MLL316 Final: MLL316 Mining and Energy Law 2018 Notes
12 Jun 2018
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MLL316 Mining and Energy Law
Table of Contents
Topic 1 – Ownership of Resources......................................................................... 2
Topic 2 – Resource Titles: Permits, Licences and Leases ................................... 8
Topic 3 – Australian Offshore Regulation ............................................................ 16
Topic 4 – Climate Change Issues for the Mining and Energy Sector ................ 22
Topic 5 – Environmental Regulation of Energy Production ............................... 31
Topic 6 – Renewable Energy ................................................................................. 37
Topic 7 – Onshore Resource Expansion: Unconventional Gas ......................... 45
Topic 9 – Revenue: Royalties, Profit Sharing and Taxation ............................... 52
Topic 10 – Carbon Capture Storage Regulation .................................................. 59
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Topic 1 – Ownership of Resources
The production of energy is a vitally important industry for Australia.
Energy law includes finite and non-finite energy reserves: oil, natural gas,
coal, uranium (nuclear energy), solar energy, wind energy, wave energy, tidal
energy, ocean thermal energy conversion, hydro-electricity byomass,
hydrogen and geothermal energy.
Mining and extraction of fossil energy resources is a vitally important
component of energy law Energy Law.
Energy Law examines: ‘the allocation of rights and duties concerning
the exploitation of all energy resources between individuals, between
individuals and the government, between government and the states
The production of energy impacts the environment and in the onshore zone,
communities.
The production of land-based energy can impact land ownership for all
landowners – ie freehold estates and native title
Impacts on private land owners – this is a difficult issue
This aim of this course is to examine the different regulatory frameworks for
resources relevant to the production of energy.
It also seeks to provide an understanding in key areas of legal regulation in
sustainable energy technologies and new markets.
Ownership of land is one form of ownership, and the ownership of resources
is the other form of ownership.
Energy resources
Energy law regulates the exploitation of energy resources.
The methods of turning energy resources into productive and profitable use
differ greatly and the involvement of the law must be separately considered.
Both domestic and international law is applicable
GATT Treaty (General Agreement on Tariffs and Trade) and UNCLOS
(United Nations Law of the Sea) may be relevant.
Important regulatory areas: pipelines regulation (esp for domestic gas), the
protection of confidentiality and rights to intellectual property, project security,
the construction of petroleum contracts, project financing, native title rights ,
and the scope and sufficiency of environmental safeguards
We touch on these issues in different topics
Ownership of Minerals and Natural Resources
Renewable and Non-Renewable Resources: petroleum, oil, gas, minerals.
Renewable energy resources: solar, wind energy, hydro-electricity etc
COMMON LAW: ‘cuius est solum eius est usque ad coelum et ad
inferos’(the person who owns land owns it from the heavens above to the
centre of the earth below.)
Maxim traceable back to 1285 English land law
Criticism of Maxim: The English Court of Appeal in Star Energy Onshore
Ltd v Bocardo Ltd [2010] 1 Ch 100 at [59] described the latin phrase as ‘not
part of English law.’ (see also Commissioner for Railways v Valuer
General,[1974] 1 AC 382 at p351: its use, "whether with reference to mineral
rights, or trespass in the air space by projections, animals or wires, is
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imprecise and it is mainly serviceable as dispensing with analysis.”)
(Materials Reading 1)
Aikens LJ in Bocardo concluded that the ‘correct’ common law position is that
the registered freehold proprietor of the surface will also be the owner of
strata beneath the surface including minerals unless there has been an
express or implied alienation to another (quoting from Mitchell v Mosley [1914]
1 Ch 438.
Star Energy Onshore Ltd v Bocardo Ltd [2010] 1 Ch 100
Facts : The land owner Bocardo sued Star Energy Onshore in trespass that
had been drilling for petroleum under the plaintiff’s land. The wellhead was on
neighbouring land. The drilling pipelines descended to a depth of 2,800 feet
under the adjoining plaintiff’s land. The company had a licence to extract
petroleum but did not have the plaintiff’s permission.
Court of Appeal: the cuius est solum maxim should not be taken literally as it
would lead to absurdities – ie literally ownership to the centre of the earth. The
plaintiff’s surface ownership did, however, extend sufficiently downwards to
prevent others from interfering with minerals under the surface. This meant
Star Energy was in trespass by laying the pipelines.
Trespass was purely technical - no loss of enjoyment. Damages were
assessed in the same manner as cases of compulsory land purchase – were
only £1 000
The right of the licensee to extract(ie pursuant to the licence) was only over
the authorised area and this did not include Bocardo’s land. The right
includes a right to use reasonable (ordinary and proper) means to extract the
resource including boring (Re an Arbitration between Lord Gerard and London
and North Western Railway Company[1895] 1QB 459 at 466 per Lord Esher.
Essentially;
The common law maximum is still in force but interpreted realistically
Subjected to statutory vesting
Maximum goes down to 2,800 feet
Down to the center is unreasonable
Subsequently, in Star Energy Weald Basin Ltd v Bocardo SA [2011] AC
380, the Supreme Court affirmed the Court of Appeal decision.(Materials
Reading 2)
Lord Hope: The latin maxim retained some utility as a general guide to the
common law position regarding sub-surface ownership.
See also P. Butt, “How Far Down Do You Own? The Final Word’ (2010) 84
Australian Law Journal 746.
Public Ownership Framework: State Owned Minerals
Common Law: Surface estate owner owns minerals and everything in the
land down to a reasonable level.
Statutory Modification. Public ownership framework sets out that all
minerals and resources in the ground are owned by the state.
All states and territories passed legislation reserving all minerals in land for
future Crown grants.
Document Summary
Topic 2 resource titles: permits, licences and leases 8. Topic 3 australian offshore regulation 16. Topic 4 climate change issues for the mining and energy sector 22. Topic 5 environmental regulation of energy production 31. Topic 7 onshore resource expansion: unconventional gas 45. Topic 9 revenue: royalties, profit sharing and taxation 52. Topic 10 carbon capture storage regulation 59. The production of energy is a vitally important industry for australia. Energy law includes finite and non-finite energy reserves: oil, natural gas, coal, uranium (nuclear energy), solar energy, wind energy, wave energy, tidal energy, ocean thermal energy conversion, hydro-electricity byomass, hydrogen and geothermal energy. Mining and extraction of fossil energy resources is a vitally important component of energy law energy law. Energy law examines: the allocation of rights and duties concerning the exploitation of all energy resources between individuals, between individuals and the government, between government and the states.
