Under what circumstances may a resources company access my land for exploration?
While landholders in NSW own the surface land of their properties, resources that exist below the earth's surface belong to the state of NSW. The production of these resources contributes royalties, economic benefits and energy security for the people of NSW.
Access to land for exploration can only occur if the explorer obtains the necessary approvals required under NSW legislation. There are a number of steps involved. The company must be successful in applying for an exploration title, and most importantly there must be an access arrangement in place that was agreed with the landholder. This access arrangement sets out the terms and conditions of the exploration company’s access to land, and no work can begin without this arrangement in place.
Thousands of access arrangements are successfully negotiated between titleholders and landholders for their mutual benefit. Very few progress to mediation, arbitration and to the courts.
Access arrangements differ slightly for mineral and petroleum titles, recognising the different nature of these resources. For mineral titles, access arrangements only apply to exploration, whereas for petroleum they apply to both exploration and production.
The purpose of exploration is to identify the quantity and quality of resources and to determine the viability of proceeding to production. There is a rigorous approvals process in place for exploration activities, and companies have strict requirements imposed on them to ensure land is progressively rehabilitated. Further information is available at the Environmental assessment page.
Exploration does not guarantee that production will occur. If a resources company decides to progress to production, then there are separate and independent approvals processes, most notably planning and environmental approvals.
Only a very small percentage of land that is subject to exploration licences ever proceed to production.
Read more about exploration.
How do I find information on any exploration titles in my area?
Information on areas under exploration licences or applications for new exploration licences can be obtained from the department's website through the Common Ground web portal or through Minview. These websites contain extensive information on exploration and production in NSW.
For applications for new titles, the applicant must publish notification in both a newspaper circulating state-wide and in a newspaper circulating in the locality of the proposed exploration area. This requirement also applies for mining and petroleum production. Public submissions are invited and considered before an exploration title may be granted.
If they have a title, can a resources company automatically access my land?
No. At exploration, access to land is not permitted until an access arrangement has been finalised. An access arrangement is also required for petroleum production.
Even with a land access arrangement, a resources company cannot access areas known as significant improvements, except with written approval from the landholder.
At production, a company can’t begin work until compensation has been agreed between the parties or assessed by the Land and Environment Court.
What is an access arrangement?
An access arrangement is a written agreement between a titleholder and a landholder. It specifies the terms and conditions under which a titleholder may access land for exploration. No activity may be taken by the resources company without an access arrangement in place. These arrangements may be agreed between the titleholder and landholder, or determined by an arbitrator.
Access arrangements may include provisions relating to:
- the times the titleholder is allowed access to the land;
- which parts of the land the titleholder may work on;
- the kinds of exploration activities which may be undertaken on the land;
- the compensation payable by the titleholder (this can be monetary or in-kind);
- the manner of varying the arrangement and resolving any disputes relating to the arrangement;
- notification requirements; and
- any other conditions and requirements agreed to by the landholder and the titleholder.
Access to land may be denied if a titleholder contravenes the agreed access arrangement.
What is the duration of an access arrangement?
Access arrangements are private agreements between a titleholder and landholder. The duration of those agreements will vary depending on what is agreed by the parties according to the circumstances of each individual case.
Generally however, access arrangements are made for the duration of the exploration work planned. The arrangement may be varied or terminated:
- in accordance with the terms of the access arrangement;
- with the agreement of all parties to the arrangement;
- by an arbitrator, or
- on application by any of the parties, by order of the Land and Environment Court if the arrangement was determined by a court or an arbitrator.
Where there has been a change in the landholder(s), the access arrangement may be varied, or the existing access arrangement may continue in force. Refer to section 158 of the Mining Act 1992 and section 69U of the Petroleum (Onshore) Act 1991 for further information.
What happens to my access arrangement if the exploration licence over my land is renewed?
The access arrangement may continue in force, or may be varied, depending on the agreed terms and conditions of the original access arrangement.
What happens if I’m having trouble finalising an access agreement with a titleholder?
Thousands of access arrangements are successfully negotiated between titleholders and landholders for their mutual benefit. Very few progress to mediation, arbitration and to the courts. However, in the instance parties can’t reach agreement through private negotiations, the NSW legislative framework sets out a clear pathway to help landholders and titleholders agree on the terms and conditions for access to land.
Under NSW law, negotiation between a titleholder and a landholder is the first step in making a land access arrangement. Mediation is required if parties are unable to reach an agreement. If mediations are unsuccessful, parties proceed to arbitration where an arbitrator will make a determination. Mediation and arbitration are less formal and less costly means of reaching an agreement.
Arbitrators may be privately appointed if agreed by both parties, or may otherwise be appointed by the Secretary of the Department of Industry, Skills and Regional Development from the Minister’s panel of arbitrators. Determinations may be appealed in the Land and Environment Court.
Landholders and titleholders are required under legislation to act in good faith throughout this process. The Land Access Arbitration Procedure provides more information on mediation and arbitration. Read more about the NSW land access arbitration framework.
If there is an exploration licence over my land can I still carry on my regular business?
Yes. However, if there is an access arrangement in place, both landholders and titleholders will need to act in accordance with that agreement’s terms and conditions. This includes any notification requirements.
What does an exploration licence entitle the holder to do?
An exploration licence gives the titleholder the exclusive right to explore for the mineral or resource specified in the licence.
It does not entitle the holder to enter any of the lands in the area covered by the licence without a prior access arrangement with the landholder.
What rights do I have as a landholder?
The normal rights associated with private ownership of property are protected under NSW legislation. Landholders who host exploration on their land can also expect the following rights and protections:
- to have an access arrangement setting out the terms and conditions for an explorer’s access to land before they can begin work;
- access to cost effective dispute resolution if an access agreement can’t be reached through initial negotiations;
- recourse if the terms of the access arrangement are not met by the explorer;
- general immunity against actions arising as a consequence of titleholder actions on their land;
- compensation (this can be monetary or in-kind);
- their land to be fully rehabilitated.
Read more about land access arrangements.
What information can I use to help me negotiate compensation?
The NSW Government commissioned the Independent Pricing and Regulatory Tribunal (IPART) to develop independent advice on benchmark compensation rates for gas exploration and production. IPART published its final report in December 2015. The report and IPART’s compensation model is available online through IPART’s website. These tools can help landholders to calculate appropriate compensation levels, given their particular circumstances.
When can a resources company commence work?
Only once the following requirements have been met may a company begin work:
- When it has been successful in applying for an exploration or production title.
- When an access arrangement has been agreed between the landholder and the titleholder (required for all activities except mining for minerals).
- When compensation has been agreed.
- When necessary exploration approvals have been issued (activity approvals).
- For mining and petroleum production, when a development consent has been granted and other licences including for water and environment protection have been issued.
What exploration methods are generally used? What can I expect occurring on my land?
An exploration program involves conducting research before concentrating on very specific areas of interest.
Initial work may involve a visit by a geologist or technical officer to walk the area and undertake geological mapping of rock outcrops. Small samples may be gathered from streams, rocks or soil for chemical analysis.
If an area of interest is identified during this initial phase, further testing may occur.
This may involve additional sampling for analysis and geophysical exploration (the collection of information on subsurface geology by using electronic instruments).
Most of these techniques do not involve significant disturbance of the ground.
If resources are indicated, the next phase of exploration may involve drilling activities usually using truck mounted drill rigs.
There is generally only a minimal area of disturbance to allow for the preparation of a safe drill site.
All disturbed areas must be fully rehabilitated to strict environmental standards. Read more about exploration licenses and regulation.
Can I negotiate a land access arrangement if I’m a tenant?
Access arrangements are required to be made in writing between the holder of the title and each landholder of that area of land.
If you are identified in a register or record kept by the Registrar-General as a person that is a lessee of the land entitled to exclusive right of occupation of the land, you may be in the position of negotiating an access arrangement with an explorer.
The definition of ‘landholder’ includes a number of categories including owner of an estate in fee simple or a native title holder of the land.
It may be prudent to seek legal advice if you have questions about whether you fall under the definition of ‘landholder’ under the Mining Act 1992 or Petroleum (Onshore) Act 1991.
Am I eligible for compensation if I don’t own the land, but live on it?
Access arrangements can make provisions for compensation to be paid to the landholder as a consequence of exploration activities. Your eligibility for compensation outlined in a land access arrangement is contingent on whether you fall under the definition of ‘landholder’ and have negotiated the access arrangement.
The Mining Act also defines certain ‘secondary landholders’ that are identified in any register or record kept by the Registrar-General as a person having an interest in the land.
Secondary landholders may be eligible for compensation in certain specific situations outlined in the Mining Act. Examples of these situations under the Mining Act 1992 include compensable loss arising from exploration, or damage caused by an authorised person entering the secondary landholder’s land in relation to rehabilitation of a derelict mine site.
It may be prudent to seek legal advice if you have questions about whether you fall under the definition of ‘secondary landholder’ under the Mining Act 1992.
The information provided above is general information only. You should seek assistance from a legal officer if you require more specific advice on matters relating to the Mining Act 1992 or the Petroleum (Onshore) Act 1991.