Why did the government commission this review?

On 15 April 2014, the NSW government commissioned Mr Bret Walker SC to undertake an independent review of the land access arbitration processes relating to exploration under the Mining Act 1992 and the Petroleum (Onshore) Act 1991

The review was called for following community concerns regarding a lack of public information about the arbitration process and the role of the arbitrator and the need for improved governance and transparency regarding the arbitration process more generally. The community also raised concerns about perceived conflicts of interest and the important issue of who pays the costs associated with arbitration.

Who did Mr Walker consult with before making his recommendations?

Mr Walker's review was informed by targeted consultation with stakeholders including farmers, irrigators, cotton and wine growers, exploration companies presently involved in the arbitration process as well as current members of the Arbitration Panel. Stakeholder groups such as the NSW Farmers Association, NSW Minerals Council, The Institute of Arbitrators and Mediators and the NSW Law Society's Arbitration Committee were also consulted.

The government also invited submissions from members of the public and a total of 31 submissions were received and considered by Mr Walker in developing his recommendations.

Does the government still think arbitration is the best way to negotiate land access arrangements?

The best outcome is always one where the parties reach an amicable agreement themselves. Many landholders reach agreement with exploration companies through private arrangements to give access to their land. However, where this is not possible, arbitration is an important step in determining land access arrangements between landholders and explorers. Arbitration serves as an alternative to the courts and is generally less formal.

Mr Walker found the fundamentals for arbitration to be sound but suggested a range of improvements to the land access arbitration framework to address weaknesses that relate to transparency, accountability and consistency. Mr Walker made 32 recommendations for change to enhance the system which were outlined in his report, Examination of the Land Access Arbitration Framework.

Does the government propose to implement the recommendations in the review?

Yes. The government has endorsed all of Mr Walker's recommendations relating to the land access arbitration framework and committed to a comprehensive process of implementation. This will involve changes to policy, regulations and legislation. Work to implement the recommendations will start immediately through the establishment of a new Panel of Arbitrators and development of new procedural guidelines for arbitrators. Other changes will require amendments to the Mining Act 1992 and the Petroleum (Onshore) Act 1991.

Will the government be amending the law?

Some of the improvements to the arbitration framework recommended by Mr Walker require changes to the Mining Act and Petroleum (Onshore) Act. It is intended that new legislation will be introduced into the NSW Parliament in 2015.

Can an arbitrator determine whether mining goes ahead/mining exploration licences are granted in some communities?

No. The role of the arbitrator has always been to determine land access disputes between landholders and explorers. The arbitrator does not examine whether mining licences should be granted. This issue relates to the role and function of land use generally and is addressed by development assessment processes under the Environmental Planning and Assessment Act 1979.

The terms of reference for the Walker Review required an examination of the arbitration process that determines land access and compensation disputes between land holders and exploration companies.

Bret Walker has recommended all current panel arbitrator appointments be terminated.  What does that mean for current arbitrations?

There are currently four arbitrations by panel arbitrators on foot and it is intended that the parties will continue with current arbitrations until determined as recommended by Mr Walker. Land access arrangements determined by arbitrators may be reviewed in the Land and Environment  Court in accordance with current legislative processes.

There may be other arbitrations being conducted by other non-panel arbitrators, as agreed by the parties. These arbitrations are not affected by the changes.

A new Arbitration Panel is being established through an open and transparent nationwide expression of interest process, subject to recommended eligibility criteria. Arbitrators will be appointed following an independent assessment process and existing arbitrators will have the opportunity to apply through this process.

When will the new arbitration panel be established?

Advertisements seeking expressions of interest for appointment as a Panel Arbitrator will be placed in nationwide newspapers over coming weeks. It is intended that the new panel will be up and running before the end of 2014.

What qualifications and experience will arbitrators be required to hold for appointment to the Panel?

A person will be eligible for appointment to the panel if they:

  • are an accredited arbitrator through a recognised body such as the NSW Law Society, the Institute for Arbitrators and Mediators or the National Mediator Accreditation System
  • have extensive arbitration experience.

In addition, a person must either:

  • have extensive resources or agricultural industry experience, or
  • be a legal practitioner who is eligible for appointment to the Supreme Court, with considerable litigation experience.

How will the recommendations in the Walker Review provide more transparency around the appointment of arbitrators?

The eligibility criteria for being appointed as an Arbitrator will be strengthened and appointments will be limited to a maximum of three years to enhance transparency in the appointment process.

The Secretary of the Department of Industry will continue to appoint an arbitrator from the Arbitration Panel on a rotational basis.

A public register of Arbitrators with contact details and qualifications will be developed and new procedures governing the arbitration process will be developed and made available to the public.

The government will undertake performance reviews of the arbitration framework every two years to ensure the objectives of the legislation are being met and that the system meets community and stakeholder expectations.

What improvements will be made to the arbitration process to benefit landowners and explorers?

The arbitration process will be made more efficient and transparent for landholders and explorers through:

  • a new appointment process for arbitrators with specific eligibility criteria and performance measures
  • new procedural guidelines to guide the parties in an arbitration including faster timeframes for completion of matters with the aim of completing mediation and arbitration within three months. Currently some matters have continued for up to 18 months causing significant delays and costs for all parties involved. The changes being introduced will aim to significantly reduce the time associated with arbitration bringing immediate benefits to landholders and explorers 
  • a public register of arbitrators including contact details and qualifications and mandatory disclosure by arbitrators of relevant employment and financial dealings to mitigate against conflicts.

Landholders and explorers will also benefit from changes to the legislation which will clarify and simply the law and provide greater certainty for all parties including, for example:

  • allowing site inspections and legal representation to support the process and keep the arbitration on track
  • requiring all parties to negotiate in good faith
  • providing better guidance in the law regarding the definition of a significant improvement to the land
  • making arbitration decisions public
  • clarifying the law on costs and compensation and giving greater certainty to all parties by enabling landholders to recoup from explorers their reasonable legal costs, their reasonable time spent negotiating and arbitrating an access arrangement and the cost of engaging experts, up to a capped amount and duration.