The mediation and arbitration process for access to land

If the explorer wants to access land for exploration then the explorer must first negotiate a land access arrangement with the landholder. If a land access arrangement is agreed, exploration can commence provided the terms of the land access arrangement are met.

If a land access arrangement cannot be agreed, and the explorer chooses to pursue land access, then the law provides for a process of mediation and potentially arbitration. Most land access arrangements are successfully negotiated without the need for mediation or arbitration.

This process is shown in the diagram below.

The NSW Government has released a document that details the process of dispute resolution through mediation and arbitration. View the Land Access Arbitration Procedure (PDF, 1.18 MB). All parties, including the arbitrator, must follow the approved procedures unless they agree otherwise.

Mediation

Mediation is a dispute resolution process where the arbitrator, who is an impartial third party, tries to facilitate an agreement between the parties by encouraging the landholder and the explorer to find solutions based on their mutual interests.

• Fact sheet: Land access framework - Mediation and arbitration (PDF, 173.82 KB)

Appointment of an arbitrator

If the parties are unable to agree to a land access arrangement within 28 days of the landholder receiving the notice of intent served by the explorer, the explorer can make a written request to the landholder seeking agreement to appoint an arbitrator.

If, after a further 28 days following the landholder’s receipt of the request to seek agreement to appointing an arbitrator, the parties are unable to agree on the appointment of an arbitrator, either party can apply to NSW Resources to appoint an arbitrator from the Arbitration Panel. Download the AD1 Application to appoint an arbitrator form under the General Administrative tab on the Mining Act 1992 forms page.

There are strict rules regarding the serving of notices under the mediation and arbitration procedure. If a notice is sent by mail, the date of receipt is 7 working days after the notice was posted, unless there is evidence the notice was delivered earlier. The 28 day notice period starts from the day after a posted notice is received. Explorers should keep all records and evidence of mail postage and its receipt.

Further information on the correct service of notices can be found in the Fact sheet: Service of notices (PDF, 135.25 KB).

The Arbitration Panel

The Minister administering the Mining Act 1992 appoints the members of the Arbitration Panel.

A person is eligible for appointment as a member of the arbitration panel if they:

• are an accredited mediator under the National Mediator Accreditation System, or hold practitioner or advanced practitioner membership, with LEADR and IAMA
• have extensive agricultural or resources industry experience or are an Australian legal practitioner of at least 7 years with extensive litigation experience (in the opinion of the Minister), and
• have extensive arbitration experience (in the opinion of the Minister).

Members of the Arbitration Panel are appointed for up to 3 years. Arbitrators may be reappointed to the panel for more than one term.

The current list of Panel Arbitrators is on this webpage.

Conduct of mediation

As soon as practical after being appointed, an arbitrator must conduct a mediation between the landholder and the explorer.

The landholder and the explorer are required to participate in the mediation process in good faith. Both parties are entitled to be heard during the mediation and are entitled to have legal representation.

A key advantage of mediation is that the power to make decisions relating to the dispute remains within the control of the parties. The arbitrator manages the mediation process but has no decision-making power at this stage. Mediation can also preserve a positive relationship between a landholder and an explorer.

Mediation ends if:

• the parties reach an agreement on a land access arrangement, or
• the parties agree to terminate the mediation, or
• either party terminates the mediation, by notice in writing, served on the other party and the arbitrator, or
• the arbitrator terminates the mediation.

Arbitration

If mediation does not result in agreement between the parties, the matter proceeds to arbitration. Arbitration is a more formal dispute resolution process where an arbitrator hears each party, examines and evaluates the facts and evidence, and makes a determination to resolve the dispute.

The arbitrator who acted as mediator in the unsuccessful mediation cannot be used for the arbitration stage unless all parties (including the arbitrator) give their written consent. If this consent is not given, the parties may agree to appoint a substitute arbitrator, or if a substitute arbitrator cannot be agreed within 7 days of the mediation being terminated, NSW Resources may appoint an arbitrator if requested to do so by either party.

Conduct of arbitration

As soon as practical after unsuccessful mediation, the arbitrator must arrange a hearing and provide notice to both parties regarding the proposed time and place for the hearing. Both parties are entitled to be heard at the hearing and are entitled to have legal representation.

The parties are obliged to participate in the arbitration in good faith. The arbitrator may still conduct the hearing even if either of the parties fails to attend. The arbitrator must act according to equity, good conscience and the substantial merits of the case.

Withdrawal from mediation/arbitration process

A party subject to the formal mediation/ arbitration provisions of the Mining Act 1992 cannot unilaterally withdraw from the statutory processes once the Secretary has appointed an arbitrator. 
An arbitrator appointed by the Secretary has a statutory responsibility to fulfill the requirements of the Land Access Framework provisions of the Mining Act 1992. The Secretary cannot, for example, revoke an arbitrator’s appointment at the request of the applicant should they no longer wish to proceed obtain a land access arrangement over the land. 
Sections 145(3), 148(1A) and 153(1) of the Mining Act 1992 deal exclusively with the withdrawal from the mediation/arbitration process once initiated.
 

The arbitrator's costs

Where an arbitrator is appointed from the Arbitration Panel, the explorer bears the costs of the arbitrator. This includes a daily rate, travel, accommodation, meal and car allowances as well as remuneration including the cost of any support staff such as a typist or stenographer.

DPIRD acts as an intermediary for payments to panel arbitrators.

Liability

The arbitrator is protected against legal action for any action directly authorised by the relevant Act provided the arbitrator acts in good faith.

The interim and final determinations

Within 14 days of the interim determination being served, either party can approach the arbitrator seeking a reconsideration of the land access arrangement or a variation to the draft land access arrangement.

If the parties do not approach the arbitrator within this time, the interim determination becomes the arbitrator's final determination. If a review is requested, the arbitrator sets a time and place to continue the hearing. Once the process is completed, the arbitrator serves the written decision as a final determination.

Once the arbitrator's final determination is served, either party may apply to the Land and Environment Court within 14 days of the determination for a review of the determination. The application must be accompanied by a copy of the determination and land access arrangement. The applicant must also provide a copy of the application to the other party in the determination. The arbitrator is not involved in the Land and Environment Court review process.

Arbitrated Land Access Arrangements

As soon as practicable after a final determination is made by an arbitrator, the explorer must provide NSW Resources with a copy of the land  access arrangement.

Since 1 December 2016, a register of all final determinations is maintained by the department and is provided below.

Personal information (within the meaning of the Privacy and Personal Information Protection Act 1998) about an individual and confidential information is not included on the register. The Secretary has the discretion not to include other information that they determine should be kept confidential.

Arbitrated Land Access Arrangements Register