Reverend the Hon. Dr GORDON MOYES [3.37 p.m.]: I thank previous speakers for their lucid presentation of this case. On behalf of Family First I speak on the Mining and Petroleum Legislation Amendment (Land Access) Bill, the object of which is to amend the Mining Act 1992 and the Petroleum (Onshore) Act 1991. In particular, this bill amends the definition of “landholder” so that an exploration company only needs to make an access arrangement with a person who has exclusive possession of a property or a right to exclusive possession. It removes the requirement for exploration companies to negotiate access arrangements with secondary landholders such as easement holders or mortgagees. It retains the right for secondary landholders to claim compensation if their interests are adversely affected during exploration, and it provides an exploration company with the flexibility to make more than one access arrangement when there is more than one landholder for a property.
I want to discuss two issues about the bill at this stage. The first issue is the introduction of this bill, which shows the New South Wales Government’s complete disregard for a decision of the New South Wales Supreme Court. The amendments to the mining and petroleum Acts will validate all existing property access agreements and force into the Land and Environment Court the Caroona agreement set aside by the Supreme Court. Finally, I will discuss the consequences of the legislation in securing Australia’s food supply. The legislation before the House today shows that the New South Wales Government has no regard for the law or the New South Wales Supreme Court.
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Justice Schmidt ruled that BHP had breached the Mining Act 1992 by failing to notify all interested landholders, including mortgagees, and that the New South Wales Wardens Court, since abolished, had made serious legal errors in finding in BHP’s favour. In addition and importantly, Justice Schmidt found that BHP had not adequately detailed how it intended to protect the environment during its exploration operations, validating a key community concern. The Hon. Robert Brown spoke about the significance of that community concern and I do not need to repeat it.
This bill is an attempt by the Government to overcome a recent decision of the New South Wales Supreme Court. In common law countries such as Australia, the doctrine of the separation of powers is an indication of a working government and democracy. Evidently it is non-existent in this State. In the current case before the House, the Government perceives the Supreme Court decision as an encroachment and erosion of its power. The Deputy Leader of the Opposition outlined the concerns of the Law Review Committee and the New South Wales Bar Association about this very matter. In a High Court comment a former Chief Justice of the High Court said:
It is self-evident that the exercise of judicial review will, from time to time, frustrate ambition, curtail power, invalidate legislation, and fetter administrative action The High Court from time to time disappoints the ambitions of legislators and Governments. This is part of our system of checks and balances. People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced.
How true that is in this case. The Supreme Court decision highlights that judicial decisions can hamper the execution of important government policies. Their effect can be to work against ” administrative efficiency”, Justice Schmidt said. For the public service in particular, decisions made by the judiciary can mean that plans are thwarted, policy is impossible to implement, and there is an increased expense in carrying out administrative procedures. Private property rights, although subject to compulsory acquisition by statute, have long been hedged about by the common law with protections. These protections are not absolute but take the form of interpretative approaches where statutes are said to affect such rights. The common law caution to the Legislature in exercising its power over private property is reflected in what has been called a presumption, in the interpretation of statutes, against an intention to interfere with vested property rights. In Clissold v Perry, a land resumption case, Chief Justice Griffith said:
In considering this matter, it is necessary to bear in mind that it is a general rule to be followed in the construction of statutes such as that with which we are now dealing, that they are not to be construed as interfering with vested interests unless that intention is manifest.
The High Court decision considered the infringement on individual property rights. The High Court judgment considered the following approach:
In its application to property rights, this long-standing interpretive principle is consistent with international developments in the recognition of human rights since World War II. Although not specifically protected by the International Covenant on Economic, Social and Cultural Rights, the right to property was recognised in the Universal Declaration of Human Rights and in various other international instruments.
Australia is a signatory to that Universal Declaration of Human Rights. Let me consider for a moment the issue of property rights. Firstly, limiting the definition of “landholder” to a person who has exclusive possession or a right to exclusive possession of a property, and removing the requirement for exploration companies to negotiate access arrangements with easement holders or mortgagees, seeks to completely reverse the recent New South Wales Supreme Court decision in Brown & Anor v Coal Mines Australia Pty Ltd, in which the landholder’s rights were upheld by Justice Schmidt and BHP Billiton’s license to explore for coal on the landholder’s property were deemed invalid due to a lack of consultation with all landholders.
The Supreme Court decision provides greater certainty of rights of farmers whose land is covered by an exploration agreement. The Supreme Court judgment was concluded after careful consideration of the facts and evidence presented to the court. This bill raises question as to whether leaseholders or even squatters may be deemed to potentially have exclusive possession or a right to exclusive possession over land, so would the proposed amendments to the bill seek to allow those parties to have the right to enter into access agreements with mining companies? Secondly, another interpretation of the bill may be that it nullifies a recent decision by the Land and Environment Court, in Rosane Pty Ltd v T & P Clarke, that exploration licence conditions should and can be attached to access agreements. As a result of those two aforementioned judgments the rights of landholders with regard to mining exploration have significantly improved. So a detailed review of the proposed bill needs to be undertaken with an area of express interest being the proposed amendments to section 141.
Thirdly, proposed amendments to section 158 also pose some concerns. Presently access agreements terminate when a bound landholder either ceases to be a landholder, or dies. Significantly the bill seeks to provide that access agreements with two or more parties do not terminate if one party ceases to be a landholder. Rather, in the circumstance in which the land under an access agreement changes landholders, the agreement will continue to operate until it is replaced by a new agreement, whether by agreement or by the determination of an arbitrator or the Land and Environment Court. This amendment could result in significant impacts to property values should the landholder seek to sell his or her property.
Finally, I want to talk about the significance of the Liverpool Plains area and our national food security. Agriculture is a vital contributor to the New South Wales economy with New South Wales being Australia’s most productive agricultural State. Agriculture contributes $10.2 billion to the New South Wales economy and employs more than 122,000 people. This represents 26 per cent of the total value of Australian agricultural production. As well, agriculture is the biggest land user in New South Wales with an estimated 63.6 million hectares or 79 per cent of the landmass of New South Wales being used for agricultural activity.
The Liverpool Plains is critical for the nation’s food security and contributes $332 million to the gross domestic product annually. The Liverpool Plains is part of the Namoi catchment that feeds into the Murray Darling Basin. According to National Dryland Salinity Program, it is the only catchment where cropping is the major land use, and is by far the most fertile and productive. I have spoken about the Liverpool Plains in a previous speech and on that occasion went into some detail about the significance of what is regarded as the most productive form of agricultural land in Australia. The Liverpool Plains is well managed with high-output aquifers, it has reliable summer and winter rainfall, and has high water holding capacity with exceptionally fertile volcanic soils. I will not repeat what I have said in other speeches, but let it be said that the Liverpool Plains is outstanding agricultural country.
The National Pollutant Inventory confirms that the Liverpool Plains does not produce food in an environment contaminated by any industry waste. The mining industry liberates tonnes of toxic metals, fine silica dusts or carcinogenic petroleum hydrocarbons. It also leaves a legacy of acid mine drainage, poisoned rivers and creeks, highly saline evaporation ponds, and unpredictable methane scalds. The ability to produce quality food is directly related to the environment in which that food grows. On the Liverpool Plains, local farmers produce food from clean air, clean water and nutrient-dense soil.
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The future of every organic farmer in this part of Australia, which brings added value to their crops and assures overseas sales for the benefit of Australia, is placed in total jeopardy if mining access continues. As discussed before, the Liverpool Plains yield 40 per cent of the national average. The 16-year average produced by the New South Wales Department of Primary Industries shows consistent, drought-proof winter and summer annual crop production to be over 180,000 tonnes of wheat, over 200,000 tonnes of sorghum, over 5,000 tonnes of oats, over 2,000 tonnes of soybeans, over 60,000 tonnes of barley, over 29,000 tonnes of corn, over 19,000 tonnes of sunflowers, and over 1.2 million tonnes of cotton.
According to the Australian Bureau of Agricultural and Resource Economics, the food bowl of Liverpool Plains brings to our table each year the following items: 365 million loaves of bread, 62.5 million packets of pasta, 144 million bottles of beer, 5.4 million packs of muesli, 8 million litres of sunflower oil, 58 million boxes of cornflakes, 276 million pairs of jeans, over 200 tonnes of sorghum for cattle and chickens, $110 million worth of beef production and massive production of chickpeas, soybeans, mung beans, canola, olives, turkeys, pigs, lamb and wool.
And lentils and pulses, if you like. Lest people think that mining exploration does not interfere with this production, I will an email sent to all members of Parliament by Mark Stewart. He writes:
Dear Members,
I believe that this bill is before you this week, I write to you so that you may be aware of the disruption to landholders caused by miners and the environmental damage miners have caused in this area. I am sure that other areas have suffered even more.
Basically I think that entry for exploration should be a matter between the landholder and the explorer. Our experience with our local miner, Hillgrove mine (Straits) has been dismal.
Their first contact with us was by letter which had a return address upon it. When we replied to them the letter was returned ‘not known at this address’. We then wrote to their office in W.A. with what we considered to be our requirements for access – no reply from them. We were then in touch with their local people and virtually denied them access (a moot point, as they have the NSW govt. behind them in this regard).
The exploration of neighbouring properties was quite disruptive to us, drilling rigs about 600m from us for months, very noisy and dusty. My wife was suffering a Menieres attack at this time and on several days we had to vacate our home due to the noise. The plumes of dust were going several hundreds of metres up and depositing all around including on our roof and drinking water catchment. This dust was admitted by Straits to contain heavy metals such as lead, arsenic etc.
During this exploration they cut a neighbour’s fence for drilling rig access and did not fix it properly, as a result Mr Coventry’s cattle escaped onto the Grafton Rd resulting in the police being called. The explorers also entered crown land, Clark’s Gully travelling stock reserve where they carried out maintenance on their rig with a resulting oil spill. The above were photographed and sent to the relevant dept. (at the time Primary Industries, mining division). To the best of my knowledge there was not any follow up by the Dept.
Hillgrove village was also subject to visual, aural and smell pollution during their mining operations.
This experience of a so called responsible miner has firmed our opinion.
In closing he writes:
Our experience of the previous operator of Hillgrove mine was similar. An open cut mine approximately 600m from our property was very troublesome, once again noise, dust and explosions which shook our house severely…The site has been left as a hole which is visible on the southern side of the Grafton Rd (Waterfall Way) about 22 kilometres from Armadale, just near the Old Hillgrove Road. The promises made by the miner about mediation etc were not carried out and nobody seems to know what happened to the supposed bond put up by the miner. The conditions of the council approval were also not complied with and the council were not interested in policing them, instead when the mine was for sale they donated some of the ratepayers funds to the seller to help him sell.
Another fault with the exploration and any subsequent mining is that the landholder may be compensated to some extent but the neighbours receive no compensation or consideration under the mining rules.
I feel that some of the above problems could be minimised if the landholder had more say about what happens on his land and more say in the granting of exploration rights and any subsequent mining activity, because I believe that the landholder is the person most interested in his local environment being looked after.
There is no question about the authenticity or the accuracy of that statement and I thank Mr Stewart for it. In conclusion, whatever uncertainties we face with the world economy, protecting prime agricultural land will ensure that Australia will always be able to feed our population with high-quality, safe, nutritious and affordable food. Liverpool Plains must remain a pre-eminent food exporter contributing to Australia’s gross domestic product, export growth and international leverage. Australia now has less than 6 per cent of arable land. We must protect the prime areas, in particular the best of all, the Liverpool Plains. It is Australia’s vital source of food security. According to the Australian Farm Institute, the productive capacity of Australia needs to be sustained if each farmer is to continue to feed 150 Australians and 650 people overseas.
Food security is vital for the future of Australians and farmers’ rights are vital for all Australians. Farmers are sustainable managers of their land and the environment and they play a vital role in driving regional and national economies. If governments take away their fundamental right to manage their land and cultivate a productive sustainable return, then governments should compensate them significantly for that loss. It is fundamentally for this critical reason that I support the farmers of this nation and strongly oppose this legislation.
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