By JULIUS DENNIS
A landholder with a history in fighting mining companies over land access says that “the government’s created a monster” by giving the petroleum industry the upper hand over pastoralists in legal proceedings in the NT.
“It’s a huge power imbalance, and it’s been exacerbated by the way the regulations have been turned on their head in this state.”
That’s according to Peter Martin, who along with Lawyer Marylou Potts and Top End pastoralist Daniel Tapp (pictured) who arrived at the NT Cattlemen’s Association (NTCA) annual extravaganza in Alice Springs last Friday. Their goal was to talk to as many pastoralists and land lease holders as they could.
Their message: Do not sign land access agreements with mining companies.
The stream of publications tearing down the “gas led recovery” has been flowing thick and fast of late, and the trio of Potts, Tapp and Martin say there is no feasible future for both gas and cattle in the NT: The two industries are incompatible.
“It’s a myth,” says Ms Potts, who often represents pastoralists and farmers in legal battles with the mining industry.
One primary concern brings up the topic of flow of underground water.
Mr Tapp says that according to a study done in Katherine, underground water can flow up to 15 kilometres in a day. Previously it had been estimated to move at roughly one meter per year.
“We’re talking rivers, we’re not talking sandstone, we’re talking caverns,” says Ms Potts.
The group says that gap in water knowledge is indicative of the entire exploration industry in the NT Beetaloo basin.
Combine that with “slanted” regulations distilled in the Petroleum Regulations 2020 which came into effect on January 1, and landholders in the NT, particularly pastoralists, are at risk.
“Risk and liability is transferred to pastoralists, and the value is transferred to the petroleum title holder, who now takes a part in any sale, so it’s a very tilted playing field,” says Mr Martin, a landholder who successfully fought a coal mine being established on his land in NSW.
Mr Tapp says recommendations of the Pepper Report have been ignored by all parties who support the Petroleum Regulations, which have “chucked a spanner in the works surrounding insurance and liabilities,” for landholders across the Territory.
The way that the legislation is built, land access agreements are only necessary for actions after preliminary work, which Mr Tapp says is effecting insurance and land value: “Insurance companies are moving away from covering properties with gas infrastructure.”
Ms Potts says the last two Environmental Management Plans (EMPs) over her client’s land were approved by the NT Department of Environment without “proper or any consultation or engagement” with landholders.
“It’s problematic for pastoralists because it means that the department is not acting as a regulator and enforcing or even checking the mandatory regulation requiring stakeholder engagement.”
Another problem, the trio says, is the 90 day time frame for stakeholder consultation does not give pastoralists a chance to undertake their own “baseline testing” to assess the veracity of the draft petroleum company’s EMP.
“If you can’t argue damage you can’t be compensated for the damage that’s occurred.”
In other words, a proper understanding cannot be achieved of the state of their land in order to comment and object prior to mining activities being approved.
Some of the chemicals and techniques used even for exploratory measures can be high risk for the landholder.
Ms Potts says that pastoralists faced with land access agreements “must” lawyer up, with lawyers who have expertise acting for landholders against the petroleum industry.
She has seen a number of land access agreements and says that there are often holes in the paperwork that pastoralists may miss if they don’t know what they are looking for: “For example, the Sweet Pea and the Santos documents don’t have a termination clause. So if they breach, for example, if they have a huge spill, the pastoralists can’t say: ‘Stop — all out.’
“In order to terminate, the pastoralists have to go to the tribunal, which takes a lot of time, and it costs money. You’ve got to gear up, you’ve got to get all your documents together, you will get affidavits etc etc etc.
Mr Martin says “even if it made sense financially, which it doesn’t, or environmentally, which it doesn’t, the regulations have got to be set so that the pastoralist, the landowner [or] the farmer is no worse off after the activity.
“It’s transferring value from the person sitting on the land, and spending all his money on it to these guys who come in, out of nowhere, and sell a bill of goods, and are only there for a relatively short period of time.”
In New South Wales, where Ms Potts has teamed up with Mr Martin over disputed mining work on his own property, “there is a statutory right in the act to deny access.
“We ended up suing the government, we ran multiple court cases,” says Mr Martin.
“The big breakthrough for us was we called a major judicial review on a section of the Mining Act — Section 31 — which was ‘significant improvements’ and had never been tested in court.
“This provision really said ‘look if there’s significant improvements on a property, be they fences, gardens or buildings. The proponent or the coal company or gas [company] has to stay a certain distance away or they can’t go through those areas.”
As a result there was a precedent set that Mr Martin says “does flow across other jurisdictions in Australia”.
They won, but the costs incurred along the way were massive. So were the time costs, all of this took over a decade to play out in court.
Mr Martin says that is what pastoralists in the NT are now facing if legislation doesn’t change.
With the flipped nature of how things work in the NT, where the onus is on pastoralists to take mining companies to court, Ms Potts says: “Basically the pastoralists are subsidising the petroleum industry.”
By letting in the petroleum industry in place of pastoralism, the group says that the cattle industry will be pushed out. Despite the vastness of the Territory, there is still only so much space.
“Most people don’t realise that these wells are connected to each other with roads and pipelines for water, you know, they’ve got a drain off the produced water when they’re in production. Let alone the toxic crud they bring out from underground when dewatering a well, trying to get the gas out,” says Mr Martin.
The NTCA gave their tick of approval for the regulations but Ms Potts says they are up against national and international heavy hitters in the petroleum industry: “Does the Cattlemen’s Association have the expertise that the petroleum industry has in drafting these sorts of regulations?
“There should never have been regulations. The standard minimum protections should be in the Petroleum Act. They should have gone through Parliament, not be the subject of negotiation with the Australian Petroleum Production & Exploration Association (APPEA).
“In my view it [may] now be very difficult for pastoralists to sell pastoral leases. It’s really difficult to sell their pastoral leases because their pastoral leases are now shackled with the access arrangement.
“What’s the value of the pastoral lease if you can’t sell it?”
Mr Tapp, whose family has been in the NT cattle industry for generations, wants people to look at the big picture: “What’s happening down in the Beetaloo is going to affect me, affect you and affect everyone one way or the other.”
All the communities are drinking out of the same water table.
“We’re all gonna be breathing the same friggin air, we need to protect the environment, water and ecosystems for future generations. It’s not about me.”
MAP at top: The Sweetpea Petroleum Environmental Management Plan EP136 in the gas prospective Beetaloo Basin only shows six proposed wells. Under the Petroleum Code of Practice wells can be drilled every two kilometres. That means more than 40 wells could be drilled in the inside the L-shaped lease area marked by brown lines.
The News is asking the NTCA and the APPEA for comment.