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10-November 2013

It's trespass: except when a mining company says it isn't

Farmers are unable to prevent people from entering their land, undermining their rights as landowners. Concerns have been raised by the Victorian Farmers Federation that two Victorian acts, the Mineral Resources (Sustainable Development) Act 1990 and the Petroleum Act 1998, remove the property rights of farmers if miners decide to explore on their land for gas or minerals.

Nearly identical parts of each act (sections 43(1)(e) and 128) ensure that private landowners cannot stop miners entering their property. The law allows miners onto private land if they have:

  • obtained permission from the owners; or
  • made a compensation agreement with the owners; or
  • a tribunal or court forces a compensation order on the farmers.

In other words, if a farmer says I do not want you on my land, the next step for the miners is then to offer compensation. If that is rejected, the miner goes to court to have a compensation order forced upon the farmer. With this court enforced order, the miner is free to enter the landowner's property, even if the farmer is still objecting to it.

As the Mineral Resources Act shows, trespass isn't trespass if you have a court ordered authority in your hot little hand.

No progress can justify the removal of fundamental property rights from landowners. We have the right to say who can enter our property and when; we can't have the state forcing unwanted visitors on us.

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