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Energy & Resources Update

Energy & Resources Update focuses on issues relevant to the Australian energy, mining, oil and gas industries.

Contract clauses that allow the owner to exit the contract at will are commonly seen in the energy and resources sector — and they are very important right now given the rapid changes in this area with variable demand for commodities and the scarcity of capital for project delivery. The question is when and how can these clauses be used?

Managing the impacts of subsidence has been a topic of debate in NSW for several years. We examine the key developments of the past decade but even today the ground has not yet fully settled and further refinements are inevitable in years to come.

With several geosequestration projects operating worldwide and with the imminent commencement of projects in Australia, the legal issues surrounding geosequestration need to be addressed. This article focuses on the final and legally most contentious stages, of geosequestration — injection and storage— and the regulation of offshore geosequestration, particularly the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (OPGGS Act).

The proposed Carbon Pollution Reduction Scheme generally imposes liability for fossil fuel emissions on upstream fuel producers who are likely to pass on the costs to downstream users. While this model is expected to work well in many cases there are circumstances where it is undesirable so in response, the Commonwealth has developed the Obligation Transfer Number (OTN) mechanism.

Click here to print out all of the articles in this edition

Previous issues:
Coal seam gas is now the major source of gas in the Queensland market with CSG fields in New South Wales currently under development. The significant increase in CSG production has generated increasing volumes of waste water, about which there is widespread concern due to its high salinity and the presence of other impurities. The Queensland Government is currently considering a raft of legislative and regulatory amendments which aim to increase regulatory controls aimed at environmentally sustainable outcomes and greater beneficial use of CSG waste water.
On 1 July 2009 the Australian Energy Market Operator began functioning as a single integrated energy market operator and national electricity transmission planner for all Australian jurisdictions, except Western Australian and the Northern Territory. AEMO's functions are fundamental to the continued operation, development and reform of the energy sector in Australia and are underpinned by the detailed regulatory systems.
Changes to National Electricity Market bidding practice can be expected as a result of the Australian Energy Regulator's imminent publication of its Revised Guidelines for Rebidding and Technical Parameters.
The technologies behind coal seam gas and underground coal gasification are poised to revolutionise Australia's coal mining and energy industries by offering cleaner power station fuel alternatives to coal. However CSG and UCG are potentially in conflict over the same land, prompting tenure access issues and also the question: can the Australian energy market support only one of these developing technologies?
Royalty rates are an important factor in making decisions about mining projects, including determining which States provide the best operating environment for new investments in resources projects.  If, as has been suggested, the Federal Government looks to replace state government royalty regimes with a federal resource rent tax, it may be timely to review how mining royalties are charged and the royalty rates that are payable across Australia.
The establishment the South East Queensland Water Market, the first of its kind in Australia, is an important step in securing a safe ongoing supply of drinking water for South East Queensland. We outline how the Water Market works, the regulatory framework, the regulation of water quality and further reforms in the pipeline.
Since its election, the Federal Labor Government has been working with the states and territories through the Council of Australian Governments to finalise the design of a new scheme designed to deliver on its promise to create a new national Renewable Energy Target of 20% by 2020. We discuss the key features and possible implications of the new scheme.

For those operating in the energy and resources sector, the new Division 250 of the Tax Act has important implications for both existing and new contracts, particularly when dealing with Government entities and non-residents.

Following an in principle agreement by the Council of Australian Governments on 26 March 2008, a water management plan for the Murray-Darling Basin could be one step closer.

China's draft Energy Law and first White Paper on energy, released at the end of 2007, are an attempt to address the inadequacy of current energy policies and strategies to support the country's strong energy demands, economic growth potential and environmental responsibilities.

While the Australian Bureau of Agricultural and Resource Economics' latest annual review of the resources and energy sectors highlights some interesting growth statistics, on the flip side are some important issues that weigh heavily across the sector.

Contrary to what some commentators might believe, the World Trade Organization can accommodate measures focussed on protecting the environment. But it does impose important disciplines on those measures when they impact on international trade.

In spite of Australia's strength as a resource exporter, there are clear signs that exploration is declining, and this is something that will significantly impact the sector in the short, medium and long term.

The Australian Competition and Consumer Commission's long-standing interest in the issue of vertical integration in the electricity industry has come to the fore, given the Owen Inquiry Report to the NSW Government and the government's response to its recommendations.

On 1 July 2007 Queensland will introduce full retail competition for electricity. We outline the practical implications of this change for customers and retailers, and the key legal issues.

The Queensland, South Australian and Western Australian governments have each announced renewable energy targets in the past two months. We provide an insight into the measures proposed and the various targets that have been set.

The Energy Reform Implementation Group's, final report Energy Reform: The Way Forward for Australia January 2007 was released on 13 April 2007. While the report asserts that Australia's energy markets are world-leading, it suggests five key areas for improvements.

The hot topic of emissions trading is squarely in the spotlight as States ponder establishing their own emissions trading scheme. Can constitutional powers be used, and what challenges might the States face from industry and the law in bringing about such a scheme?

The first tranche of reforms aimed at strengthening the efficiency and governance of Australia's gas pipelines, and increasing the penetration of natural gas in Australia, are due to commence on 1 July 2007. The new National Gas Law and supplementary National Gas Rules, the role of regulators such as the AEMC and potential long-term benefits for the gas industry are in the spotlight.

An illuminating look at current political thinking on nuclear policy, outlining the ALP uranium policy in the context of state positions and the Howard Government's commitment in this area. The creation of a uranium industry is complex and the debate at State and Federal level will continue to gain momentum.

The Australian Department of Environment and Water is exercising new powers to audit projects with environmental implications, in response to earlier changes to the Environment Protection and Biodiversity Conservation Act. Auditing procedures and compliance issues will impact at least 10% of projects with environmental approvals across all industries.

The Energy Reform Implementation Group, established by the Council of Australian Governments, released discussion papers that foreshadow substantial changes to the National Energy Market last Friday. This special edition of Utilities Update explores some of the important issues discussed in the report.
The introduction of the Wholesale Electricity Market in September was part of a number of significant reforms, which have occurred since 2004, in order to bring about greater energy competition in Western Australia.
The NSW State Government has passed legislation, which will have a major impact on the approval processes for the development of new gas pipelines in New South Wales and energy projects such as natural gas fired power stations reliant on the construction of lateral pipelines for their operation.

The Federal Court of Australia recently ordered ASX-listed company Green Pacific Energy Limited, and its subsidiary Green Pacific Energy Capital Pty Ltd, to be wound up following an application made by the Australian Securities and Investments Commission. The case, ASIC v Green Pacific Energy Limited and Ors [2006] FCA 1254, shows the need for good corporate governance in the management and administration of a company's affairs (whether listed or not).

The Victorian Government has set an ambitious target of increasing the share of renewable energy in Victoria by 10 percent by 2016, which is aimed at facilitating additional wind power generation and other renewable energy projects in the State.



© Minter Ellison 2010

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