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February 8, 2023

Mining arbitration system broken: Greens

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The Greens have cautiously welcomed the state government’s announcement of an independent review into mining arbitration and have called on resources minister Anthony Roberts to suspend all ongoing arbitrations until the review is concluded and the government has responded.

Minister Roberts yesterday announced an independent examination of the arbitration process across the state in relation to land-access agreements between farmers and mining companies.

The NSW government has appointed Bret Walker SC as the legal counsel to oversee the analysis.

Currently landholders are legally obliged to allow mining companies onto their land and must come to the arbitration process, at their own expense, if they fail to reach a voluntary agreement.

Local gas explorer Metgasco has so far relied on voluntary agreements but other mining companies in the state have resorted to government legislation to force themselves onto properties where landowners decline to negotiate.

In announcing the review Mr Roberts acknowledged there had been ‘concerns raised by the public that the land-access arbitration process lacks transparency and consistency’.

‘Concerns have also been raised about arbitrators and perceived conflicts of interest,’ he admitted.

‘The NSW government has listened to these concerns and acted by appointing one of the state’s leading barristers.’

But Greens MP and mining spokesperson Jeremy Buckingham said the review was ‘an admission by the government that the current mining arbitration system is broken’.

Mr Buckingham described the review as ‘no more than tinkering at the edges’ and said that ‘a fair and proper process will not be in place until the government stands up to the mining lobbyists and enshrines in legislation the right of landholders to say no to mining on their land’.

He said that in the context of the review, however, ‘landholders and the environment must be in no worse-off condition as a result of exploration and mining’.

‘The cost and risk of land access, arbitration and exploration must also be borne wholly by the mining companies,’ he added.

Mr Roberts said Mr Walker would assess the land access arbitration process including corporate governance arrangements under the Petroleum (Onshore) Act 1991 and Mining Act 1992.

‘In light of the concerns raised, this examination will ensure the role of the arbitrator is clear, that arbitration processes are transparent, impartial and consistent, and that there are robust corporate governance processes in place to support the arbitration framework,’ he said.

‘I want to ensure the rules for both sides are made clear and that the referee in control has the full facts and powers to do the job.’

The final report and recommendations are expected within three months.

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