17 October, 2011 2:12PM AEDT
CSG: Can you really lock the gate?
By Jo Joyce
The environmental defenders office is urging NSW landholders to know and exercise their rights when it comes to negotiating with CSG companies.
Thousands of North Coast residents joined rallies over the weekend, to express concerns about the impact of the billion-dollar coal seam gas (CSG) mining industry.
They were part of national protests in New South Wales, Queensland and Western Australia in what is believed to be the largest demonstrations held in opposition to the controversial extraction technique.
The ABC’s phones have been running hot with people questioning their rights in respect to allowing or refusing entry to their land.
According to Sue Higginson, a senior lawyer with the Environmental Defenders Office in Lismore, it is essential that people understand and exercise the rights they do have.
Exploring or extracting on your land
Ms Higginson explains that the crown has ownership of all materials beneath people’s properties and NSW legislation grants rights to companies to explore for and extract minerals and petroleum products on behalf of the crown.
“A company has a right to communicate with a landholder … to provide a notice that they intend … to enter into an arrangement with that landholder.”
She says in the past, companies have done that by ‘walking through the gate’ and physically visiting the landholder at their home.
Locking the gate
The lock the gate ‘phenomenon’, according to Ms Higginson, started in relation to coal exploration and mining.
She says locking the gate (either physically or by displaying a sign) is something that landholders can do to communicate their unwillingness to allow companies onto their land.
“A company certainly can’t just come and unlock the gate,” she says.
CEO of major CSG company, Metgasco, Peter Henderson agrees that if there is a ‘lock the gate’ sign their representatives will not enter the property.
“Clearly we want to have the support of the farmers and landowners in doing our work … if we can avoid doing anything but voluntary agreements we certainly will.”
Mr Henderson also says to date, all access granted to Metgasco in the North Coast region has been voluntary on the part of the landholders.
He says the question of whether the company would pursue access in the case of being locked out of a property is ‘academic at the moment’ given they have not encountered that situation.
“We’ve found that people have been very happy for us to come on”.
Legally, however, a company like Metgasco can exercise their legislative right to communicate without ‘trespassing’ by sending a notice.
“The legislation provides,” says Ms Higginson, “in no uncertain terms that if the company makes contact with the landholder via a notice in the mail, that is a notice of intention.”
She points out that if the landholder fails to respond to such notices, the company may send a letter seeking that landholder’s attendance at an arbitration session.
While it is too simple to say landholders have no rights in the process, Ms Higginson says it is clear that some members of the community certainly feel that way when faced with the reality of their options.
“If a company is absolutely fixed on one particular property and they are going to exercise their legal rights … to obtain an access arrangement, then ultimately the only right that landholder is left with is a right to compensation.”
Initially, she says, a company will offer a ‘fairly standard’ access agreement.
However, if a landholder turns down that standard agreement and a process of arbitration occurs, she says the compensation is more likely to be discussed in ‘property by property absolute loss terms’.
All agreements, according to Ms Higginson, contain a clause that states that the company will ‘leave the property as they found it’.
“So in terms of compensation for damage, the assumption is there would be no damage.”
There is, she says, provision for recourse if damage does occur.
“If there is environmental damage, then there certainly is provision to open up that agreement and really discuss what’s required to fix that damage.
“If that damage is unfixable, then of course compensation is going to be the only real recompense”.
As far as environmental damage from the ‘public interest component of the environment’ goes, she says, there is no provision for compensation.
“The type of compensation we see is really only particular to that property and that property owner.”
Ms Higginson stresses the importance of landholders being well informed when entering into negotiations with companies.
“There is a bit of legal advice out there … [saying] basically you’re pretty doomed … just settle, negotiate access and get on with it.
“That, at this point,” she says, “is probably really not the most prudent advice to take on.”
She says if a landholder feels their land is valuable to their livelihood and future, and if they engage in the environment from a public interest point of view, it is crucial they get good legal advice and go into the details of contracts.
“We wouldn’t normally just make an agreement with someone that arrives on our doorstep about our most valued thing.
“It is a contract; it is about you entering into a contract.
“Do that entirely informed so that every aspect of your proprietary interest and your … public interest … really can be factored into a proper deal for proper and adequate compensation.”