Frequently Asked Questions

Dlan0001 F 595X290Px Faq Page Dlan0001 400Pxlwx290Pxlh Application Stage02
What is Water for Food and the Land Tenure Pathway for Irrigated Agriculture?

Water for Food (WFF) is a Royalties for Regions program and is a key part of the State Government’s broader Seizing the Opportunity in Agriculture initiative. This initiative will provide a boost to regional Western Australian communities by developing and diversifying the WA agriculture and food sector. The focus of the Water for Food program is to accelerate surface and groundwater investigations and overcome barriers to investment and expansion, particularly land tenure constraints. The Department of Lands (DoL) is the lead agency for the Land Tenure Pathway for Irrigated Agriculture (LTPIA) Project, which aims to assist proponents in obtaining more secure land tenure to support high-value irrigated agriculture.

Why irrigated agriculture?

The agricultural sector is currently positioned to capitalise on the growing global demand for food and agricultural products by promoting local products, attracting new investment in agriculture, building on business skills, research and development, and creation of efficient supply chains. The Land Tenure Pathway for Irrigated Agriculture (LTPIA) is applicable to both Pastoral Leases and other Crown land.

Additionally:

  • There is interest in further developing pastoral land, which is already used for agriculture.
  • Diversifying activities within the pastoral estate provides an opportunity to grow fodder-related crops to improve the condition of cattle for export on a larger scale.
  • Providing opportunities for the private sector to lead development of under-utilised Crown land in the Rangelands.
  • Irrigated agriculture offers great potential to bring about the required changes to industry structure and land use as well as creating new business opportunities.
  • More secure forms of tenure offer the opportunity for stronger investment.
  • By expanding irrigated agricultural activities, opportunities are created for Aboriginal communities and Traditional Owners through employment and economic development pathways.
  • Diversifying rangeland and pastoral activities are ongoing programs for government, Department of Lands (DoL) and the pastoral industry.
Why not offer Diversification Permits?

Diversification Permits may be the best solution for many projects on Pastoral Leases, however, permits have limited application:

  • Small-scale activity to support pastoral operations
  • Can only be for activities related to pastoral use
  • Can only be held by the pastoral lessee
  • Non-transferable
  • Not registrable – which limits the possibility of obtaining additional finances through loans or third party partnerships.
What are the required referrals and consultation?

The DoL is required under the Land Administration Act 1997 (LAA) to obtain approval from the Minister for Mines under Section 16(3) of the Mining Act 1978 for any land disposal (leasehold or freehold).

Section 14 of the LAA requires the Minister for Lands to consult with the Local Government Authority before exercising power over Crown land within the district, and consult with any agency or body having a management order over a particular piece of Crown land if exercising power over that land (Section 12).

Other referrals and consultation are undertaken to identify other interests in the land – referrals can assist in identifying interests or proposals that are not recorded on a title; or identify regional strategies or Cabinet endorsed programs.

How are mining, petroleum and geothermal interests managed?

They are managed by:

  • DoL investigates mining, petroleum and geothermal interests that may exist over the land as part of initial tenure searches.
  • As mentioned previously, DoL refers proposals to the Department of Mines and Petroleum (DMP) to seek approval of the Minister for Mines under Section 16(3) of the Mining Act 1978 to enable disposal of land.
  • Any limitations due to these interests would be made clear to the proponent as soon as DoL receives the information from DMP. This is done before the Option is issued, to allow proponents to decide whether or not to proceed with their proposal.
  • The State will not undertake compulsory acquisition of existing pastoral and other interests without the agreement of affected interest holders.
  • It is proposed that mining, petroleum and geothermal interests may co-exist with irrigated agriculture. Therefore, as irrigated agriculture may co-exist with mining and petroleum exploration, the development of the land for irrigated agriculture will not limit mining and petroleum exploration.
How will native title rights be addressed? What is the value of native title? What could proponents expect compensation costs to be?

The Indigenous Land Use Agreement (ILUA) will address native title and benefits associated with surrender or suppression of native title rights. Surrender of native title is required for freehold tenure, and either suppression or surrender of native title is required for long-term leases. Whilst the State will ensure that compensation has been dealt with and the State’s interests are protected, the commercial arrangement (Ancillary Agreement) between the Native Title Party and proponent, and the quantum of compensation are matters to be negotiated directly between those parties.

The State will be a party to the ILUA as it is the party responsible for the ‘future acts’ under the Native Title Act 1993 (Cth) (NTA) and it is concerned with ensuring the State’s interests are protected and liability is minimised.

As the ILUA is to be negotiated by the proponent and Native Title Parties directly in line with State requirements, it is up to these parties to determine what native title is worth on the land in question, and how native title surrender or suppression is to be compensated e.g. whether it's land, business partnership share or monetary.

What is the difference between State–led vs proponent–led native title negotiations?

LTPIA projects will be proponent-led, which means that the responsibility for approvals and negotiations lie with proponents. DoL has developed guidelines and template Indigenous Land Use Agreements (ILUAs) for proponents to use when conducting their own native title negotiations.

The State will be a party to the ILUA, but will allow the proponent and Native Title Parties to conduct their own negotiations. As such, the responsibility for the timeframes will rest with the proponent. Likewise, liability for any costs, including compensation and also meeting the costs of Native Title Parties in regard to the negotiation, will be the responsibility of the proponent.

Where non-LTPIA proposals are State-led, the State would be the party conducting native title negotiations and obtaining approvals.

Why a three-year Option?

An Option Agreement (Option) is a contract between the proponent and the State and is not legal tenure. A memorial will be placed on the Crown title to highlight that an Option has been granted. Options provide the opportunity for proponents to test and examine their proposal, with the assurance that a lease or freehold title to the area of land can be secured if conditions within the Option are fulfilled within the three-year period. 

The ILUA must be negotiated and registered during the Option period. A three-year timeframe is proposed given that ILUAs take on average 18 months to negotiate and the registration process at the National Native Title Tribunal (a requirement under the NTA) takes approximately six months. The additional year is allowed to give extra time for the ILUA negotiations which may take longer than 18 months.

Other conditions that need to be addressed during the term of the Option before the Development Lease can be issued also include, but are not limited to:

  • Business Plan
  • Development Plan
  • Heritage Survey
  • Land Capability Report
  • Surveyed graphic (deposited plan), which is consistent with the registered ILUA map, once all conditions are met.
Why a four-year Development Lease?

The Development Lease requires land to be developed for irrigated agriculture within the term of the lease. A Development Plan and associated milestones will need to be submitted to and approved by the Minister for Lands and appended to the lease.

Using information from other projects, four years is considered sufficient time for a proponent to meet all development milestones specified in the Development Plans.

How do I gain tenure (leasehold or freehold)?

Granting of a long-term lease or freehold tenure is subject to:

  • All statutory approvals applying to any tenure change, such as approval from the Minister for Mines under Section 16(3) of the Mining Act 1978.
  • Surrender of native title under the NTA for freehold tenure; surrender or suppression of native title for long-term leases.
  • Standard referrals by DoL, a process that is designed to identify if the subject land is of strategic or other significance and if there is a future use or existing circumstance that needs to be protected – i.e. if the State needs to retain control of a site through long-term leasehold.
  • Outcomes from DoL’s referral process to address and identify potential issues including contamination, land-use compatibility and environmental values.
  • The advice of the Pastoral Lands Board – that considers the impact of the proposal on the remaining portion of the pastoral lease and the context of the land-use mosaic in the region.
  • The approval of the Minister for Lands, and Cabinet, as all proposals will be submitted to Cabinet for approval.
  • A proponent satisfying all conditions of the Option and Development Lease.
  • The ILUA being registered with the National Native Title Tribunal during the three-year Option.
Leasehold vs Freehold: Why offer 49-year lease?

This is offered because:

  • Freehold is the highest form of tenure.
  • After satisfying conditions of the Option and Development Lease, a long-term lease under Section 79 of the LAA will be granted.
  • The term of the long-term lease is proposed to be 49 years giving the lessee more secure tenure. 49 years has been proposed as a sufficient timeframe to allow for investment security.
  • It is anticipated that freehold may be preferred by some proponents, given the risk, time and cost implications of tenure change and irrigated agricultural development. However, it is recommended that proponents give serious consideration to the implications of a long-term lease should other factors restrict the State’s ability to grant freehold title.
  • In assessing the feasibility of each proposal, DoL considers the implications of all interests, including native title; pastoral (lessee); mining, petroleum and geothermal and environmental – any of these may be potential barriers to granting of freehold tenure.
  • Section 89 of the LAA prevents direct conversion of a whole pastoral lease to freehold.
  • Tenure of long-term lease, as opposed to freehold, can reduce up-front capital costs for proponents in the early stages of development.
What if projects are unsuccessful?

The Option, Development Lease and long-term lease will all include conditions for the return of land to its prior state, that is the land will be rehabilitated by the proponent and returned to its original state - remediation provisions will be included in the leases. If the Development Lease or long-term lease is surrendered the land will revert to the Crown and become unallocated Crown land.

If the conditions of the Development Lease are not met, the lease may come to an end by expiry or forfeiture. After terminating the Development Lease, the State reserves the right to:

  • Offer the land for development via public release process
  • Make a direct offer to other interested parties
  • If the land was part of a Pastoral Lease, return the land to the former Pastoral Lease.

The State will not be liable for any costs incurred by proponents of unsuccessful projects.

Tractor image supplied by Nathan Dyer

Back Tenure Stage

Page updated 11/07/2016

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