Resolving disputes

Resolution Institute MERCPA Special Scheme

Resolution Institute Mineral and Energy Resources
(Common Provisions) Act 2014 (QLD) (“MERCPA”) Special Scheme

Mineral and Energy Resources (Common Provisions) Act 2014 (QLD)

The Mineral and Energy Resources (Common Provisions) Act 2014 (“MERCPA”) was enacted to streamline and modernise Queensland’s mining and resources laws and in so doing, MERCPA deals extensively with matters relating to agreements between Resource Authority Holders and Landowners in respect of:

  • land access for the purposes of the mining of resources by the Resource Authority Holder; and
  • allocation of appropriate compensation to Landowners as Eligible Claimants.

Eligible Claimants and Resource Authority Holders may enter into a Conduct and Compensation Agreement which will regulate the:

  • Resource Authority Holder’s entry onto the land of the Landowner as the Eligible Claimant;
  • Mining activities undertaken on that land; and
  • Liability for compensation to the Eligible Claimant as a result.

Where the Parties seeking to agree to a Conduct and Compensation Agreement under MERCPA have not reached agreement within the statutory period of negotiation (presently 20 business days or longer by written agreement of the Parties), one or both of the Parties may, under the provisions of MERCPA, seek to bring about resolution by way of:

  1. Alternative Dispute Resolution (“ADR”) - such as Mediation or Conciliation; or
  2. Arbitration.

This process is commenced under the provisions of the MERCPA by the issuance of an:

  • ADR Election Notice (in the case of ADR); or
  • Arbitration Election Notice (in the case of Arbitration).

Resolution Institute’s Role in Dispute Resolution under MERCPA

The Resolution Institute can assist Resource Authority Holders and Landowners under MERCPA by facilitating and conducting ADR (such as Mediation or Conciliation), or Arbitration between the Parties, where negotiations have been unsuccessful in entering into a Conduct and Compensation Agreement.

These processes, initiated and conducted by the Resolution Institute are designed to facilitate the formation of a Conduct and Compensation Agreement under MERCPA upon mutually agreed terms, by:

  1. Mediation – a dynamic process where an impartial Mediator will assist the parties to independently form a Conduct and Compensation Agreement based upon mutually accepted and agreed terms;
  2. Conciliation – a process similar to Mediation, where an impartial Conciliator undertakes a more active role in advising and providing alternatives to the parties in assisting them to come to agreement upon a Conduct and Compensation Agreement reflecting mutually accepted and agreed terms; and/or
  3. Arbitration – a process where the parties will have equal opportunity to present all relevant matters to an impartial and qualified Arbitrator who will make a determination as to an appropriate Conduct and Compensation Agreement for the parties based upon the overarching considerations of fairness and the law.

The ADR or Arbitration processes as facilitated by the Resolution Institute pursuant to s. 88 and s.91A of MERCPA:

  1. can be initiated by either the Resource Authority Holder or Landowner;
  2. include ADR (such as Mediation or Conciliation) or Arbitration; and
  3. are designed to facilitate agreement between the Parties in a relatively quick and inexpensive manner.

In order to assist the Parties move toward resolution by commencing the appropriate process, MERCPA also provides for a procedure whereby the Resolution Institute, at a Party’s request, is empowered to provide a decision for the Parties where they cannot agree upon the:

  • ADR Type (Mediation or Conciliation) and/or ADR Facilitator (Mediator or Conciliator) to conduct the ADR; or
  • Joint Appointment of an Arbitrator.

Decision by the Resolution Institute on the ADR Type and ADR Facilitator or Appointment of Arbitrator Pursuant to s. 88(6) and s.91A(6) of MERCPA

The Resolution Institute is prescribed by the Mineral And Energy Resources (Common Provisions) Regulation 2016 (“the MERCP Regulations”) as the “Prescribed ADR Institute” and the “Prescribed Arbitration Institute” for the purposes of the Mineral And Energy Resources (Common Provisions) Act 2014 (“the MERCPA”) and in particular the application and effect of s.88(6) and s. 91A(6) of MERCPA.

Where the Parties cannot agree upon the:

  • ADR Type (Mediation or Conciliation) and/or ADR Facilitator (Mediator or Conciliator) to conduct the ADR; or
  • Joint Appointment of an Arbitrator.

a Party may approach the Resolution Institute to make a decision in respect of the proposed:

  • ADR Type (Mediation or Conciliation) and/or ADR Facilitator (Mediator or Conciliator); or
  • Appointment of Arbitrator.

Where a party has issued an ADR Election Notice or Arbitration Election Notice pursuant to the MERCPA (whether as the Eligible Claimant or the Resource Authority Holder) and the Party to whom the Notice was issued either does not accept within the statutory period (10 days for ADR and 15 days for Arbitration) or refuses the Notice, the Party may apply to the Resolution Institute for a determination to be made in respect of the following matters:

  1. ADR:
    • ADR Type (Mediation or Conciliation) and/or
    • ADR Facilitator (Mediator or Conciliator); or
  2. Arbitration:
    • Appointment of an independent Arbitrator to conduct the Arbitration.

A decision on these matters by the Resolution Institute under the MERCPA, allows the Parties to move forward with ADR or Arbitration without the process remaining stifled by lack of agreement at the earliest juncture.


Application Process