Mining companies hold the trump cards in getting access to farmland ... Unlike the Obeids, not all rural landholders are bending over backwards to have coal explorers blight the bucolic landscape ... Shortage of adequate agents and knowledgeable arbitrators
Bylong Valley: ripe for coal exploration (pic by Christos Varvaressos)
WHAT a bind for land-owners dragooned into the arbitral process under the mining laws.
Rural landowners increasingly are beseiged by mining exploration companies.
Under the Mining Act, NSW, miners are required to reach agreement on access rights with people holding rural spreads.
However, the process is riddled with pitfalls (ignore the pun).
The Act says that parties can be represented either by an agent who is not a legal practitioner or, if the parties consent, by a legal practitioner.
The miners are reluctant to allow cockies to bring legal practitioners into the process, so land-owners have to fish around to find an agent, like a McKenzie friend, to hold their hand during the "arbitration".
There's the rub.
We know of one landowner who wanted as his agent a legally qualified person who did not have a practising certificate.
Craig Shaw, who owns land in the Bylong Valley, not far from Eddie Obeid's Cherrydale Park, near the infamous Mt Penny-Dreadful, had arranged for John Nader to be with him during the hearing.
Shaw is also secretary of the Bylong Valley Protection Alliance.
Nader is a retired judge of the NT Supremes and the NSW Dizzo, who now lives on his cattle property near Merriaw in the Upper Hunter. At this point in the process he did not hold a practising certificate.
Shaw thought Nader's expertise would be ideal and would be of benefit to both parties to the land access negotiations.
The company seeking entry to explore over 10,000 hectares in the valley for coal is the giant Korean power company KEPCO, whose local manager is Cockatoo Coal Ltd.
The exploration authorisations were originally granted in 1982 and 1984 and were held for many years by Anglo American before being sold in 2010 to KEPCO for around $400 million.
The Koreans are keen to do some extensive exploration to see if they can get their money back, plus some.
The retired judge thought he'd better check with the NSW Bar Association whether he could be Shaw's agent.
Oh, no, no, no - you can't do that, said the Bar 'n' Grill. You might give legal advice and that would be illegal unless you had a ticket (see s.14 LPA.)
Even though Nader met the requirements of being an agent under the Mining Act, he was snookered under the Legal Profession Act.
The Office of the Legal Services Commissioner couldn't see anything wrong with Nader being Shaw's agent, but wouldn't say so in writing.
As Nader told Craig Shaw:
"A legally qualified practitioner [without a ticket] is in that respect worse off than a lay person who would not be prevented from assisting at an arbitration."
The exception permitted by the Legal Profession Act is that a lawyer who is an employee of a company may, in certain circumstances, provide legal services without a practising certificate.
Prayers from Bylong farmers. Imbalance in negotiating strength (pic: Christos Varvaressos)
KEPCO-Cockatoo, while denying legal representation to landholders, is not adverse to using non-practising, legally qualified people in arbitrations.
In one hearing relating to land in the Hunter, Mike Jackson, a former senior lawyer at Gillis Delaney, appeared with KEPCO. He is Cockatoo's contracts manager.
So, employed lawyers can appear in the line-up for mining companies, but lawyers without tickets are in potential trouble if they appear for farmers.
Farmers also are unlikely to have on their staff employed lawyers without PCs.
At each step in the process mining companies can call the shots.
They can accept or refuse lawyers at the access arbitration, they can bring their own employed lawyers to the hearing, they can agree or not agree about the appointment of arbitrators, and which sort of arbitrator, and they can ask the minister to appoint an arbitrator from a special government panel (see s.142, s.143 and s.144 Mining Act.)
Landowners are concerned, rightly or wrongly, that where a government anointed arbitrator is appointed there is a perception of a possible conflict, because the mining company pays the arbitrator.
The cockies have been dealt a weak hand when it comes to negotiating with miners who want access to their land. As John Nader put it:
"The miner has a marked tactical advantage in a highly tendentious jurisdiction that the landowner must accept."
He wants the legislation amended to remedy this imbalance.
Craig Shaw had proposed that retired NSW Supreme Court judge Bob Hunter be the arbitrator in his case. This was knocked back by KEPCO:
"With regards to your nominated arbitrator; we must reject that nomination. We understand that His Honour Justice Hunter is a well-known advocate against coal mining in NSW and with all due respect to his eminent abilities and experience we can only perceive bias against KEPCO's mining activity."
See: Land users shout loud against 'legalised theft' by miners.
KEPCO has now required the government to appoint an arbitrator for the Bylong Valley dispute, and that is now contested by the landholders.
Farmers whose land is in the sights of mineral or coal or gas prospectors are hard pressed to find suitable arbitrators.
Unlike the Obeids, not all of them are desperate to have coal companies laying waste to the Arcadian serenity.
On the list of arbitrators from the NSW Law Society five are listed as qualified in resources and primary industries.
Of the 125 barristers listed as arbitrators or mediators only three mention mining or CSG experience.
Given the extent of the growing conflict between miners and rural landowners the lawyers are surprisingly ill-equipped to deal with the rising tide of disputes.
Research by Alix Piatek