By Katherine Curnow and Professor Laurence Boulle
In conjunction with Professor Michael Weir and Dr Tina Hunter, we are looking into private landholder perceptions of the negotiations they have had with resource companies about conduct, compensation and access agreements (CCAs) as part of a broader project to design an optimal regulatory structure for land access. The negotiations we are examining occur in connection with the heavily regulated activity of coal seam gas extraction (CSG). Resource companies with authority to extract CSG frequently need to access private land in order to conduct extraction related activities. There has been growing concern about the impacts on the use and enjoyment of private land by its owners and occupiers (landholders) from the long term (often for decades), co-existential use of the land by resource companies and landholders. While a landholder cannot refuse access to their land, Queensland legislation (and that in many other Australian jurisdictions) requires resource companies to enter into CCAs with landholders.
Our analysis of the complex environment in which CSG extraction activities occur has lead us to conclude that promoting the public interest and not simply the interests of the negotiating parties, managing information asymmetry between the parties and appropriately allocating the cost of negative externalities resulting from CSG development activities warrant regulatory intervention in relation to CCAs, their negotiation and disputes while they are on foot. A key objective of any regulation must be to promote the integrative dimension of the negotiations. For our full analysis of these issues, see our forthcoming article in the Australasian Journal of Natural Resource Law and Policy:
Boulle L, Hunter T, Weir M, Curnow K, “Negotiating Conduct and Compensation Agreements for Coal Seam Gas Operations: Developing the Queensland Regulatory Framework” 17(1) AJNRLP
Interviews we have conducted with landholders have produced evidence of a distributive dimension to many CCA negotiations. Landholders perceive that resource companies use power: including through withholding information and utilising a “big stick” approach to the negotiations, as well as add-ons in the negotiation of CCAs. We are, therefore, exploring how to encourage timely and fulsome information exchange and the use of power for creative problem solving. We are analysing the suitability of both express regulatory obligations (such as in the Native Title Act 1993 (Cth) in relation to the negotiation of indigenous land use agreements) as well as NUDGE-type strategies.
How, in your view, can the integrative dimension of negotiations be effectively promoted, whether through regulation or otherwise?