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Offshore Minerals Bill 1997 (Qld) Legislation Bulletin

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Offshore Minerals Bill 1997 (Qld) Legislation Bulletin ELECTRONIC VERSION OFFSHORE MINERALS BILL 1997 (QLD) LEGISLATION BULLETIN NO 1/98 HELEN GREGORCZUK QUEENSLAND PARLIAMENTARY LIBRARY Publications and Resources Section BRISBANE February 1998 ISSN 1324-860X ISBN 0 7242 7377 8 This Legislation Bulletin was prepared to assist Members in their consideration of the Bill in the Queensland Legislative Assembly. It should not be considered as a complete guide to the legislation and does not constitute legal advice. The Bulletin reflects the legislation as introduced. The Queensland Legislation Annotations, prepared by the Office of the Queensland Parliamentary Counsel, or the Bills Update, produced by the Table Office of the Queensland Parliament, should be consulted to determine whether the Bill has been enacted and if so, whether the legislation as enacted reflects amendments in Committee. Readers are also directed to the relevant Alert Digest of the Scrutiny of Legislation Committee of the Queensland Parliament. © Queensland Parliamentary Library, 1998 Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Parliamentary Librarian, Queensland Parliamentary Library. Inquiries should be addressed to: Director, Research Publications & Resources, Queensland Parliamentary Library, Parliament House, George Street, Brisbane. Director: Ms Mary Seefried. (Tel: 3406 7116) Information about Research Publications can be found on the Internet at: http://www.parliament.qld.gov.au/library/research/index.html CONTENTS 1. PURPOSE........................................................................................................ 1 2. BACKGROUND.............................................................................................. 2 2.1 SOME HISTORY OF MARITIME ENTITLEMENTS & OFFSHORE POWER ...... 2 2.2 OFFSHORE CONSTITUTIONAL SETTLEMENT............................................... 3 2.2.1 Background to Offshore Constitutional Settlement ................................. 3 2.2.2 The Specifics of the Offshore Constitutional Settlement.......................... 6 3. OFFSHORE MINERALS LEGISLATION ................................................. 10 3.1 OUTLINE OF PROVISIONS OF THE OFFSHORE MINERALS BILL................. 11 3.1.1 Preliminary Issues................................................................................. 12 3.1.2 Interpretation........................................................................................ 12 3.1.3 Administration of the Commonwealth - State Offshore Area................ 15 3.1.4 Application of the Bill........................................................................... 16 3.2 REGULATION OF OFFSHORE EXPLORATION AND MINING - CH 2 ............. 16 3.2.1 Ownership of Minerals Recovered - How Does it Sit with Native Title?........................................................................................ 16 3.2.2 Tenure Holder and Interference with Other Activities in the Tenure Area......................................................................................... 17 3.2.3 The Licensing Scheme .......................................................................... 17 3.3 CHAPTER 3 - REGISTRATION AND DEALINGS ........................................... 22 3.4 CHAPTER 4 - ADMINISTRATION ................................................................ 22 3.4.1 Royalties - Part 4.4............................................................................... 23 3.5 CHAPTER 5 - APPLICATION OF LAWS & JURISDICTION OF STATE COURTS23 4. CONCLUSION.............................................................................................. 24 BIBLIOGRAPHY ............................................................................................. 25 APPENDIX - DIAGRAM A - COMMONWEALTH-STATE OFFSHORE AREA......................................... 27 APPENDIX - DIAGRAM B - COASTAL WATERS OF A STATE............... 29 APPENDIX - DIAGRAM C - MAP OF THE COMMONWEALTH- STATE OFFSHORE AREAS ......................... 31 Offshore Minerals Bill 1997 (Qld) Page 1 DATE OF INTRODUCTION: November 19, 1997 PORTFOLIO: Mines & Energy HANSARD REFERENCE 19 November 1997, SECOND READING: pp 4429-4430 1. PURPOSE The Offshore Minerals Bill was introduced into Parliament on 19 November 1997 by the Hon TJG Gilmore MLA. The purpose of the Bill is to establish a legislative framework to govern mineral exploration and mining in Queensland’s coastal waters, which reflects the Commonwealth legislation the Offshore Minerals Act 1994, applying in adjacent Commonwealth waters.1 1 Hon TJG Gilmore, Offshore Minerals Bill, Second Reading Speech, Queensland Parliamentary Debates, 19 November 1997, p 4429. Page 2 Offshore Minerals Bill 1997 (Qld) 2. BACKGROUND Australian sovereignty extends beyond the land and Australia’s internal waters, to a belt of sea around Australia known as the territorial sea.2 The issue of what rights Australia has over and beyond that territorial sea, and the width of the territorial sea have been the subject of a complex matrix of international customary law, multilateral treaties, bilateral agreements and domestic legislation. Further, the fact that Australia is a federation has caused some complexity as to which level of government, state or federal, has jurisdiction over particular waters. Under the Offshore Constitutional Settlement of 1979, the Commonwealth and States agreed that a common offshore mining regime should apply in Commonwealth and State waters. State coastal waters extend three nautical miles from Australia’s territorial sea baseline and Commonwealth waters lie beyond the three nautical miles to the twelve nautical mile limit. Commonwealth waters are administered under various pieces of legislation including the Offshore Minerals Act 1994 (Cth). 2.1 SOME HISTORY OF MARITIME ENTITLEMENTS & OFFSHORE POWER The Imperial Parliament in England had full extra-territorial power, and this extra- territorial power was formally recognised in relation to the Commonwealth parliament through the Statute of Westminster 1931 (UK) and the Statute of Westminster Adoption Act 1942 (Cth), which adopted retrospectively to the beginning of World War 2, the Statute of Westminster 1931 (UK). Extra-territorial power then is power with respect to activities that take place outside Australia. Broadly speaking, Australia means the land mass of continental Australia and Tasmania and the other islands, the airspace superjacent to these areas and the subsoil and subterranean regions underlying these areas, as well as the internal waters of Australia falling within these areas.3 It may also include the territorial sea, which after 1990 was increased to twelve nautical miles in place of the previous three nautical mile territorial sea.4 In 1979 2 Attorney-General’s Department, Australia’s Territorial Sea Baseline, Australian Government Publishing Service, Canberra, 1988, p 3. 3 Douglas Fisher, Environmental Law, Text & Materials, Law Book Co, Sydney, 1993, p 111. 4 Fisher, p 111. Offshore Minerals Bill 1997 (Qld) Page 3 Australia established a 200 nautical mile fishing zone, whilst in 1983 certain territorial sea baselines were proclaimed by Australia.5 In relation to the states, there was some doubt about their ability to legislate extra- territorially, until the enactment of the Australia Act 1986.6 Prior to 1986 it was recognised that States generally have plenary legislative power, the primary limits being consistency with Commonwealth legislation and some connection with the State enacting it.7 Pearce v Florenca was a key case on the issue, with Gibbs J advocating that the test should be liberally applied, and that legislation should be held valid if there is any real connection, even a remote or general connection between the subject matter of the legislation and the State.8 2.2 OFFSHORE CONSTITUTIONAL SETTLEMENT In the early 1970s the States challenged in the High Court the assertion of sovereignty by the Commonwealth over the then three nautical mile territorial sea, under the Seas and Submerged Lands Act 1973 (Cth). The High Court upheld the Commonwealth’s assertion of sovereignty. At the 1979 Premiers Conference, the Commonwealth and the States completed the Offshore Constitutional Settlement. The agreement was heralded as marking the end of a difficult problem bedevilling Commonwealth-State relations and as a major coup for co-operative federalism.9 2.2.1 Background to Offshore Constitutional Settlement Since the mid 1940s the jurisdiction and control over offshore areas ¾ the international law of the sea ¾ has been one of the most significant and fastest developing issues in international law. Technological changes in communication, fishing techniques, and in seabed mining capabilities, have prompted these changes 5 Senator Vanstone, Maritime Legislation Amendment Bill 1993, Second Reading Speech, Senate Parliamentary Debates, 28 October 1993, p 2835. 6 e.g. Australia Act 1986 (Cth), section 2. 7 Pearce v Florenca (1976) 135 CLR 507, per Gibbs J p 517. 8 Pearce v Florenca (1976) 135 CLR 507, per Gibbs J p 518. 9 Attorney General’s Department, Offshore Constitutional Settlement, A Milestone in Co- operative Federalism, Australian Government Publishing Service, Canberra, 1980, p 1. Page 4 Offshore Minerals Bill 1997 (Qld) in the substantive law.10 These developments have been triggered by a sharp increase in the demand for resources,
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