrial fuel locally, and as an energy commodity overseas. Queensland’s CSG industry is regarded as an important part of Australia’s rich resource future.

CSG naturally accumulates within layers of coal, up to 1200 meters below the Earth’s surface (<http://www.abc.net.au/catalyst/stories/2721216.htm&gt;, October 2009). To access CSG, wells are drilled through which saline water is pumped to the surface releasing the gas from the coal seam below. Increased yields are achieved through a process called ‘hydraulic fracturing’ (or fracking), which requires that large amounts of water, sand and chemicals are pumped down the well. The practice is considered controversial because of the potential for the residual chemicals to contaminate aquifers, and the accumulation of wells bringing saline water to the surface of the landscape. Controversy, uncertainty and secrecy have caused tension between resource exploration permit holders, farmers, and government.

To a resource exploration permit holder, the prospect of producing and supplying LNG to a growing and lucrative local energy market, and the increasingly profitable export markets of Asia and the Middle East, is an attractive one. Given that CSG is an easier, faster, and cheaper fuel to extract, process and transport than other resources, CSG offers a particularly lucrative opportunity in an industry renown for lucrative opportunities (<http://www.abc.net.au/4corners/special_eds/20110221/gas/default.htm&gt;, February, 2011). Investment in the CSG industry is regarded as a sound resource industry investment by most industry analysts, and is strongly supported by the Queensland state government (Queensland Resource Council 2010).

Furthermore, successive Queensland governments have regarded CSG as both a viable and attractive source of fuel for use in local alternative industrial energy production (DEEDI 2010). The CSG industry has gained strong support for the exploration for, and establishment of CSG production sites through legislation, funding and the granting of exploration licences and extraction contracts. CSG is regarded by the Queensland government to be a “clean” alternative to coal (DEEDI 2011, p. 1), and is considered to be an important component of its strategy to move toward a ‘low carbon economy’. However, many agricultural and horticultural land holders in the areas most affected by the proliferation of Queensland’s CSG production facilities share a different view.

For many affected farmers, CSG test drilling by resource exploration licence holders, and the subsequent extraction and production of LNG represents a direct violation of their property rights. Issues regarding rights of entry and refusal; the construction, repair or maintenance of roads, fences and other infrastructure; and the disproportionate level of legislative protection given to the entitlements of miners has led to numerous formal and informal disputes between parties (Lock the Gate Alliance Inc 2011). So too has the loss of rural amenity; and concerns regarding ecological and environmental impacts of CSG extraction practices; and the ‘heavy handed’ negotiation tactics of some permit holders. From a land use and development planning perspective, the conflicts that have arisen are a departure from conventional planning disputes. These are disputes between parties that can both claim legitimate access and usage rights, but where the laws that apply can seem confusing, and at times, contradictory.

The principal mining legislation in Queensland is the Mineral Resources Act 1989. In a similar manner to legislation in other States, this Act makes it clear that mineral resources within the State remain the property of the Crown, and that any party wishing to explore for minerals must first obtain a permit to do so, from the Mining registrar (Mineral Resources Act 1989 (Qld) s. 8). The legislation also makes a distinction between mineral exploration and mineral extraction, by requiring an exploration permit holder to apply for a separate mining claim should they intend to extract any minerals found; and a mineral development license should their claim be successful. Before any mining related activity can occur on privately owned or occupied land, consent from the owner or occupier must first be gained. The withholding of this consent however, isn’t a contingency that legislators have sought to accommodate within the legislation.

Section 18 of Queensland’s Mineral Resources Act 1989 specifically grants the holder of a prospecting permit (the permit holder) the entitlement to enter land bound by the permit, for prospecting purposes (Mineral Resources Act 1989 (Qld) s. 18). This entitlement exists with few exceptions, of which entry on to land on the basis that it is privately owned or occupied is not one of them. To ensure that private landholders are notified of the permit holder’s prospecting activities however, section 19 of the Act requires that permit holders enter occupied land only with the owner’s written consent (Mineral Resources Act 1989 (Qld) s. 19). However, the Act offers no guidance as to how a permit holder might exercise their entitlement under section 18 in the event that by complying with section 19, consent of the private land owner or occupier was to be withheld. The legislative requirement to gain consent from a land owner in this instance, appears tokenistic. It might be argued that the considered use of the term “consent” at section 19 of the Act is a fallacious attempt by legislators to create an illusion of a conciliatory process, when there is no recognition within the act that the new little people might say no. Section 19 might more correctly require that permit holders “notify’ owners and occupiers that their land is about to be subject to mineral prospecting. Once consent has been received by the exploration permit holder, no other consent is required under the act should a mining claim be lodged, or indeed, a production license issued.

This ought not come as a surprise however, given the each of the 7 principal objectives outlined in section 2 of Queensland’s Mineral Resources Act 1999 seek to frame all other considerations around mineral prospecting, exploring and mining. Even those that seek to address issues of potential conflict with aspects of land use and development planning are somewhat dismissive. For example, section 2(c) maintains that an objective of the Act is to –

minimise land use conflict with respect to prospecting, exploring and mining” (Mineral Resources Act (Qld.) s. 2);

or 2(d), to –

encourage environmental responsibility in prospecting, exploring and mining” (Mineral Resources Act (Qld.) s. 2).

In these examples, ‘land use conflict’ and ‘environmental responsibility’ are subordinate to mining related activity. The only hope for the new little people of Queensland is legislation that defends these issues more prescriptively, and offers some level of protection against those seeking to claim their entitlements by wielding relevant sections of the Mineral Resources Act 1989.

But there’s a problem. The legislation best placed to offer this protection in Queensland is the Sustainable Planning Act 2009, and in this instance offers no protection at all. Section 319 of the Mineral Resource Act 1989 specifically states that; “the [Sustainable] Planning Act does not apply to development authorised under this Act” (Mineral Resources Act (Qld.) s. 319). The only exception relates to development that is subject to protection under Queensland’s Heritage Act; generally not applicable in the overwhelming majority of private landholdings affected by an exploration permit or mining claim. The planning laws of Queensland have simply been legislated out to accommodate the interests of miners, the mining industry, and the Crown.

Private agricultural and horticultural land owners have few options available to them, if they wish to prevent mining activity from occurring on or near their productive land. Some are being encouraged to resort to invoking claims of trespass under section 11 of the Summary Offences Act (Lock the Gate Alliance Inc 2011). This can be an effective way to frustrate permit holders, but is mostly futile by virtue of the fact that anyone with a lawful purpose for being on private land can not be determined to be a trespasser (Summary Offences Act (2005) s. 11). This tactic is really just a diversion. The reality is that Queensland farmers have no effective method under law to prevent their productive agricultural and horticultural land from the potential ravages of mining activity.

The priority afforded to the entitlements of miners above and beyond those of food and fibre producers should be of concern to the broader Queensland community. Although mining as a method for accumulating sovereign wealth has historically been given precedence; a robust modern democracy would be well served to scrutinise the validity of pitting the interests of this industry over the other, particularly in the modern sociological, environmental and economic context. Although the demand for mineral and resource products continue to increase globally, so too does the demand for productive farmland (Mudd 2009). As a nation that is rich in both, it would be prudent for the governments of Australia to better balance the future needs of both industries, by enacting a more balanced legislative framework.

As the legislation most relevant to the core issue of land use and development, the Sustainable Planning Act 2009 should be the dominant legislation that determines where mining activity should be located within Queensland. To achieve this, the Mineral Resources Act 1989 would need to be amended to remove section 319, and to instate mining as an activity that is subject to the provisions of the Sustainable Planning Act. In simple terms, mineral prospecting and mining should be regarded as a land use like any other. It should be subject to the same tests that any other land use is, and be restricted to places that are best suited to accommodating it. To exclude mining related activities from the land use and development planning system entirely undermines that system, and precludes those that are most affected by it from a just outcome. For this reason, Queensland farmers have every reason to regard themselves as the new little people.

Although the land use and development conflict between miners and farmers is not unique to Queensland, the proliferation of CSG projects in Queensland has acted as a precursor to what other states can expect in the near future. New South Wales, Western Australia and Victoria have each pushed ahead with the development of CSG exploration and production projects; and each face similar conflicts. Each has also excluded mining from its respective planning system to better facilitate the needs of the mining industry in the scramble to claim an increased share of the minerals and resource market. It appears unlikely however, that any state will move to amend its mining or planning laws to instate mining as a land use like any other. Just as unlikely perhaps, as a beautiful princess walking through a forest, and stumbling across the home of seven dwarfs after having eaten a poisonous apple.

A fairytale, indeed.

 

Bibliography

Australian Bureau of Statistics 2010, 2009-10 Australian Industry 8155.0, viewed 20 October 2011 <http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/9083EC4EA265EC37CA2578B70011B4E9/$File/81550_2009-10.pdf&gt;.

Bungil Shire Council Planning Scheme, Bungil Shire Council, viewed on 24 August 2011, <http://www.maranoa.qld.gov.au/planning/town_planning/Bungil%20Shire%20Planning%20Scheme%20Adopted%20Final%20Nov%20062.pdf >.

Churchill, F & Morey, L 1937, Heigh-ho, Heigh-ho, in W Disney (producer) Snow White and the seven dwarfs“,

Coal Gas, video recording, ABC Television, Sydney, 22 October 2009, viewed on 24 August 2011, <http://www.abc.net.au/catalyst/stories/2721216.htm&gt;.

Crommelin, M 1974, ‘Mineral Exploration in Australia and Western Canada’, University of British Columbia Law Review, vol. 9, no. 1, pp. 38-55.

— 1983, ‘Resources Land and Public Policy’, University of Western Australian Law Review, vol. 15, no. 1, pp. 1-13.

Department of Employment, Economic Development and Innovation 2010, Guide to Queensland’s new land access laws, viewed 25 August 2011, <http://www.agforceqld.org.au/file.php?id=686&open=yes&gt;.

— 2010a, Land Access Code, viewed 25 August 2011, <http://mines.industry.qld.gov.au/assets/land-tenure-pdf/land_access_code_nov2010.pdf&gt;.

— 2011, Queensland coal seam gas overview, viewed 24 August 2011, <http://mines.industry.qld.gov.au/assets/coal-pdf/new_csg_cc.pdf&gt;.

Department of Environment and Resource Management 2011, Protecting Queensland’s strategic cropping land Draft State Planning Policy, viewed on 26 August 2011, <http://www.dlgp.qld.gov.au/statewide-planning/strategic-cropping-land.html&gt;.

Is Coal Seam Gas worth the risk? The backlash to a billion dollar industry, video recording, ABC Television, Sydney, 19 September 2011, viewed on 18 October 2011, <http://www.abc.net.au/7.30/content/2011/s3321223.htm&gt;.

Lock the Gate Alliance Inc 2011, Coal Seam Gas Fact Sheet, viewed 24 August 2011, <http://lockthegate.org.au/csg-facts/csg-factsheet.cfm&gt;.

The Gas Rush, video recording, ABC Television, Sydney, 21 February 2011, viewed on 24 August 2011, <http://www.abc.net.au/4corners/special_eds/20110221/gas/default.htm&gt;.

Manuel, J 2010, EPA Tackles Fracking, Environmental Health Perspectives, vol. 118, no. 5, p. A199.

Mineral Resources Act 1989, State of Queensland, viewed 18 October 2011, <http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/M/MineralReA89.pdf&gt;.

Mudd, G 2009, ‘The Sustainability of Mining in Australia: Key Production Trends and Their Environmental Implications for the Future, Revised – April 2009’ Research Report No RR5, Monash University and Mineral Policy Institute, Melbourne.

Queensland Resources Council 2010, Surat’s big day out, viewed 18 October 2011, <https://www.qrc.org.au/01_cms/details.asp?ID=2206&gt;.

Summary Offences Act 2005, State of Queensland, viewed 18 October 2011, <http://www.legislation.qld.gov.au/LEGISLTN/ACTS/2005/05AC004.pdf&gt;.

Sustainable Planning Act 2005, State of Queensland, viewed 18 October 2011, < http://www.legislation.qld.gov.au/legisltn/acts/2009/09ac036.pdf&gt;.

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