Pastoral Land Management and Conservation (Renewable Energy) Amendment Bill

Committee Stage

In committee.

(Continued from 24 July 2014.)

Clause 1.

The Hon. I.K. HUNTER: Very briefly, I have held discussions on this bill with the various parties and I would like to make a few points before we go to the amendments. I would like to reaffirm that a great deal of consultation has occurred on this bill. In the original drafting, the Pastoral Board, the Commissioner for Aboriginal Engagement and South Australian Native Title Services officers were all consulted. A three-month public consultation period occurred where all native title holders, pastoral lessees and key peak bodies in the state were provided with a copy of the proposed changes and given an opportunity to comment on them. I am advised that the majority of lessees were supportive of the bill and saw it as potentially being of commercial benefit. Legal bodies representing native title holders either did not raise any issues or welcomed the proposed changes.

In relation to native title holders and the Indigenous land use agreement that will need to be negotiated with native title holders before a wind farm licence can be issued, I have been asked how 95 per cent of the wind farm payment will be distributed between prescribed interested parties and whether the percentage could be negotiated through an ILUA.

Payments under new section 49K will be made on an equitable basis to prescribed interested parties, and the word 'equitable' is key in this situation. Potentially, a percentage of payment from the 95 per cent could be specified in an ILUA, as long as the responsible minister is satisfied that it is equitable for all prescribed interested parties. In determining whether it is equitable, the minister would need to take into account all relevant interests, including pastoral lessees.

The Hon. J.M.A. LENSINK: I thank the minister for outlining the consultation. I may have missed it in his contribution, but is he saying that the government has consulted on the amendments to the original bill and/or any of the amendments to the bill that has been tabled?

The Hon. I.K. HUNTER: My advice is that, in relation to the amendments, further consultation has occurred with the South Australian Chamber of Mines, DMITRE and the Pastoral Board.

The Hon. J.M.A. LENSINK: What about Indigenous groups? What have they been consulted on at this stage?

The Hon. I.K. HUNTER: My advice is that they were involved in the original drafting process but have not had further consultation required in regard to the amendments.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. J.A. DARLEY: I move:

Page 3, lines 7 to 12 [clause 4(2)]—Delete subclause (2)

This amendment is, if you like, a test clause for all of my amendments which seek to remove the provisions relating to wind farms from the bill. It is very important that we understand that pastoral lessees have 14-year rollover leases which continue for as long as the conditions on the lease are adhered to, which could effectively be in perpetuity.

The bill gives very little regard to the rights of those pastoral lessees. In fact, aside from the requirement that the minister consult with and have regard to the views of pastoral lessees, there is no protection whatsoever afforded to lessees in pastoral areas. The same can also be said for native title holders. That is, in essence, the basis of my concern and, indeed, of those groups that have contacted my office in relation to this bill.

I appreciate that we are talking about crown land, but I do not think that that in and of itself should effectively mean that pastoral lessees have no rights over their land which, as I mentioned before, could effectively be held in perpetuity.

It is clear to me that these amendments will most likely be defeated, but I think it is important to place on the public record my position with respect to this issue. It is about protecting people’s rights, due process and ensuring appropriate levels of consultation.

I will at this point also indicate that if my amendments are defeated, I will be supporting the Hon. Michelle Lensink’s amendments that go some way towards addressing the concerns that I have, especially in so far as they provide a right of veto for interested parties, a more formal process for the payment of compensation from the fund and, importantly, appeal rights with respect to payment agreements.

I certainly commend the honourable member for her position on this issue and for ensuring a high level of accountability and transparency in the bill. I commend the amendment to all honourable members.

The Hon. I.K. HUNTER: I am a little puzzled by the honourable member’s explanation of his amendment. We, of course, oppose the amendment. The amendment proposes to delete any reference to ‘wind farm’ or ‘wind farm licence’. As this bill allows for the coexistence of wind farms with the activity of pastoralism, the definitions of a wind farm licence need to remain. I think the intention of the honourable member in his amendment is to make it impossible for wind farm licences to be issued but to allow solar farm licences to be issued. So, clearly he has support for the bill in relation to the solar aspects but not for wind farm aspects, but now he is speaking to this amendment, talking about issues in terms of rights to lessees or native title holders.

I might remind the honourable member that the amendment set 2 in my name actually provides for some of these issues that he just raised. Land access agreements, of course, will have to be entered into before wind farm licences will be contemplated. People will have to be consulted, and I encourage the honourable member to read those amendment sets a bit more closely. I cannot fathom why, in moving this amendment, he is addressing issues of taking out wind farm licences but leaving in solar farm licences and still not raising the same issues that he has just raised in relation to that.

The Hon. J.M.A. LENSINK: I thank the honourable member for moving his amendment. The Liberal Party will not be supporting the amendment, which effectively removes wind farms from the bill, although we are obviously on the same page as far as providing further rights to pastoralists in this regime and other interested parties, which has been one of our key concerns throughout this process. We will be addressing those issues as we go through the committee stage and I will make further comments at those points.

Amendment negatived; clause passed.

Clause 5 passed.

Clause 6.

The Hon. I.K. HUNTER: I move:

Amendment No 1 [SusEnvCons-1]—

Page 3, lines 20 and 21 [clause 6(1), inserted paragraph (ab)]—Delete 'any licence fees payable under a wind farm licence granted under Part 6 Division 4; and' and substitute:

—

(i) any fee paid for an approval under Part 6 Division 4 to enter and occupy pastoral land; and

(ii) any licence fees payable under a wind farm licence granted under Part 6 Division 4; and

This amendment is linked to amendments Nos 2 and 3. An issue raised by the opposition in discussing this bill revolved around the giving of more clarity for payments in the investigation phase of a wind farm development. The intent of these three amendments (this one and 2 and 3) is to make clearer the payment by a wind farm developer in the investigation phase of a wind farm. New section 49K allows for a payment from the fund to go to prescribed interested parties at the investigation stage of a development before a wind farm licence is issued. As the bill stands currently, there is nothing to stop a wind farm developer from paying an amount, upon approval, to access the land prior to the granting of a licence, but this amendment makes it very clear that the wind farm developer will pay an amount.

The Hon. J.M.A. LENSINK: I thank the minister for drafting this set of amendments, which is a technical issue identified by the member for Stuart, who has forensically been through this piece of legislation and raised a number of issues. This, indeed, was in relation to clarifying whether payments could be made prior to the issuing of a licence, so we will clearly be supporting these amendments.

Amendment carried; clause as amended passed.

Clauses 7 to 9 passed.

Clause 10.

The Hon. I.K. HUNTER: I move:

Amendment No 1 [SusEnvCons-2]—

Page 5, lines 6 to 10 [clause 10, inserted section 49A, definition of access agreement]—Delete the definition of access agreement and substitute:

access agreement—each of the following are access agreements in relation to pastoral land:

(a) an agreement between an applicant for a wind farm licence in relation to the land and the lessee for access to the land, or infrastructure on the land, by the lessee;

(b) if a resources tenement is held over the land—an agreement between an applicant for a wind farm licence in relation to the land and the holder of the resources tenement for access to the land, or infrastructure on the land, by the resources tenement holder during construction and operation of the wind farm,

but an access agreement may not provide for access by a lessee or resources tenement holder to infrastructure associated with a wind farm if access to the infrastructure is not required for pastoral purposes or activities under the relevant resources tenement;

This amendment is linked to amendment Nos 2 through 6 in this set. I understand the Hon. Michelle Lensink wishes to introduce additional rights for pastoral lessee holders in consideration of a wind farm development. Whilst the government does not agree to her exact amendment, I think this package of amendments will go some way to addressing the concerns she has raised with us. The intent is to parallel the process that occurs for existing mineral, petroleum and geothermal exploration tenement holders.

These amendments introduce a requirement for the negotiation of a land access agreement between the wind farm developer and a pastoral lessee before a wind farm licence can be issued. The negotiation of this agreement will give the pastoral lessee an ability to discuss sensitive areas, such as, for example, water points, and to draw up an agreement which addresses the usage of common infrastructure, such as access roads. The wind farm licence will, for safety reasons, include areas such as electrical substations, control rooms and maintenance sheds that need to be locked and therefore cannot be accessed by prescribed interested parties—that is very important. The land access agreement provides for the ERD Court to intervene if requested by either party, and I hope that this amendment set will go some way to meet the concerns raised by the Hon. Michelle Lensink.

The Hon. J.M.A. LENSINK: This issue addresses the Liberal Party's concern that the original bill leaves too much of the decision to grant a licence to the minister, with interested parties playing a fairly passive role in the information provision and consultation phase or through appealing a decision in the ERD Court. We did have a couple of amendments which would have provided interested parties with a right of veto. We are happy with the government's response, which is to incorporate interested parties into its concept of access agreements which are already provided to mining parties, so we will be supporting the government amendment.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Amendment No 2 [SusEnvCons 2]—

Page 6, lines 1 to 4 [clause 10, inserted section 49B(4)]—Delete subsection (4) and substitute:

(4) The Minister may not grant a wind farm licence in relation to pastoral land unless the applicant has—

(a) entered into an access agreement with the lessee; and

(b) if a resources tenement is held over the land—entered into an access agreement with the holder of the resources tenement.

This is a consequential amendment, as will be amendments Nos 3, 4, 5 and 6.

Amendment carried.

The Hon. J.M.A. LENSINK: I move:

Amendment No 4 [Lensink 1]—

Page 6, line 6 [clause 10, inserted section 49B(5)]—After 'period' insert:

, not exceeding 12 months,

This is in relation to the application period. The concern that the Liberal Party had was that the application period was potentially open-ended and therefore we have sought to cap the period at 12 months, so as not to indefinitely inconvenience interested parties.

The Hon. I.K. HUNTER: The government supports this sensible amendment, which limits the time to 12 months and is not quite so open-ended.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Amendment No 3 [SusEnvCons–2]—

Page 6, lines 11 to 14 [clause 10, inserted section 49C(1)]—Delete subsection (1) and substitute:

(1) For the purposes of section 49B(4)(a) and (b), the parties to a proposed access agreement must negotiate in good faith with a view to entering into the access agreement.

Amendment No 4 [SusEnvCons–2]—

Page 6, line 23 [clause 10, inserted section 49C(4)(a)]—Delete 'resources tenement holder' and substitute:

lessee or resources tenement holder (as the case requires)

Amendment No 5 [SusEnvCons–2]—

Page 6, line 31 [clause 10, inserted section 49C(5)]—After 'licence' insert:

, a pastoral lease

Amendment No 6 [SusEnvCons–2]—

Page 7, lines 13 to 16 [clause 10, inserted section 49E(1)]—Delete:

'(provided that the licence cannot prevent the lessee making reasonable use of access roads constructed in accordance with the licence)' and substitute:

(provided that the licence must be consistent with an access agreement entered into in relation to the land)

These amendments are all consequential.

Amendments carried.

The Hon. I.K. HUNTER: I move:

Amendment No 2 [SusEnvCons 1]—

Page 9, after line 37 [clause 10, inserted section 49J]—After subsection (1) insert:

(1a) The Minister may only grant an approval under subsection (1) if the person who intends to enter and occupy pastoral land has paid the fee fixed by the Minister.

This amendment is linked to amendment No.1, and relates to making clearer the making of a payment by a wind farm developer in the investigation phase of a wind farm.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Amendment No 1 [SusEnvCons–3]—

Page 10, line 21 [clause 10, inserted section 49K(1)]—Delete 'Subject to subsection (2)' and substitute:

Subject to this section

This amendment is linked to amendment No. 2 [Hunter-3] and is designed to introduce a mechanism for specific consultation on the wind farm payment with a pastoral lessee. The responsible minister will consult with and have regard to the views of the pastoral lessee before authorising the wind farm payment.

The CHAIR: You could move both amendments.

The Hon. I.K. HUNTER: I will do so, sir. I move:

Amendment No 2 [SusEnvCons–3]—

Page 10, after line 29 [clause 10, inserted section 49K]—After subsection (1) insert:

(1a) Before authorising the payment of an amount or amounts to a prescribed interested party under subsection (1), the Minister must consult with, and have regard to the views of, the prescribed party.

The Hon. J.M.A. LENSINK: This relates to appeal rights, another area of concern that the Liberal opposition had, and so in deference to the government's amendments we have not moved our amendments because the government has come up with an alternative which will provide for an additional regime of consultation prior to the minister being able to grant payments.

Amendments carried.

The Hon. J.M.A. LENSINK: I move:

Amendment No 7 [Lensink–1]—

Page 10, line 30 [clause 10, inserted section 49K(2)]—Delete 'Subsection (1) does not apply' and substitute:

A payment may not be made under this section.

In relation to the contribution I just made, this amendment is part of a suite of additional consultation being provided to interested parties.

The Hon. I.K. HUNTER: We are supporting this amendment. It was originally drafted to be part of the opposition's amendments regarding greater consultation on wind farm payments. As the intent of the government's set 3 of amendments is very similar to the opposition's, we will be supporting this amendment.

Amendment carried.

The Hon. I.K. HUNTER: I move:

Amendment No 3 [SusEnvCons–1]—

Page 10, after line 31 [clause 10, inserted section 49K]—After subsection (2) insert:

(3) Subsection (1)(a) does not apply to a prescribed interested party of a kind referred to in paragraph (d) of the definition of prescribed interested party.

This amendment relates to amendment Nos 1 and 2 from set 1 and is consequential.

Amendment carried.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–1]—

Page 10, lines 32 to 37 and page 11, lines 1 to 15 [clause 10, inserted section 49L]—Delete inserted section 49L and substitute:

49L—Appeals to ERD Court

(1) A person who is dissatisfied with a decision made under this Division may appeal against the decision to the ERD Court.

(2) An appeal must be made in a manner and form determined by the ERD Court, setting out the grounds of the appeal.

(3) Subject to this section, an appeal under this section must be instituted within 21 days after notice of the relevant decision is given to the appellant.

(4) If the reasons of the Minister are not given to the appellant in writing at the time of making the decision and the appellant (within the period specified in subsection (3) as the time within which an appeal may be instituted) requires the Minister to state the reasons in writing—

(a) the Minister must state in writing the reasons for the decision; and

(b) the time for instituting an appeal runs from the time at which the appellant receives the written statement of those reasons.

(5) The ERD Court may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that an appeal be made within the period fixed by this section.

(6) Unless otherwise determined by the ERD Court, an appeal must be referred in the first instance to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (and the provisions of that Act will then apply in relation to that appeal).

(7) Subject to subsection (8), the institution of an appeal does not affect the operation of the decision to which the appeal relates.

(8) The ERD Court may, on application by a party to an appeal, make an order staying or otherwise affecting the operation or implementation of the whole or a part of a decision if the Court is satisfied that it is appropriate to do so.

(9) An order under subsection (8)—

(a) may be varied or revoked by the ERD Court by further order; and

(b) is subject to such conditions as are specified in the order; and

(c) has effect until—

(i) the end of the period of operation (if any) specified in the order; or

(ii) the decision of the ERD Court on the appeal comes into operation,

whichever is the earlier.

(10) The ERD Court must not make an order under subsection (8) unless each party to the appeal has been given a reasonable opportunity to make submissions in relation to the matter.

(11) The ERD Court may, on hearing an appeal under this section—

(a) confirm, vary or revoke the decision or order appealed against;

(b) order or direct a person or body to take such action as the Court thinks fit, or to refrain (either temporarily or permanently) from such action or activity as the Court thinks fit;

(c) make any consequential or ancillary order or direction, or impose any condition, that it considers necessary or expedient.

(12) An order for costs cannot be made against an appellant unless the ERD Court is satisfied that the appellant's conduct in relation to the proceedings was frivolous, vexatious or calculated to cause delay.

This is a very straightforward amendment which seeks, in my opinion, to remove an anomaly in the bill, that anomaly is that there are some disputes which are dealt with by the Environment, Resources and Development Court and yet other disputes by the way of appeal are dealt with in the District Court.

My first reaction when I saw this was to refresh my memory about standing order 193 and injurious reflections on courts of law, but my first thought was that the people who put this in the bill have never been to the Administrative and Disciplinary Division of the District Court because it is a very slow process. At my last attendance there, judgement took one year, and I contrast that with the Environment, Resources and Development Court which has much faster turnaround times and which also, as members would appreciate, has the advantage of facilitated roundtable negotiations between the parties to try to settle disputes without them going to trial.

This amendment seeks to have both types of disputes, whether it is a dispute over a land access agreement or an appeal in relation to the terms and conditions of a wind farm licence, dealt with in the same court. It is also a logical amendment if members pay attention to the proposed new section 49E, which reinforces the fact that wind farm licences need to be consistent with the access agreement. It makes no sense to have one forum having helped negotiate an access agreement and then an entirely different forum negotiating the appeal.

The final point that I would make is that, whilst the Environment, Resources and Development Court is often regarded as a specialist court that only concerns itself with the environment, I would just remind members that this court also has jurisdiction over the Natural Resources Management Act, the Irrigation Act, the Native Title Act, the Mining Act, the Opal Mining Act, the Petroleum and Geothermal Energy Act, the Upper South East Dryland Salinity and Flood Management Act—in fact a range of pieces of legislation that deal with agreements and licences in relation to land, which is effectively what this bill before us now does. I think it is a sensible amendment that brings all dispute resolution within the umbrella of the ERD Court.

The Hon. I.K. HUNTER: I think I may have advised the chamber in my second reading contribution or the closing summary contribution that the government was somewhat ambivalent about this amendment from the Hon. Mr Parnell, but I think I indicated that we would be supporting it. I must say that we have been persuaded by the Hon. Mr Parnell's impassioned arguments over jurisdictional challenges, and for that reason we will be supporting his amendment.

The Hon. J.M.A. LENSINK: The Liberal Party has not been persuaded by the Hon. Mr Parnell. We did support a similar move last year in relation to native vegetation—which is one that he did not have on his list—

The Hon. M.C. Parnell: No, it's on my list; I didn't read it out.

The Hon. J.M.A. LENSINK: You didn't read it out—to change the jurisdiction there, but we believe that pastoral lands are not necessarily just an environmental issue, even if they do come under the list of acts that are committed to the minister for the environment. There are a lot of broader issues, and notwithstanding whether it is a speedier jurisdiction than the District Court, we are unpersuaded. We do have an amendment to the honourable member's amendment in case it is successful, and we will be calling for a division on this particular amendment.

The Hon. M.C. PARNELL: Just to assist the chamber, the honourable member's amendment to my amendment is not of any particular consequence. It does tighten it up a little bit, and I am happy to accept her amendment to my amendment. I am disappointed that the Liberal Party is not persuaded that having a single judicial body to administer disputes is the way to go, because I think it is. I just want to put on the record that we are happy with the honourable member's amendment to my amendment and we look forward to hearing the contribution of others.

The Hon. J.M.A. LENSINK: I move:

Amendment No 1 [Lensink–2]—

Amendment to Amendment No 1 [Parnell–1]—

Clause 10, inserted section 49L(4)(a)—After 'must' insert:

, within 30 days after being required to do so by the appellant,

This amendment imposes a limit in terms of the time that the minister has to provide a response to an appellant.

Amendment to amendment carried.

The committee divided on the amendment as amended:

Ayes 9

Noes 6

Majority 3

Amendment as amended thus carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (16:35): I move:

That this bill be now read a third time.

In doing so, can I congratulate all members for how we have progressed this matter. I think we can fairly say that every player in the chamber has won a prize today and we have come up with a better bill for the sake of trying, so thank you very much everybody. I look forward to it passing.

Bill read a third time and passed.