© Dr Andrew J Cannon

MODERNISING LAND USE

REGULATION: BEYOND AN

ADVERSARIAL MINDSET

OUTLINE

• Historic winner takes all mindset to land

access

• Out dated regulatory frameworks for rights of

access to land and obligations to manage it

• Court dispute determination based on rights

enforcement is ill adapted to managing

competing interests

THE

ADVERSARY

MINDSET

• In politics – question time

• In the media – conflict = accuracy

• In the courts – adversary dueling

counsel

• In multiple land uses – disputes

LAND TITLES ARE ABOUT

POWER

• Henry the Conqueror granted an Estate in

Fee Simple to the Barons and their heirs

• The gift of ownership was the foundation of

centralised power

• The King established courts that

recognised this ownership

• Fee Simple meant ownership of everything,

even the serfs, but not the royal minerals

gold and silver- Case of Mines 1568 (1568) 75 ER 472

TERRA AUSTRALIS

50,000+ years

TERRA NULLIUS

226 years

Whereas it has been represented to me that divers

of His Majesty’s subjects have taken possession

of vacant lands of the Crown under the pretence

of a treaty, bargain or contract for the purchase

thereof with the Aboriginal natives … I the

Governor … do hereby proclaim that every such

treaty, bargain or contract is void and of no effect.

SQUATTING AND

SELECTION

TORRENS TITLE

REGISTRATION

• Torrens Title registration- The Real

Property Act 1886

• Absolute and indefeasible title: the

foundation of economic development

• Until 1880s mineral rights were

granted with the freehold

• Then mineral rights withheld and

granted under a separate system

SEPARATE MINING TITLES

• Separate title system developed for

exploration and mining rights

• All pre 1889 mineral rights were resumed

by the Crown under the Mining Act 1971– A person dispossessed could claim a private mine

within three years.

– Private mines are not registered under the RPA

• Separate title system developed for oil

and gas

SEABED JOINT REGIME

• Fraser government in 1977 came to joint regime-

legislation under 51(xxxviii)- Power of Imperial

Parliament

• Coastal Waters (State Powers) Act 1980

– States have jurisdiction over 3 mile limit

– Petroleum (Submerged Lands) Act 1967 (Cth)

passed as both State and CW legislation-

control and royalties for contiguous zones

shared to edge of continental shelf

– Other minerals Minerals (Submerged Lands)

Act 1981 (Cth)

ENVIRONMENT REGULATION

Adelaide Dolphin Sanctuary Act 2005 (SA); Arkaroola

Protection Act 2012 (SA); Development Act 1993 (SA);

Environment Protection Act 1993 (SA); Marine Parks

Act 1997 (SA); National Parks and Wildlife Act 1972

(SA); Native Vegetation Act 1991 (SA); Natural

Resources Management Act 2004 (SA); Pastoral Land

Management and Conservation Act 1989(SA); Radiation

Protection and Control Act 1982(SA); River Murray Act

2003 (SA); Wilderness Protection Act 1992 (SA);

Heritage Places Act 1993 (SA)

And then the Commonwealth Environment Protection and

Biodiversity Conservation Act 1999 (Cth)

OTHER RESOURCE TITLES

• Water rights

– Murray Darling Basin Plan

– State plans managing water allocation and

use

– Tradeable so another registration system

• Environmental rights and obligations

– State systems- eg SA Natural resource

Management plans affecting all uses

– Commonwealth overlay for major projects

– They apply to mining operations

NATIVE TITLE

• Mabo, Wik, Yorta Yorta

• Native title tribunal

• SA has 3 regimes:

– Pastoral, oil and petroleum: Commonwealth

native title regime

– Mining: Part 9B Mining Act 1971 (SA) and Pt 7

Opal Mining Act (SA) 1991 recognised by the

Commonwealth

– Indigenous land use agreements (ILUAs)

• Aboriginal Heritage Act 1988 (SA) – s 23 offence to

disturb a site

• Aboriginal and Torres Strait Islander Heritage

Protection Act 1984 (Cth)

WINDMILLS

• Approvals managed under fast track

planning laws

AUSTRALIAN LAND LAW

UNTIL 1991Land was owned by:

• An Estate in Fee Simple (freehold title)

– Subsidiary interests of leaseholds, trusts,

mortgages etc at discretion of the owner

• Crown leasehold- pastoral leases

– Subsidiary interests of leaseholds, trusts,

mortgages etc subject to Crown consent

• Torrens title system provided certainty

• Certainty underpins economic activity

• Mining and oil and gas rights granted under

separate title systems

AUSTRALIAN LAND LAW 2014• Freehold and leasehold registered

• Mining titles under separate system

• Separate titles for oil, gas and geothermal

• Separate regime for coastal waters

• Pre-existing native title identified under CW native title

regime, state regime, ILUA …

• Aboriginal heritage protection: Aboriginal and Torres

Strait Islander Heritage Protection Act 1984 (Cth) + State

regimes

• Water- Murray Darling basin plan and State regulation

• Environment – State and CW regulation

• Windmills and planning regulation

= uncertainty

We need a better registration system to provide

certainty around these coincident interests

THE COURT SYSTEM

• Enforcing order- criminal law; and rights – debt,

contract, damages for injury etc not balancing

competing interests

• Adversary process that drives people apart

• Non expert, non participating decision maker

• Static: i.e. decision at one time, not dynamic

• Parties lose control

• Public

MEDIATION IS BETTER

• Interest not rights based

• Private

• Ongoing relationships

• Trust

• Continuity and transparency

• Reframe language

• But do need a WATNA

ENFORCEMENT

• Enforcement has been moved from lower courts

(Wardens Courts and specialist tribunals) to

government departments

• Parties are increasingly seeking recourse to

review of decisions in the Supreme Court

• In SA decisions such as Ocsalt v Minister [2012]

SASC 166, Mintech v Russell-Taylor [2012]

SASCFC 67: The Supreme Court has endorsed

huge delays and gross breaches of conditions

• Rigorous enforcement of the obligations in

tenements is at risk

• Administrative review cases in higher courts can

be expensive, slow and unpredictable

SPECIALIST TRIBUNAL

• No costs

• Non adversarial

• Expert and can inform itself

• Minimal pleadings and pretrial

processes

• Use of mediation techniques

• Early trial dates

• Lawyering for solutions not victory

• Or specialist arbitration processes

THE EIGHTH WATERHOLE

MINDARIE SANDS

PROJECT

SUMMARY

• Titles reflect power and control

• The concept of freehold title having unbridled

rights is long gone

• Coincident land, native title and mining title

rights, windmills, and water rights and

protections need to be reconciled

• All resource users need certainty to finance

their operations and to look after the land for

future generations

CONCLUSIONS

• Update registration systems to

provide certainty

• Move beyond an adversary mindset

• Relationship management not third

party dispute determination

• Specialist tribunals or arbitration

where all else fails