Agriculture and resource production are both vital industries in NSW, and share many common beliefs and interests. The successful coexistence of these industries has enormous benefits for the state, particularly in regional areas.
While landholders in NSW own the surface land of their properties, most 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.
The purpose of land access arrangements is to ensure the orderly search for resources, while recognising the rights of landholders to conduct their activities free from unreasonable interference or disturbance.
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.
Both explorers and landholders have clear legal rights regarding access to land for resource exploration.
The Mining Act 1992 and the Petroleum (Onshore) Act 1991 provide specific landholder protections in respect of dwellings, gardens and significant improvements. The legislation also provides a statutory right to compensation for any 'compensable loss' suffered due to exploration carried out under an exploration licence or assessment lease.
The vast majority of relationships between explorers and landholders are positive. Courtesy, respect and honesty go far in building relationships between explorers and landholders.
All access arrangements should be based on the understanding that explorers are 'visitors' on private land, and an appreciation by landholders of the needs and rights of explorers.
I have an exploration licence. When can I access land for exploration?
Access to land for exploration can only occur once access arrangements have been negotiated with the respective landholders. Until that time, a prospecting operator cannot carry out any on ground exploration. Even with an access arrangement in place, certain areas may not be accessed including areas determined to be significant improvements. Read more about significant improvements.
No exploration activities can take place on land claimable under the provisions of the Commonwealth's Native Title Act 1993, before the right to negotiate process has been completed.
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 undertaken 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 policy and legislation must I follow when accessing land?
Resource companies must at all times follow the requirements set out in relevant legislation, including the Mining Act 1992 and the Petroleum (Onshore) Act 1991, depending on the resource they are developing. Access to land for exploration must also be in line with requirements set out under:
- relevant regulations including the Mining Regulation 2016 and the Petroleum (Onshore) Regulation 2016;
- any relevant codes, including the Exploration Code of Practice: Petroleum Land Access for petroleum prospecting operators;
- title conditions; and
- access arrangements agreed in writing with the landholder(s).
I am unable to finalise an access arrangement with the landholder of the land under my title. What do I do?
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.
What costs am I required to cover as part of negotiating access to land?
The costs involved in negotiating access to land for exploration include:
- the reasonable costs, to a cap, for landholder participation in agreeing a land access arrangement; and
- the costs of then arbitrator, if a member of the Minister’s panel of arbitrators is appointed to a matter.
Read more about costs payable by the explorer.
My exploration program has changed and I need to vary my access arrangement. How do I go about this?
The first step is to check the agreed access arrangement to ascertain whether it specifies a process for advising of or negotiating variations. If so, this process must be followed.
In all other instances, NSW law states that an access arrangement may be varied:
- by agreement with the landholder(s) concerned;
- by the arbitrator with the consent of all parties to the arrangement (in this case, parties must bear their own costs at mediation and arbitration); or
- by application to the Land and Environment Court if the arrangement was determined by the Court or an arbitrator.
How and when do I need to carry out rehabilitation?
Rehabilitation should be undertaken progressively and as soon as possible, in line with the requirements of:
- title conditions;
- activity approval conditions;
- relevant codes of practice (including the Exploration Code of Practice: Rehabilitation);
- any rehabilitation management plan; and
- the agreed land access arrangement.
Where can I go for more information?
More information on land access and the arbitration framework in NSW can be found through the following links:
- Land access template for mineral exploration
- Arbitration procedure
- Significant improvements
- (Petroleum exploration only) Petroleum land access code
- Costs payable by explorers under the arbitration framework
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.