Views:

Ref: MG/AF/GG24067

19 September 2024

Department of Resources

1 William Street

BRISBANE QLD 4000

By Email: ResourcesPolicy@resources.qld.gov.au

 

Dear Sir/Madam

Re: Coal Seam Gas (CSG)-Induced Subsidence Management Framework

AgForce is a peak organisation representing Queensland’s cane, cattle, grain and sheep, wool & goat producers. The cane, beef, broadacre cropping and sheep, wool & goat industries in Queensland generated around $10.4 billion in on-farm value of production in 2021-22. AgForce’s purpose is to be ‘The Leading Voice for Queensland Producers’ and strives to ensure the long-term growth, viability, competitiveness and profitability of these industries. Over 6,000 farmers, individuals and businesses provide support to AgForce through membership. Our members own and manage around 55 million hectares, or a third of the state’s land area. Queensland producers provide high-quality food and fibre to
Australian and overseas consumers, contribute significantly to the social fabric of regional, rural and remote communities, as well as deliver stewardship of the state’s natural environment.

Thank you for the opportunity to provide comment on CSG-induced subsidence management framework. 
 

AgForce has a strong policy position on representing members’ interests in the protection of land use and is supportive of efforts by all authorities, at federal, state and local levels, that enable the effective coexistence of agriculture with other forms of land use. Please see Appendix 1 where the Land Use Protection Principles of AgForce members, as endorsed by the AgForce Queensland Farmers’ Limited Board, are presented as an overall expectation of what broadacre agricultural industry commits to when seeking coexistence with other sectors.

Chapter 5A – CSG-Induced Subsidence Management

AgForce supports the need for a CSG-Induced Subsidence Management Framework however, considers the Chapter proposed does not deliver the intention of the Bill and does not protect AgForce members’ interests. Also, the framework should be extended to include subsidence induced by Geothermal Energy resource activities given the recent
approval of an exploration permit EPG2031 which is in a region zoned priority agricultural area under the Regional Planning Interests Act 2014.

AgForce is of the view that some of the provisions conflict with the goal, core objectives and guiding principles of the National Strategy of Ecologically Sustainable Development1 as endorsed by the Queensland Government. Further, they are a major reduction of AgForce members’ rights and are not compatible with AgForce Land Use Protection
Principles. It is the view of AgForce that the Chapter must be significantly revised.

Make Good Water Bore provisions reduce the onus of proof for owners of groundwater bores which will be lost due to CSG mining. If a groundwater bore is listed as impacted, the tenure holder must automatically make good that groundwater. Similarly, the subsidence management framework should require CSG miners to automatically make good subsidence impacts.

AgForce is greatly concerned that consultation on the Chapter is very limited because of its reliance on many regulations which have not yet been written.

AgForce supports the need for Division 4A of Chapter 3 however, does not support the Division as proposed.

  • Division 4A allows the relevant holder to cross land that is reasonably necessary to cross, to access private land that is outside of the authorised area. AgForce supports undertaking ‘subsidence activities’ outside of the authorised area however, does not support that the crossing of the private land is not considered a subsidence activity under section 53B and therefore no entry notice is required.
  • AgForce submits that section 53D(2) erroneously omits the power of the Chief Executive to impose conditions upon entry. Furthermore, under section 47 of the Mineral and Energy Resources (Common Provisions) Act 2014 (MERCP Act), an owner or occupier of the private land to be crossed (‘access land’) to access the authority area is entitled to an access agreement. Section 48(2) confers the right of the owner or occupier to impose reasonable and relevant conditions on the authority holder. However, section 53D(2) does not impose any consultation with the owner or occupier of the ‘access land’ regarding any conditions of entry upon the authority holder. AgForce sees this as an omission in section 53D(2).                 
  • AgForce views that the principles of ‘preliminary’ activities and ‘advanced activities’ under sections 15B and 15A apply to private land whether it be ‘access land’ or authority area land.
  • Concerningly, there is no consideration given to the legal liabilities imposed upon landholders by other legislation and landholder reporting obligations. For example,
    • Agricultural land is considered a workplace under Worksafe Queensland, thus imposing liability upon landholders to ensure a safe work environment. With large machinery being operated within these areas and mustering being conducted on grazing properties, it is essential that notification of specific dates, times, durations and locations is provided to the landholder and a Land Access Code for intensively cropped land, for subsidence activities, is written.
    • Surface water storage and flow is regulated under Qld and Cth Water laws, imposing liability upon landholders.
    • Declarations which must be completed at point of sale and/or delivery to sell grain/produce and export grain/produce eg, Livestock and Grain commodity vendor declaration.

There is no limitation of liability for landholders against a claim based in tort for damages relating to a person purportedly carrying out an authorised activity within a petroleum authority area as is provided by section 563A of the Petroleum & Gas (Production & Safety) Act 2004. AgForce would submit that a similar clause limiting liability for owners or occupiers of ‘access land’ is included within the amendments.

Likewise, the liability of landholders, for actions done or not done under the proposed framework should that action or lack of action cause harm to other landholders, for example, in relation to water flow and/or drainage, appears not to have been considered.

  • Concerningly, Insurance Australia Group now limits farmers to ‘farm legal liability insurance’ where an agreement has been made to the extent the landholder takes on liability (eg, has gas infrastructure on their property) or gives up a right. Whilst an agreement between the authority holder and the landholder indemnifies the landholder for authorised activities, there is no such agreement in place with the landholder of the ‘access land’, leaving the ‘access land’ landholder open to liability to third parties. No guidance has been provided as to how agreements and opt-out agreements will interact with ‘farm legal liability insurance policies’ and ability of AgForce members to maintain insurance  coverage.
  • AgForce has concerns with the lack of penalty imposed by section 53E, which allows necessary damage to structure or works on the land. AgForce accepts the standard of reasonableness in law as what a reasonable person ought to have done/not have done in the circumstances, it is not a subjective test of the individual accessing the land. However, what damage is reasonable? If a contractor/employee comes across a wire gate they do not know how to open, would cutting the wire be reasonable in the circumstances? It is uncommon for people who live in town to come across these types of gates; is reasonableness assessed on the reasonable person who knows their way around a farm or a reasonable person who would not be expected to know such details? Landholders should not have to incur damage at the benefit of resource companies. AgForce would submit that a provision mandating consultation with the landholder prior to causing damage/inconvenience and a penalty provision for unreasonable damage and unnecessary inconvenience be inserted into section 53E.

AgForce has noted the insertion of a Tabling requirement for the Subsidence Impact Report under section 184CQ and that the department has said Parliamentary Privilege has no implications for any liability that may exist for the State.2

AgForce supports the need for Chapter 5A however, does not support the Chapter as proposed. AgForce has undertaken a limited review of Chapter 5A and draws your attention to the following:                   

  • In view of the degree of risk borne by landholders, the agricultural industry and community from CSG-induced subsidence and impact of CSG mining on groundwater, the Office of Groundwater Impact Assessment (OGIA) requires a Board for adequate governance, accountability, transparency and oversight. The Board should include members who are landholders and those who have relevant experience with the agricultural industry – such as hydrologists and agronomists.
  • AgForce does not agree with the omission of agricultural dams from the framework because they can be hydraulically and structurally damaged by CSG-induced subsidence. 
  • AgForce considers that seismic activity should be monitored, including the development of a ‘baseline’.
  • AgForce is concerned by relevant holders in the interim undertaking work to ‘best practice industry standards for carrying out work similar in nature to undertaking monitoring of agricultural land’, when it is unclear as to whether that means ‘in relation to agricultural land use’ and ‘agricultural dams’, or something else.
  • AgForce does not agree with the restriction on starting to produce CSG using ‘particular petroleum wells’ being able to be released by agreement with a landholder. CSG-induced subsidence extends beyond the farm boundary and where it occurs may impact neighbours and others in the area.
  • AgForce believes that landholders must be compensated for time, costs, losses and damages in all stages of the CSG-induced subsidence management framework. Landholder time is no less valuable than that of the CSG mining industry and it should not be for landholders, who are forced by law to host resource activity, to fund the cost of not only land access but for baseline data, land monitoring, farm field assessment, subsidence management plan and subsidence compensation agreements which are all activities relating to the damage being caused, not the accessing of the land.
  • CSG miners should be required to reimburse landholders for negotiation and preparation costs including relevant expert costs as the cost are incurred, rather than on making of agreement.
  • AgForce objects to the landholder being excluded from any role in the oversight of farm field assessment and to relevant holders being able to make agreement with landholders to not require audits.
  • AgForce considers that landholders should be able to access all farm field assessment documents and all correspondence between the farm field assessment auditor and the CSG miner.
  • AgForce submits that the reference to qualified person in section 184AB in relation to undertaking a farm field assessment should be to qualified people as generally several experts in their relevant field are required to complete the farm field assessment.
  • AgForce considers the subsidence management plan and subsidence compensation agreement stages to be fundamentally broken. The landholder is the principal stakeholder and primary participant in the making of a subsidence management plan and the year-in-year-out operation of that plan. Yet the landholder is unable to claim compensation for losses, costs and damages including time, until the subsidence compensation stage which is a one-off opportunity to prove and claim the entirety of all losses, past, present and into the future unless a ‘material change of circumstances’ can be proven by the landholder in Land Court.
  • It is unclear how the effective limitation of a subsidence compensation agreement to one claim at one point in time will in practice work, when CSG-induced subsidence will occur for decades, rectification in the same location may need to be repeated multiple times and different areas of the same land parcel may be damaged at different times potentially years apart.
  • The reference to qualified person in section 184AB in relation to undertaking a farm field assessment should be to qualified people as generally several experts in their relevant field are required to complete the farm field assessment.
  • AgForce recognises that overland, surface and flood flow of water are reported on in the OGIA Underground Water Impact Report for the Surat Cumulative Management Area however, this is for regional environmental purposes. AgForce considers that the Subsidence Impact Report should include an assessment of CSG-induced subsidence impact to overland, surface and flood flow of water in relation to agricultural land, and that relevant agricultural expertise should be used in that assessment.
  • The importance of agricultural expertise in relation to preparation of subsidence impact management strategies must be recognised. 
  • AgForce supports the identification of responsible holders.
  • AgForce views that the confidentiality obligations imposed on the relevant holder by section 184LJ, that information which is given must not be disclosed, are inadequate for the protection of member interests. They must be strengthened to prevent disclosure of information collected by the relevant holder while accessing private land.
  • Finally, AgForce believes that landholders who have sufficient evidence that they have suffered critical consequences, should not be denied the right to apply for a critical consequences direction whether they are entitled to a subsidence management plan or not.

AgForce thanks the Department of Resources for the opportunity to provide feedback and looks forward to continued engagement to better practices for all stakeholders involved.

If you have any questions or require further information please contact Anna Fiskbek, Policy Advisor by email fiskbeka@agforceqld.org.au or mobile: 0407 813 470.

Yours sincerely

Michael Guerin

Chief Executive Officer


1 https://documents.parliament.qld.gov.au/TableOffice/TabledPapers/2016/5516T2036.pdf

2 https://documents.parliament.qld.gov.au/com/CEJRTC-213C/MEROLAB202-95D5/Final%20Amalgamation%20-%20MEROLA%20public%20submissions_Dept%20responses.pdf page 36.

 Appendices

Appendix 1: AgForce Land use Protection Principles

As the body for agriculture, AgForce requires that alternative and potentially impacting land uses ensure:

  1. There is recognition that natural capital has an inherent value
  2. Human health and well-being must not be sacrificed
  3. A precautionary approach that avoids negative legacy effects on natural resources including air, soil, water and biodiversity
  4. There are no negative impacts on existing or future sustainable agricultural opportunities

Before: 

  • Recognize that resources are finite 
  • All projects are assessed on environmental, social and economic criteria.           
  • There is a formal mechanism for agriculture to be involved in assessment.
  •  Projects should not be assessed in isolation and cumulative impacts assessed.
  • Potential impacts need to be objectively, and accurately quantified rigorously and independently reviewed
  • Agricultural landholders to have equal representation, available resources and bargaining power

During:

  • All projects must have comprehensive monitoring and transparent reporting
  • Non-compliance will trigger cease work.
  • Enforcement is primarily the responsibility of government, but landholders must have a right to compel action.
  • Industry and Government must proactively identify and manage cumulative impacts, both individual project cumulative impacts and multiple projects cumulative impacts

After:

  • Land needs to be rehabilitated to be the pre-existing natural conditions. 
  • ​​​​​​​Financial assurance needs to be adequate for rehabilitation.

See: https://www.agforceqld.org.au/knowledgebase/article/AGF-01250/

 

Keywords: Submission, CSG, Coal, Induced, Subsidence, Management, Framework