Who really owns your land?

There is growing concern among Australian landholders, particularly in Queensland, regarding seemingly unauthorised entry and use of their land by coal seam gas companies for exploration activities, or the construction of an extraction plant or future pipelines. Understandably, many landowners are fighting to keep these coal seam gas and other mining companies away from their properties as they feel these actions construe a violation of their rights as landholders. But are these rights able to be enforced legally? This article outlines what rights landholders have, as well as the rights of coal seam gas companies.

Who owns minerals and resources in Queensland and on what basis?

Despite the belief held by many Australian landholders that they own their land absolutely including anything above or below it, due to the Doctrine of Tenure, the law in Australia holds that the Crown has absolute ownership - not withstanding any native title claims.

While freehold property ownership (the most common property title granted in Australia) entitles the owner of the land to own it for perpetuity, it is in essence a type of legal relationship landholders are granted with the permission of the Crown.

In Australia, minerals, oil and gas are ‘reserved to the Crown’ which means Australian state governments retain the rights to these resources if they are found on freehold land.

What if I have a ‘fee simple’ interest in my property?

A fee simple (freehold) interest in property is a legal term used to represent the maximum ownership interest a landholder can have over real property. Put simply, fee simple ownership is ‘complete ownership’ and grants land owners a number of rights over their land, such as:

  • Building a home or conducting a business upon the land;
  • Selling or subdividing the land; or
  • Passing it down in a Will when they die.

However, while a fee simple or freehold interest provides owners with complete ownership of the land, multiple parties can still legally have differing valid rights over the same land.

Apart from freehold (fee simple) land, the other most common form of land tenure in Australia is non-freehold land or a leasehold interest in land.

Landholders can check what type of freehold grant they have by conducting a title search through their relevant state government’s Department of Natural Resources and Mines.

What about my common law right to absolute ownership of land?

Common law rights in Australia tend to confer a definitive right to landholders to use and enjoy their land without interference from other people. The common law also provides forms of compensation for those affected by instances in which their rights are infringed upon. However, this common law landowner’s right was altered by statute in all jurisdictions in Australia and the Crown was granted the right to reserve ownership over land and the rights to petroleum, gas and other minerals that may lie on or under land owned in fee simple. At law, in situations where common laws and statute are conflicted,  statute will always prevail.

In Queensland, under the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld), coal seam gas companies are permitted to access land to conduct surveys with the possible intention of fracking on the land in the future. This right is conferred by the Crown who has the right to grant a title to another in order to explore for and/or produce minerals such as coal seam gas and petroleum.

This means that the Queensland Government can allow separate interests to be held over a single property. So, while land can be owned as a freehold interest, a coal seam gas company can also hold a title that allows it to enter the property to search for and produce gas.

However, this duality of rights does not mean that a coal seam gas company has an unfettered discretion to access a landholder’s land by virtue of holding a resource authority. The exploration and production of mineral resources are controlled by a system of licences and leases that outline the authorised activities allowed and are subject to appropriate landholder access agreements.

If you own land that is of interest to resource companies or that you think may include mineral resources, ensure you seek legal advice to have your individual circumstances assessed. Call 1300 DSS LAW for more information.

Disclaimer

DSS Law insight articles are intended to provide commentary and general information. They should not be relied upon as formal legal advice. If you would like specific advice relating to this topic, please contact DSS Law on 1300 DSS LAW or epost@dsslaw.com.au.