Critical information is withheld from the public

Almost all information relating to gas fracking activities is considered to be ‘commercial in confidence’, hiding it away from the public, landholders and even Members of Parliament. This secrecy covers the following types of information: groundwater monitoring data; Air quality monitoring data; well integrity data and monitoring results.

This means landholders cannot access information about environmental impacts and water quality on their own land unless this information is voluntarily disclosed by the fracking company. In such cases the landholder is usually bound by non-disclosure clauses in their Land Access Agreements which prevent them from publicly disclosing this information.

Transparency and community consultation are virtually non-existent

Petroleum leases are issued with no consultation or community rights to object. Unlike mining, where community and landholders can object to the issuing of mining leases under the mining Act, there are no such rights for community under the Petroleum Act. Petroleum exploration leases are issued by the DMP with no process to consult or even notify the community, affected landholders or businesses. These leases are issued over large areas, regardless of the underlying land use. The Leases cover private land, crown land, national parks, conservation reserves and Native Title lands. No assessment of existing land use is conducted by the Department of Mines and Petroleum (DMP) prior to issuing the leases.

Similarly, drilling, fracking and other licenses are issued with no independent consultation process and no rights for the community or landholders to object. The DMP may require gas companies to undertake community consultation; however the conduct of these companies has often been described as deceptive and misleading.

Landholders have few rights

Landowners have no right of veto. In WA law, underground petroleum resources, including gas, are the property of the state, not the landholder. Petroleum titles are issued under the Petroleum and Geothermal Resources (PGER) Act to provide the right to petroleum companies to explore for, and develop, petroleum resources. This usually requires access to private lands.

Unlike minerals, which are governed under separate legislation, petroleum resources are considered to be ‘strategic resources’. This means that whilst landowners can prevent the development of mineral resources on their land, they have no such right to prevent the development of gas resources.

If a company needs to access your land to drill for gas, it can apply to a Magistrates Court to grant permission, even if you refuse. However, before going via the courts a gas company must spend at least three months trying to make a Land Access Agreement with the landowner. After three months the PGER Act provides that the matter shall be settled by a court, which can impose a Land Access Agreement and determine an appropriate compensation figure.