Year in, year out, Shawn Fresser’s 1,200-hectare farm near Dalby, 200 kilometres west of Brisbane, produces the equivalent of about 1.5 million pairs of jeans, 6.8 million loaves of bread and 2.5 million kilograms of corn chips.
He grows cotton, legumes and grain on the fertile soil of the Condamine flood plain. Land here is worth more than twice the national agricultural average and is classified by the Queensland government as prime agricultural area.
“What we’ve got here is really special,” Mr Fresser said.
“We could grow 15 to 20 different crops really easily … all while using rain events to store water and rotating the crops to add carbon back into our soils through organic matter.”
But now, the state government is considering a proposal by Shell-owned Arrow Energy to drill several coal seam gas wells under Mr Fresser’s property, to extract water and gas.
Mr Fresser is concerned that he will have no avenue to access compensation for damages caused by the activity.
In a statement, Arrow Energy said it wanted the agriculture and gas sectors to thrive together.
“Queensland’s Mineral and Energy Resources (Common Provisions) Act 2014 requires us to compensate landholders where it’s established our activities have caused an impact to their operations,” a spokesperson said.
“That’s the case regardless of whether there’s an upfront agreement in place or there’s gas infrastructure on, or under, a landholder’s property.”
‘Scarily grey legal area’
Mr Fresser’s lawyer Peter Shannon said cases like the Condamine farmer’s sat in an area of legal uncertainty.
“The long-standing English law that we’ve inherited has rights such as trespass and nuisance that say if someone causes you damage, you’re entitled to compensation,” he explained.
“But over time, acts of parliament have encroached and it’s got to a point where, while ever the [mining] activity is authorised, landholders have very limited ability to claim compensation.”
Mr Shannon said the law became more convoluted when the potential damages occurred below the land’s surface.
“Generally, land ownership ceases at the point the landowner may no longer make actual, beneficial use of the sub-surface space … sub-surface land is therefore normally owned by the state,” a Queensland Department of Resources fact sheet reads.
And the coal seam gas industry operates predominantly in this sub-surface land.
Mr Shannon uses the analogy of an octopus: the head — the gas well pad — on one person’s land, but the tentacles — the deviated pipelines — stretching out underneath the land of the neighbours.
This puts landholders like Mr Fresser, who might have resource activity underneath them, in a “scarily grey legal area,” according to Mr Shannon.
“The resource companies hide behind the greyness.”
Huge losses at stake
The impact of deviated drilling on the ground’s surface is the biggest concern for landholders.
“If they drill under us, subsidence will definitely be a big problem,” Mr Fresser said.
Subsidence, a natural phenomenon only recently recognised for its correlation with gas activity, occurs when changes to coal seams underground cause the land’s surface to shift and sink.
The Queensland Office of Groundwater Impact Assessment (OGIA) reported about 100 millimetres of CSG-induced subsidence has already occurred in gasfields near the Condamine Alluvium.
On a farm like Mr Fresser’s, that has been laser-levelled to allow flood irrigated water to flow, any sinking of the soil could have a huge impact — potentially resulting in millions of dollars in damage.
“We have four water storage dams, and they range from storing 300 to 700 megalitres of water each,” Mr Fresser said.
“If the ground underneath one of those dams was to sink it could cause the whole thing to burst.
“I don’t want to know what damage that could do to either our crops or our people.”
Access to compensation?
When it comes to receiving compensation for these potential damages caused by a resource company, a case like Mr Fresser’s is breaking new legal ground.
The Queensland Department of Resources said, “where a landholder’s land is within the area of a resource authority and a compensatable effect is caused by directional drilling on or under the land, they will be entitled to compensation”.
But to lawyer Peter Shannon, these are “weasel words”.
He said the first hurdle for landholders would be proving their damage occurred within the authorised area of the resource authority.
“It’s not uncommon for some people to have two or three tenures [authorised mining areas] on their land, owned by different gas companies, or to be dissected by a tenure on either side.”
Mr Fresser, for example, has a tenure running through the middle of his place that encompasses some of his storage dams but excludes others.
“If you get over that hurdle, you then have to prove you have suffered a compensatable effect,” Mr Shannon said.
With no mention of subsidence within Section 81 of the Minerals and Energy Resources (Common Provisions) Act, Mr Shannon said “you’ve got the problem of having to prove subsidence as a compensatable effect”.
“It’s just an absolute nightmare for landholders, who can see all these avenues that gas companies have to resist their compensation claims,” he said.
“They’re going to have to be prepared to go to court and be prepared to lose, which is a position they simply shouldn’t be in.”
Restricted compensation
In a recent report, independent statutory body Gasfields Commission Queensland recommended the state government provide a “statutory framework that ensures appropriate protection for landholders where CSG-induced subsidence can be demonstrated”.
The Gasfields Commission also acknowledged the legislation restricted compensation to landholders who were located within the bounds of the resource authority.
“There should be a mechanism for [those outside those bounds] to access impact assessment and potential recourse for impact regardless of whether they are on or off tenure,” the report read.
‘No control’
In the quiet of the night, as his young family sleeps, Shawn Fresser lies awake.
“There’s a whole bunch of emotions that you feel daily with this stuff,” he said.
“I go through stages I want to fight it, then I go through stages that I just want to sell up and give up.
“People often ask me if my kids want to come home and be farmers, and I have to say I don’t know if I want them to, and that’s heartbreaking.
“I have no control over my own place.”
