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Client Update: Agriculture v mining – Queensland moves to protect key cropping land

2 March 2010

In brief: To ensure key food-producing land in Queensland is protected in the long term, the Queensland Government has created a new policy and planning framework for how other forms of development, such as mining and urban development, are to be undertaken on 'strategic cropping land'. Project proponents with 'incompatible' uses on declared strategic cropping land may find their projects cannot proceed. Partner Ben Zillmann (view CV) and Senior Associate Rochelle Carey examine some of the key elements to the policy.

The policy

The Government's policy position, as set out in the discussion paper, is that Queensland's best cropping land is a finite resource that should be conserved and managed long term. It aims to do this by utilising local and state planning and approval powers to protect the land from developments that would lead to permanent loss of use or productivity.

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Strategic cropping land

A number of criteria will determine whether an area is classified as 'strategic cropping land', including soil properties, slope, water availability and access to infrastructure. These areas could be anywhere in Queensland, with the preliminary map in the discussion paper identifying candidate areas on the Darling Downs, around Emerald and the coastal regions between Rockhampton and Cairns.

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Developments on strategic cropping land

Once an area has been classified as strategic cropping land, any developments on the land will need to be assessed before they can proceed. It is proposed that amendments will be made to the Mineral Resources Act 1989 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld) to ensure that strategic cropping land is considered as part of mining and petroleum applications. Other types of development (urban and major projects) are covered by the Sustainable Planning Act 2009 (Qld) and the State Development and Public Works Organisation Act 1971 (Qld). It is proposed that a new statutory planning instrument will guide planning for strategic cropping land under the Sustainable Planning Act 2009 (Qld). Guidelines are to be developed in order to ensure all proposed developments are assessed in accordance with the policy.

Currently under the Mineral Resources Act 1989 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld), mining and petroleum lease holders are only obliged to compensate landowners for loss of use of the land. There is no existing specific requirement for a decisionmaker, when granting the lease or environmental authority, to consider the impact of the mining or petroleum activity on cropping land, although the Minister could nevertheless consider such factors under his/her broader decisionmaking power.

Although the policy attempts to manage land use conflict, in practice a mining or petroleum lease applicant will need to satisfy the decisionmaker that their project will avoid the permanent destruction of strategic cropping land. In order to do this, they will need to show that the land is able to be fully reinstated to its previous productive capacity once the resource activity has ended. This is a high threshold and may be difficult to show for projects such as open cut mining operations. The policy acknowledges that petroleum and gas operations generally have a lesser impact than mining operations, so it is possible that petroleum and gas activities may be able to co-exist with agricultural development on strategic cropping land.

If a project proponent cannot satisfy the decision maker that strategic cropping land will not be permanently impacted, then any resource development may not be approved unless it is 'overwhelmingly in the public interest'. The scope of this test has not been discussed in the discussion paper. The Minister has indicated that if a development cannot pass the public interest test, the development will not be approved and the project proponent will need to investigate an alternative location for its project. With the purpose of the policy to protect land as a long-term food source for Queensland, yet with the resource industry also being vital to Queensland's economy, it will be interesting to see how the 'public interest' test is applied to projects which cannot show that they can fully reinstate strategic cropping land.

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Submissions

The discussion paper sets out seven questions for consideration and feedback:

Question 1: Are the criteria appropriate for defining strategic cropping land?

Question 2: What planning principles should be included in a new state planning instrument for strategic cropping land?

Question 3: What amendments should be made to the Mineral Resources Act 1989 and the Petroleum and Gas (Production and Safety) Act 2004 to protect strategic cropping land?

Question 4: Should petroleum and gas activities under the Petroleum and Gas (Production and Safety Act) 2004 be treated in a different manner to other mining development activities?

Question 5: Should mining proposals be assessed on all classes of strategic cropping land?

Question 6: Should all development proposals on strategic cropping land be assessed using common guidelines?

Question 7: How should permanent plantations for carbon sequestration on strategic cropping land be assessed?

The Queensland Government's discussion paper is open for submissions until 12 March 2010.

For further information, please contact:

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