Pastoralists should identify the water and operational assets that matter to the station before activity begins, then ensure any access or commercial agreement clearly deals with monitoring, disruption, rehabilitation, liability and review. The legal position will depend on the mining or exploration licence (as the case may be), the pastoral lease, government policy, approvals and proposed activity, but early preparation gives a family stronger footing in discussions.
What should pastoralists consider when nearby mining or exploration may affect water, access or station operations?
Our Agribusiness Team discuss this important topic.
Water is part of the operating business
For a pastoral operation, water is not an abstract resource. It supports stock, people, infrastructure and the daily rhythm of the station. A change in the reliability, quality or accessibility of a bore can affect operations quickly, particularly where the alternatives are costly or limited.
The Pilbara groundwater allocation plan (Plan) recognises that water abstraction can create risks for groundwater quality, groundwater-dependent environments and other users. The Plan establishes how the government will allocate and regulate the use of groundwater in the Pilbara. To obtain the maximum benefits from the Plan, a pastoralist should understand the available information about their water sources and raise concerns early.
Build a baseline before a dispute develops
Before exploration, construction or significant groundwater activity begins nearby, gather the records that explain the station’s present position. That may include bore locations, water levels and quality, stock water demand, pumping and power arrangements, recent maintenance, photographs, maps and relevant operational records.
A baseline does not need to become a technical exercise run by the pastoralist alone. Where the risk warrants it, a hydrogeologist or other specialist can advise on the information worth collecting and how monitoring should occur. The important point is to avoid having to reconstruct the starting position after a concern has already emerged.
Read the access document for its operational effect
An access agreement, option or related arrangement may give a third party rights to enter, survey, test, build infrastructure or use particular routes. Its commercial effect often extends much further than the fee payable for entry. It can affect where people travel, how gates are managed, biosecurity, stock movements, station roads and who carries the cost when something goes wrong.
The agreement should identify the routes that can be used and require notice before work begins, particularly where activity may affect mustering, water infrastructure, baiting programs or other station operations. It should nominate practical contacts for the station and the proponent, set site rules for personnel and contractors, and make clear who is responsible for damage to roads, fences, gates, bores, tanks, troughs, pipelines and other improvements.
It is also sensible to address insurance, repair timeframes, rehabilitation and a process for resolving operational concerns before they become disputes. Where access is likely to continue for years, regular review meetings can help make sure the arrangements still work for the station and the project.
Make water a defined issue
Where water is a concern, it should be dealt with expressly in any access agreement (or similar). Consider whether the agreement should provide for baseline monitoring, access to monitoring information, notification of relevant incidents or changes, agreed points of contact and a process for independent review where a concern cannot be resolved. The arrangement should also set out who pays for any agreed technical work and how the parties will respond if monitoring identifies a material change.
The appropriate arrangements will depend on the project and the hydrogeology. A pastoralist should be wary of accepting broad assurances in place of practical commitments. An agreement cannot remove every risk, but it can establish what information will be shared and how the parties will respond if circumstances change.
Plan for the life of the project
Resource projects and related infrastructure can operate for many years. Families should consider who will manage the relationship with the proponent, whether the next generation understands the commitments made and how the arrangements will sit alongside succession plans, financing and the pastoral lease.
Rehabilitation and financial security deserve particular attention. A promise to repair damage has greater value when the document says what must be restored, when it must occur and what security supports the obligation. The same care should apply to any long-term easement, licence or access right.
Good judgement before the commitment
The value of early advice lies in understanding how a proposed arrangement will operate in practice across the lease, the station business and the family’s longer-term plans. That work is best done before access is granted or a document is signed.
HHG Legal Group can assist pastoralists to review proposed access and project agreements, identify the issues that matter to the station and work with technical and commercial advisers where required.