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The arbitration process for access to land

​​​​​​​The Land Access Framework requires landholders and explorers to negotiate in good faith to try and reach an agreement on the terms of a land access arrangement.

If the explorer wants to access land for exploration then the explorer must first negotiate a land access arrangement with the landholder. If an access arrangement is agreed, exploration can commence as long as the terms of the access arrangement are met.

If an access arrangement cannot be agreed, and the explorer chooses to pursue land access, then the law provides for a process of mediation and potentially arbitration. Most land access arrangements are successfully negotiated without the need for mediation or arbitration.

This process is shown in the diagram below.

Land access arbitration process

The NSW Government has released a document that details the process of dispute resolution through mediation and arbitration. View the Land Access Arbitration Procedure (PDF, 1.18 MB). All parties, including the arbitrator, must follow the approved procedures unless they agree otherwise.


Mediation is a dispute resolution process where the arbitrator, who is an impartial third party, tries to facilitate an agreement between the parties by encouraging the landholder and the explorer to find solutions based on their mutual interests.

Appointment of an arbitrator

If the parties are unable to agree to a land access arrangement within 28 days of the landholder receiving the notice of intent, the explorer can make a written request to the landholder seeking agreement to appoint an arbitrator.

If, after a further 28 days following the landholder’s receipt of the request to seek agreement to appointing an arbitrator, the parties are unable to agree on the appointment of an arbitrator, either party can apply to Mining, Exploration and Geoscience (MEG) to appoint an arbitrator from the Arbitration Panel. Download the AD1 Application to appoint an arbitrator form under the General Administrative tab on the Mining Act 1992 forms page.

There are strict rules regarding the serving of notices under the mediation and arbitration procedure. If a notice is sent by mail, the date of receipt is 7 working days after the notice was posted, unless there is evidence the notice was delivered earlier. The 28 days starts from the day after a posted notice is received. Explorers should keep all records and evidence of postage and receipt.

Notices can be sent by email, subject to the express consent of all parties. More information about serving notices by email can be found in the Land Access Arbitration Procedure (PDF, 1.18 MB).

The Arbitration Panel

The Minister for Regional NSW appoints the members of the Arbitration Panel.

A person is eligible for appointment as a member of the arbitration panel if they:

  • are an accredited mediator under the National Mediator Accreditation System, or hold practitioner or advanced practitioner membership, with LEADR and IAMA
  • have extensive agricultural or resources industry experience or are an Australian legal practitioner of at least 7 years with extensive litigation experience (in the opinion of the Minister), and
  • have extensive arbitration experience (in the opinion of the Minister).

Members of the Arbitration Panel are appointed for up to 3 years. Arbitrators may be reappointed to the panel for more than one term.

Conduct of mediation

As soon as practical after being appointed, an arbitrator must conduct a mediation between the landholder and the explorer.

The landholder and the explorer are required to participate in the mediation process in good faith. Both parties are entitled to be heard during the mediation and are entitled to have legal representation.

A key advantage of mediation is that the power to make decisions relating to the dispute remains within the control of the parties. The arbitrator manages the mediation process but has no decision-making power at this stage. Mediation can also preserve a positive relationship between a landholder and a title holder.

Mediation ends if:

  • the parties reach an agreement on an access arrangement, or
  • the parties agree to terminate the mediation, or
  • either party terminates the mediation, by notice in writing, served on the other party and the arbitrator, or
  • the arbitrator terminates the mediation.


If mediation is unsuccessful in achieving agreement between the parties, the matter proceeds to arbitration. Arbitration is a more formal dispute resolution process where an arbitrator hears each party, examines and evaluates the facts and evidence, and makes a determination to resolve the dispute.

The arbitrator who acted as mediator in the unsuccessful mediation cannot be used for the arbitration stage unless all parties (including the arbitrator) give their written consent. If this consent is not given, the parties may agree to appoint a substitute arbitrator. If the parties cannot agree on a substitute arbitrator within 7 days of the mediation being terminated, MEG may appoint an arbitrator.

Conduct of arbitration

As soon as practical after unsuccessful mediation, the arbitrator must arrange a hearing and provide notice to both parties regarding the proposed time and place for the hearing. Both parties are entitled to be heard at the hearing and are entitled to have legal representation.

The parties are obliged to participate in the arbitration in good faith. The arbitrator may still conduct the hearing even if either of the parties fails to attend. The arbitrator must act according to equity, good conscience and the substantial merits of the case.

The arbitrator's costs

Where an arbitrator is appointed from the Arbitration Panel, the costs of the arbitrator are borne by the title holder. This includes a daily rate, travel, accommodation, meal and car allowances as well as remuneration including the cost of any support staff such as a typist or stenographer.

The Department of Regional NSW acts as an intermediary for payments to panel arbitrators.


The arbitrator is protected against legal action for any action directly authorised by the relevant Act provided the arbitrator acts in good faith.

The interim and final determinations

Within 14 days of the interim determination being served, either party can approach the arbitrator seeking a reconsideration of access arrangement or a variation to the draft access arrangement.

If the parties do not approach the arbitrator within this time, the interim determination becomes the arbitrator's final determination. If a review is requested, the arbitrator sets a time and place to continue the hearing. Once the process is completed, the arbitrator serves the written decision as a final determination.

Once the arbitrator's final determination is served, either party may apply to the Land and Environment Court within 14 days of the determination for a review of the determination. The application must be accompanied by a copy of the determination and access arrangement. The applicant must also provide a copy of the application to the other party in the determination. The arbitrator is not involved in this Land and Environment Court review process.

Arbitrated Access Arrangements

As soon as practicable after a final determination is made by an arbitrator, the explorer must provide MEG with a copy of the access arrangement.

Since 1 December 2016, a register of all final determinations is maintained by the department and is provided below.

Personal information (within the meaning of the Privacy and Personal Information Protection Act 1998) about an individual and confidential information is not included on the register.

Arbitrated Access Arrangements Register

Date Prospecting Title Number Prospecting Titleholder Location Name of Arbitrator Link to Land Access Arrangement
10 May 2023 EL 8947 Beach Patrol Developments Pty Ltd Cootamundra Malcolm Gracie EL 8947 – Land Access Arrangement  (PDF, 377.45 KB)
5 August 2018 EL 5785 Cobar Operations Pty Ltd Cobar Malcolm Gracie EL 5785 – Land Access Arrangement (PDF, 622.82 KB)
3 June 2019 EL 8104 Angel Jade Pty Ltd Weabonga Derek Minus EL 8104 – Land Access Arrangement (PDF, 2.66 MB)

Frequently asked questions

Who pays the cost of the mediation, arbitration and review stages?

The explorer must pay the reasonable costs of the landholder and the costs of the arbitrator in participating in the mediation and arbitration stages. The explorer must also pay the reasonable costs of the landholder participating in a review of a determination by the LEC.