Theories of Law LWB333- Topic 2: Coal Seam Gas and Lock the Gate- 3000 Words- 17 April
Queensland Minister for Natural Resources and Mines
Attention: Submission to inquiry regarding the Land Access Code (Qld)
Executive Summary: (500 words)
Coal Seam Gas and Lock the Gate
Land Access Code (‘LAC’) aims to increase protection for landowners with regards to Coal Seam Gas (CSG)Mining Activities being carried out on their property. These amendments apply to all resources acts; meaning the Geothermal Energy Act 2010 (GE Act), Geothermal Exploration Act 2009, Greenhouse Gas Storage Act 2009 (GHG ...view middle of the document...
This policy submission will critically evaluate the LAC provisions through a Utilitarian and a Law and Economic viewpoint.
The Utilitarian viewpoint
From a Utilitarian perspective, the LAC must be critiqued in its ability to create the greatest level of pleasure or happiness and the least amount of unhappiness or pain for all stakeholders. In the context of this policy critique, Jeremy Bentham is the leading utilitarian theorist. His scientific approach to the idea of utility allows for an objective framework to be used to resolve the current conflict between the rights of landowners and mining companies.
Despite being a fellow utilitarian and a follower of Bentham’s works, John Stuart Mill disagreed with the nature of ‘happiness.’ While Bentham conceded that there were no qualitative differences between pleasures, only quantitative discrepancies, this explanation of Hedonism was criticized for being too egalitarian. Mill’s “The Greatest Happiness Principle” extends upon Bentham’s principle, in saying that it is not the quantity of pleasure, but the quality of happiness. Despite the differences between either principle, Bentham’s theory will be used objectively to quantify happiness.
Due to the derivative nature of utilitarian rights, they are not as decisive as deontological theories. It would seem nonsensical to deem a right as ‘absolute’, thus adding strength to utilitarianism. The system of ranking rights among other interests under Bentham’s principle is advantageous, in that, the victor is the right which has the ability to maximize happiness.
In order to provide a definitive answer with regards to competing interests, the Law is required to put aside intellectual niceties and other deontological considerations. The consequences are used as the only relevant determinant. It is often difficult to weigh up the competing interests in terms of utility, thus certain rights and interests are assigned to stakeholders that have shown to maximize happiness. Therefore we utilize the following four criteria as a guide, not in a strict sense, in order to measure the overall effect of the Land Access Code on the relevant stakeholders:
1. Its intensity
2. Its duration
3. Its certainty or uncertainty
4. Its propinquity or remoteness
Landowners represent the primary opposition to Queensland’s LAC provisions. As resources are owned by the crown and not the property owner, the crown allows mining companies to access these resources and to negotiate access agreements and compensation with the landowner without their consent. Depending on the intensity and duration of the mining activities, a landowner may experience varying levels of ‘pain’. For example under the Mineral Resources Act 1989 (‘MRA’), the activities undertaken within an Exploration for Coal Permit (‘EPC’) range from ‘Preliminary Activities’ (such as soil sampling) to ‘Advanced Activities’ (such as drilling). Due to the type of permit or...