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Farmland Access Disputes - New Mining and Resource Industry Regulations Open For Comment

The State Government has released a public draft of regulations under the Fair Trading Act, incorporating a new Mining and Resources Industry Land Access Dispute Resolution Code to facilitate the timely and efficient resolution of disputes between farmers and mining operators.

The South Australian Government has released a consultation draft of the Fair Trading (Mining and Resources Industry Land Access Dispute Resolution Code) Regulations 2018 to gauge the views of industry, and is seeking comments.

Implemented under the Fair Trading Act 1987 (SA), the Regulations introduce a mandatory alternative dispute resolution process for disputes between famers and mining operators or petroleum licensees in relation to a land access dispute. The Regulations take the form of an Industry Code.

Under the proposed Code a dispute resolution process would be commenced by the written application of either party to the Small Business Commissioner. Mediation under the Code will only follow the application if the Commissioner determines that there has been a previous reasonable attempt to resolve the dispute and that the dispute is neither frivolous nor vexatious. If the Commissioner elects to proceed with mediation, a failure to participate may see the imposition of fines.

Of note is the narrow scope of the Code in relation to the disputes it applies to, and the use of ‘farmer’ as the key defined term. Farmers are taken to be those engaged in the business of primary production, which is defined broadly to include agriculture, pasturage, horticulture, viticulture, apiculture, poultry farming, and a broad variety of other agricultural activities. In order for the Code to apply, a person should be engaged in primary production business and using the relevant land for that business.

In comparison, the Mining Act 1971 (SA) and the Petroleum and Geothermal Energy Act 2000 (SA) both provide a means of resolving disputes with all ‘owners’ of land. Owners in those regimes are the landowner, a tenement holder, lessee, and licensee of the State, a lessee, a person with control of the land under statute, a person with exclusive possession or a native title party. The Minister has the power under the Petroleum Act to attempt to mediate between the parties, and failing that disputes can be taken to the Warden’s Court. The Mining Act provides for the appropriate court to determine any objections. The dispute resolution processes under those Acts are applicable to all land access disputes, not just disputes with farmers (eg where native title claimants or other licensees object to access).

Overall, these Regulations are intended to assist land users and mining operators to resolve disputes without the significant cost associated with litigation, compelling mediation under the auspices of the Small Business Commissioner instead. Whether they are necessary when the Mining and Petroleum Acts already put in place a scheme for resolution of access disputes is a matter which could be addressed during the consultation process.

The public is able to comment on the draft regulations until 28 September 2018.

If you would like us to assist you with making comments on the proposed new Industry Code, please contact Susan Robertson or Leah Cowell.

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