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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-11-16 Daily Xml
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Bills

Mining (Land Access Inquiry Recommendations) Amendment Bill

Introduction and First Reading

Mr ELLIS (Narungga) (10:31): Obtained leave and introduced a bill for an act to amend the Mining Act 1971. Read a first time.

Second Reading

Mr ELLIS (Narungga) (10:32): I move:

That this bill be now read a second time.

It is a pleasure to rise today to introduce this bill in what is the latest iteration in a long-running effort to achieve a better balance between the interests of mining and farming in this great state. The Mining (Land Access Inquiry Recommendations) Amendment Bill is an attempt by me to legislate the recommendations from the select committee formed in the previous parliament that was multipartisan and delivered a helpful report on how we might better improve the system that we have currently in operation.

Mr Speaker, as you would well know, it is no exaggeration to say that, upon my being elected for the first time in 2018, this issue was one of the biggest facing our electorate in Narungga. It came up quite often in my time as a candidate and I recall vividly doing a day's driving around the electorate through the middle of the peninsula calling into farms and knocking on farm doors in order to discuss this very issue—mining on agricultural land.

Of course, this was on the back of attempted reform to the mining bill by the former Labor government, which was reform met with significant backlash in Narungga as not going far enough to protect the interests of landowners. I recall on the back of that attempted reform lobbying the then Liberal opposition at the time, the party I was running as a candidate for, and I recall a promise to conduct more consultation prior to any further action being taken should they be lucky enough to form government.

Then of course, Mr Speaker, as again you would be well aware, I recall a remarkably similar bill being reintroduced with negligible further consultation and action resumed almost immediately. That, I suppose, was a significant moment for me in my term as a parliamentarian and I found myself unable to stomach breaking a promise that I had made in the course of many interactions throughout the campaign with our farming community.

The decision to reintroduce that bill, despite protestations, triggered a significant action in trying to find a compromise position—something that would improve the bill in line with the constituencies that we represent. Alas, none was forthcoming, and ultimately the bill was progressed, which resulted in four Liberal MPs crossing the floor in the lower house in support of greater action on behalf of landowners. Unfortunately, due to the aforementioned uncanny similarity with the Labor bill, we were unable to achieve any results with a convincing majority supporting it.

But more than just the promise that I made on the farm doorstep were the horrifying stories that we had heard about how mineral exploration companies conducted themselves in the course of their interaction with the farming community. That is not to say, of course, that all exploration companies conduct themselves poorly but that there are enough instances of poor conduct to keep the issue afloat.

There is no better example of this than the ordeal that the Harrop family from Paskeville went through, which was shared with the previous parliament through the select committee hearing at Ardrossan that I mentioned already. After being forced by the court to allow an exploration company onto their land, they pinned their hopes on the terms and conditions imposed upon that company to ensure that they caused the least possible disruption. Unfortunately, that is not how the situation played out. The company in question dug more holes than they were allowed to, dug those holes deeper than they were allowed to, and so on.

What do a family like the Harrops do when they have this situation imposed upon them? They sought mediation in accordance with the current practice. After a number of failed attempts to try to get the exploration company to the table, they finally managed to get both parties there and the exploration company showed up and declared they would not undertake the rehabilitation.

Furthermore, the company then lodged a civil action against the Harrops, an extraordinary step. They alleged that the Harrops had delayed drilling, despite their own logbook showing that the ground was more rocky than anticipated, despite their own logbook showing that their machines kept breaking down and despite their own logbook showing that their own company generators failed on a number of occasions.

It was a clear and obvious step to impose financial pressure on the Harrops to prevent them from contesting the remediation in the court system. That was made even more obvious by the fact that the Harrops' neighbour, who was part of the original exploration proposal but who had taken this company's low-ball offer to cut ties earlier, was not included in the civil suit. The neighbour who was involved in the initial exploration proposal, which presumably had been delayed by both parties, was not included in the civil suit for some strange reason.

What ensued for the Harrops was a hellish trip through the court system, both to defend the civil suit and to try to secure some remediation, for multiple years and at extreme personal expense. Eventually, after quite some time, the Harrops walked away with nothing—no compensation and no remediation—and the civil case was surprisingly dropped. The department had to then come in and do the remediation themselves because the company still refused to conduct it.

Extraordinarily, not long after that the very same company, which presumably had been a real thorn in the side of the department in its role as regulator of mining over a long period and which by now had significant legal black marks next to its name, was awarded a $250,000 grant by the government. The Harrops had been trying to fight them in court, already up against it in terms of being able to afford to run multiple trials against this company, and they found that their opposition in that trial was awarded a significant grant by the government.

Imagine how it feels for a family farming business to see that happen and the government seemingly support someone who has given them so much grief. Imagine how it then felt when, in a further step, that same exploration company applied to extend the tenement over the Harrops' land on which they had breached the conditions imposed upon them by the court multiple times, and the Harrops saw that tenement extended again. It does not make any sense how a company with so many legal black marks could have so much support from the regulator of mining in our state.

That is a horrifying series of events and an example that is nearing the top end of seriousness but is by no means an isolated one. Over the course of my term as a local representative, I have heard a number of different stories about how exploration companies in particular flout the rules with absolutely no fear of retribution from the regulator.

Stories like that are why we continued to pursue action. When the composition of the parliament changed, the then member for Frome established a select committee looking specifically into land access of which I was thrilled to be a part. The evidence collected over the course of that select committee was particularly insightful—I mentioned one part of it above, the hearing at Ardrossan—and it helped to formulate what I believe to be an extremely helpful report.

The bill I am presenting today is an attempt to legislate those sensible recommendations, and I am hopeful that, thanks to the multipartisan nature of the select committee and the fact that the now government basically has a working majority with the now member for Stuart's rise to the front bench, it will achieve support in this parliament and a passage through it. Indeed, the now opposition might consider it necessary to rethink how it approaches this debate after the feedback it received across a number of country seats at the last election.

In summarising the bill, it has a number of parts which I intend to mention individually. Firstly, it proposes to alter the assistance that can be provided to the landowner when they are dragged into a land access dispute against their will. Currently, the law allows for $2,500 to be paid in legal assistance. This bill would increase that to $10,000 of professional assistance. It proposes to expand it from not only legal advice but land valuation services, accounting services and agronomy services, which, especially over the course of the public consultation on this bill, were raised as costs that might be incurred in the course of defending one's family business. The crux of this issue is the extraordinary disparity between the spending power of a family business and, quite often at least, a large mining company conducting exploration.

Secondly, and perhaps most importantly, is the establishment of a mining land commissioner, which would separate the functions of DEM and allow the regulation of land access to be considered by someone independent of the promotion of the same industry. This was a grievance that was heard over and over again throughout the course of the select committee hearings, that when land access agreements were disregarded the farming community felt as though they had no-one to call.

They were told to call the Department for Energy and Mining, the same authority that approved the land access agreement in the first place and the same department that actively encourages mining operations in this state. They had to then hope that that department would enforce the agreement. Well, if the evidence heard by the select committee in this was accurate and representative of the entire industry, they rarely did.

Even if we accept that the department did enter into the role of regulator in good faith and that for some unknown reason all the breaches that were demonstrated to the select committee were not worthy of enforcement, then there is, at the very least, a perception of bias on behalf of the farming sector. At the very least, there is a perception from the farming community that, because of the department's other functions, their complaints are falling on deaf ears.

This is an easy problem to solve, and it is one that has been solved in a number of other industries. We need to establish an independent authority to police land access and to enforce land access agreements. The commissioner would have the power to receive and investigate complaints, to assist landowners in their dealings with explorers, to direct rehabilitation of land and other similar functions. Indeed, the example I have chosen to make the case are the Harrops, who gave evidence to the select committee as follows:

I must say, in all the dealings we had with everything, the biggest problem we had was that there was no umpire. There was no-one that we could ring. We couldn't ring the police and we couldn't ring DEM—and we had a pretty good rapport with DEM [they acknowledge]—because they were all saying, 'You are under the court order's rules.'

There was no-one we could contact to try to get things done right. There was just no-one. That was a problem we had. Probably a problem I can see with the whole system is we have to have an umpire who is independent, who is reading the rules and just going by the rules.

That's all we wanted.

A third feature of this bill will be a compulsory code of conduct for explorers to abide by. I am particularly hopeful of this part achieving widespread support because I note that the department is currently working on a code of its own. In that, I note SACOME's submission to that process in which they express their opposition to mandating such a code. I have to say at this juncture that SACOME have excellent representation, and I would like to thank Rebecca Knol for entering into the consultation that I have conducted in good faith. Despite the fact that it must have been incredibly frustrating for her, she has been incredibly thoughtful and persuasive in entering into the consultations, so thank you kindly for that.

I have to say, though, I disagree with their submission on this front. A code of conduct that is optional would have everyone who intends to abide by it signing up, and those who choose not to abide by it are the very ones that we are trying to bring into line with this mandating of the code. In my view, there is no point in having a code of conduct where those who do not intend to abide by the code itself do not face any repercussions from breaching it. I hope we can agree that a code of conduct to drag rogue operators into line is necessary and it would be worthless if those rogue operators were not forced to sign up.

Another feature which has made it into the bill, after my round of community consultation, is an aquifer interference policy, Mr Speaker, one I know that you are particularly keen on. After putting this bill out for community consultation, the strong theme that came back from the communities in the Adelaide Hills was that more needed to be done in the approval process to ensure that the safety and sanctity of aquifers were taken into account. As a result of that feedback and your own persuasive lobbying, Mr Speaker, we have included that policy in here, using the New South Wales model as a precedent, and this is our best effort at imitating that law.

It should also be noted that one part of the select committee report has not necessarily made it into the final bill. After many discussions with parliamentary counsel I have decided to move forward without recommendation No. 2, which was to undertake comprehensive mapping of existing land use and attributes with a view to standalone planning legislation. It was my view that that recommendation was indeed for standalone planning legislation and trying to lump it all into just one amendment to the mining bill would not have done it justice, but I continue to have the view that the hurdles over which a prospective mining company should jump ought to be that little bit higher on land that is in genuine use as profitable agricultural land.

As Fiona Simpson, President of the National Farmers' Federation, said to the select committee, there is no policy anywhere in Australia that gives:

…finite agricultural land any primacy, whether you are talking about urban development or whether you are talking about mining development.

I will continue to push for the government to undertake that work that has been done effectively in New South Wales and Queensland, and I also reserve the right to bring a further private member's bill back to this place with that standalone planning aspect.

A further consideration that did not necessarily make the final copy of the select committee report or my private member's bill, but weighs heavily on my conscience, is in regard to the indefinite time that a mining proposal can hang over the head of a landowner. In practice, there does not seem to be an end date for mining proposals; everything is renewed, ownerships change, proposals are modified, but in practice they never go away.

The evidence received by the select committee was that the impact that this has on the mental health of farmers is immense. Not knowing when your livelihood might be ripped away is extremely difficult to live with. In addition, it has the potential to completely ruin the value of one's property. It is very difficult to get fair market value when you have a mining proposal hanging over your head, no matter how likely it is to go ahead. I think that there should be some actual end dates on these proposals in the interests of the wellbeing of the farmer, but it has not made it into the final copy in this bill and it is another thing that I reserve the right to continue to investigate.

That is the bill. As I have already said, work on this topic has been a long-held passion of mine and it is not something I will let die away. I continue to believe that this would never happen in the city. You would never have a multigenerational cafe get a knock on its door from an alternative private enterprise saying, 'You need to vacate because our returns to the government will be more lucrative,' but it does happen in the country, where farm families get that knock on the door regularly, asking them to vacate because a mine needs to be built so that we can get access to the lucrative royalties that will flow from it.

I have introduced this bill today because I earnestly believe that it will provide improvements to the way in which land access disputes are conducted, thereby providing benefit to both the farming and mining communities. It is an issue I will continue to pursue as long as the people of Narungga bestow the distinct honour of representing them in this place upon me.

Debate adjourned on motion of Mr Odenwalder.

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