Dispute Resolution Options

Various dispute resolution options are available if negotiations with resource companies become challenging or stall completely. The GasFields Commission’s recommendation, which is supported by experts in negotiation and issue resolution, is to keep the lines of communication open.

If the parties are unable to reach an agreement on their own, the resource company can issue a notice of intent to negotiate (NIN) which allows them to proceed through the statutory negotiation processes available.

Slight differences, such as time frames and requirements, exist between the process for negotiating Conduct and Compensation Agreements (CCAs) compared to Make Good Agreements (MGAs).

However the general resolution options available for the two types of agreements are similar as outlined in the diagrams below.

Either party can seek to enter into a dispute resolution process by providing written notice to the other. Some of the dispute resolution options available in Queensland include:

• Conference – An authorised officer from the Department of Resources (Resources) facilitates discussions between the parties with the aim of reaching agreement usually within 20 business days for CCAs or 30 business days for MGAs. This is a low-cost, nonbinding option.
• Alternative Dispute Resolution (ADR)
  • Facilitative Mediation – an independent person facilitates a discussion between the parties. The mediator is impartial and does not advise or make any decisions.
  • Evaluative Mediation – a process which may include an assessment by the mediator of the strengths and weaknesses of the parties’ cases and a prediction of the likely outcome of the case.
  • Conciliation – an independent person who is an expert on the subject provides advice on the strengths and weaknesses of each side of the dispute. While the conciliator provides advice, they do not make any decisions.
  • Case Appraisal – an independent person who is an expert receives evidence from each party. The case appraiser assesses the merits of each case and makes a non-binding decision in writing.
• Arbitration – involves an independent and suitably qualified third party acting as a judge. Both parties must agree to the choice of the arbitrator.
• Land Court of Queensland hearing – These are public hearings and the decision of the Land Court is binding. Either party may submit an application to the Land Court to resolve the dispute if:
  • the conference failed to finish at the end of the 20 business day negotiation period;
  • the ADR facilitator failed to finished the ADR prior to the end of the 20 business day negotiation period;
  • only one party attended the requested conference or ADR;
  • a CCA was not reached at the end of the conference or ADR; or
  • an application can also be made to the Land Court to decide a dispute in relation to a MGA if a conference or an ADR was held and either not concluded or failed to reach agreement.

    The decision of the Land Court is binding on both parties.

The information shared during any of these ADR processes is maintained as confidential. ADRs are initiated by completing a form known as an Election Notice – click to download a copy of the ADR Election Notice.

For dispute resolution regarding potential breaches after “agreements are in place”, either party can contact the Land Access Ombudsman.

It is important to note the GasFields Commission does not ENGAGE in individual negotiations between landholders and resource companies, nor does it INVESTIGATE complaints made against individual resource companies.

Landholders wishing to lodge complaints about resource exploration or development activities should contact the Department of Resources’ Resource Community Infoline:

• Phone: 13 71 07
• Email: resources.info@resources.qld.gov.au
• Web (to lodge a complaint): https://www.resources.qld.gov.au/business/mining/resources-complaints-form.

The GasFields Commission’s Gas Guide and Roadmap have been specifically collated to deliver landholders a clear and easy to understand guide of what to expect during each stage of engagement with petroleum and gas developments, on private land, in Queensland – including detailed information around what dispute resolution options are available if negotiations with resource companies become challenging or stall completely (see Chapter 10 – Dispute Resolution). Download the Gas Guide and Roadmap for more information.

Negotiation period

• The resource company must undertake a bore assessment within 60 business days of the bore being identified in an underground water impact report. This is unless the State Government agrees to a later day.
• The resource company must use best endeavours to enter into a make good agreement with the bore owner within 40 business days after the bore assessment is undertaken, unless the State Government agrees to a later day.
• After the MGA is signed, the bore owner then has a ‘cooling off period’ of 5 business days to give written notice to the gas company if they wish to terminate the agreement.

Options

• If no agreement is reached by the end of the negotiation period, either party may provide the other party with a written notice (called an ‘Election Notice’) seeking to enter into dispute resolution. Alternative Dispute Resolutions (ADRs) are initiated by completing a form known as an ‘Election Notice’ – click to download a copy of the ADR Election Notice.

The options for dispute resolution are:

1. Enter into a conference with an authorised officer from the Department of Resources by providing a copy of the ‘Election Notice‘ to the Department’s Compliance Unit and the other party.

   The authorised officer will help facilitate a discussion between the parties with the aim of working through the issues in dispute and to reach agreement.

   No party can be represented by a lawyer unless the other party agrees and the authorised officer is satisfied there is no disadvantage to the other party.

   The authorised officer must take all reasonable steps to ensure the conference proceedings are finished within 30 business days, or if the parties agree to a longer period – that day.

   This is a non-binding, low cost option.

2. Enter into an ADR process.

   The intent is to work through issues in dispute with the aid of an independent expert outside of a court proceeding.

   The resource company must bear the costs of the person facilitating the ADR process, regardless of which party called for the ADR.

   There are four types of ADR to choose from:

   1. Mediation – an independent and neutral person facilitates a discussion between the parties to work out the issues in dispute and come up with an acceptable solution. The mediator does not advise or make any decisions.
   2. Conciliation – a neutral person who is an expert on the subject of the dispute discusses the strengths and weaknesses of each party’s arguments. The conciliator acts in an advisory role, but does not make any decisions.
   3. Collaborative negotiation – both parties work through their legal counsels to reach a negotiated agreement.
   4. Arbitration – an independent arbitrator acts as a judge. The arbitrator hears the arguments from both parties and makes a decision that is binding on both parties.
3. Either party may submit an application to the Land Court to resolve the dispute if:

   – the conference failed to finish within the required period;

   – the parties failed to finish the ADR process within the required period;

   – only one party attended the requested conference or ADR; or

   – an MGA was not reached at the end of the conference or ADR.

   The decision of the Land Court is binding on both parties.

The information shared during any of these ADR processes is maintained as confidential. ADRs are initiated by completing a form known as an Election Notice – click to download a copy of the ADR Election Notice.

For dispute resolution regarding potential breaches after “agreements are in place”, either party can contact the Land Access Ombudsman.

It is important to note the GasFields Commission does not ENGAGE in individual negotiations between landholders and resource companies, nor does it INVESTIGATE complaints made against individual resource companies.

Landholders wishing to lodge complaints about resource exploration or development activities should contact the Department of Resources’ Resource Community Infoline:

• Phone: 13 71 07
• Email: resources.info@resources.qld.gov.au
• Web (to lodge a complaint): https://www.resources.qld.gov.au/business/mining/resources-complaints-form.

This MGA Process Flow Chart below outlines the MGA process as per section 418 of the Water Act 2000. Resource companies are required to carry out a bore assessment and enter into an MGA if the bore has been identified as an Immediately Affected Area (IAA) bore in an approved UWIR, or DES has issued a direction notice for that bore.

The GasFields Commission’s Gas Guide and Roadmap have been specifically collated to deliver landholders a clear and easy to understand guide of what to expect during each stage of engagement with petroleum and gas developments, on private land, in Queensland – including detailed information around what dispute resolution options are available if negotiations with resource companies become challenging or stall completely (see Chapter 10 – Dispute Resolution). Download the Gas Guide and Roadmap for more information.