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Planning and development

22 Sep 2016 - 15:19 | Version 10 |

Contributed by DavidMorris and current to 1 May 2016

The use and development of land is regulated by two statutory schemes, the first related to planning and the second to environmental impact assessment.

Planning, formerly known as town planning or urban planning, is the process whereby land is allocated to particular purposes according to an orderly scheme and decisions are made about what development is permitted.

Environmental impact assessment is a process for assessing the likely environmental impacts of major developments to try to minimise environmental damage by imposing conditions on development or preventing it altogether.

Planning

Planning laws

Land use planning and development in the Northern Territory is regulated by the following schemes:
  • The Northern Territory Planning Act 1999 (NT) (PA) and Planning Regulations 2005 (NT) (PR)
  • The Northern Territory Planning Scheme (NTPS), and
  • Development permits and exceptional permits.
Planning in the NT is the responsibility of the NT Government, not local government. The administration of planning is the responsibility of the Department of Lands, Planning and the Environment.

What is development?

As defined at s 3 of the PA, development refers to an activity that involves:
  • The establishment of a use, or a change in the use of land
  • A subdivision or consolidation of the land, or
  • Carrying out works such as excavation or land-filling, clearing of native vegetation, constructing a building, constructing or upgrading roads and drains. Works exclude mining or agriculture.

When does the Planning Act apply?

The Planning Act sets out procedures for making development applications, amending the planning scheme, appeals of decisions about development applications, and enforcement where the PA is breached.

The PA regulates the use and development of land in the Northern Territory through the NTPS. The NTPS sets out how land can be used and developed through applying different zones to land.

The Northern Territory Planning Scheme

The NTPS is a statutory document that sets out planning objectives, zone tables for zoned land, area plans and detailed guidelines for land use planning and development. Land can only be used and developed in the ways set out in the NTPS.

There are different types of zones. The zone sets out the controls for use and development of the land, for example, the restrictions on clearing native vegetative or subdividing land; land zoned as residential zone should be used for primarily residential purposes. If land is not zoned, the NTPS only applies to subdivision of land and clearing native vegetation over 1 hectare.

Zone maps in the NTPS set out how land is zoned, and zone tables set out whether or not development consent is required. They are accessible at the Department of Lands, Planning and Environment website: https://dlpe.nt.gov.au/
Zoned land

The NTPS zones land in the NT to control the use and development of land in that zone. The zones will indicate what uses and development are allowed and prohibited.

The NTPS establishes four categories of land use. These are:
  1. Permitted uses - which are allowed in the zone without the consent of the consent authority
  2. Self-assessable
  3. Permissible only with the consent of the consent authority
  4. Prohibited in a particular zone.
Unzoned land

Most land in the NT is not zoned, although such land tends to be those areas that are sparsely populated. Land use controls apply to some unzoned land in the NT in the following circumstances:
  1. Land within 500m of a designated road in certain circumstances

  2. Subdivision of land

  3. The PA applies to removal of native vegetation in excess of 1 ha of native vegetation where no other land applies to that area.

Who makes decisions under the Planning Act?

The 'consent authority' makes decisions on development applications. The consent authority is either the Minister for Lands and Planning, or the Development Consent Authority.

Under s 82 of the Planning Act, the Development Consent Authority is established. The Development Consent Authority is the relevant consent authority if the land subject to development is within one of these seven divisions:
  • Alice Springs division area
  • Batchelor division area
  • Darwin division area
  • Katherine division area
  • Palmerston division area
  • Tennant creek division area
Outside these areas, the Minister for Lands and Planning is the relevant consent authority. In addition, the Minister makes decisions regarding amendments to the planning scheme and granting exceptional development permits. When these kinds of decisions are made, the Minister is not acting in a 'consent authority' role.

Local councils in the NT do not have any power to regulate land use planning. However, Councils must be notified of development (referred to as 'proposals') under the PA.

As detailed above, the Development Consent Authority has a division for each area of administration. Maps of these divisions are available at the Development Consent Website: https://dlpe.nt.gov.au/boards-committees-and-authorities/development-consent-authority

The Development Consent Authority has a chairperson and members appointed by the Minister for Lands and Planning. In each division, the members include local council representatives and two members from the community. Community members must be nominated by the local council in the relevant division and all members serve a two year term of office. Nominations are usually advertised in the NT News when they become vacant. The Development Consent Authority holds meetings once a month to make decisions on development applications, planning scheme amendments and exceptional development permits. The meetings are open to the public and minutes are available at the Development Consent Authority website: https://dlpe.nt.gov.au/boards-committees-and-authorities/development-consent-authority

The Development Consent Authority must follow any 'direction' given to it by the Minister for Lands and Planning. This applies to a Minister's direction "generally or in respect of a particular matter". The Minister cannot give a direction regarding determination of a particular development application or regarding any report or recommendation prepared by the Development Consent Authority under the PA.

The Development Consent Authority has a function as a 'reporting body' on planning scheme amendments and exceptional development permits. The Development Consent Authority receives written submissions, conducts a hearing into the matter and provides a report to the Minister for Lands and Planning regarding amendments to the NTPS (including rezoning applications) and exceptional development permits.

Under s 84(2) of the PA, the Development Consent Authority has wide powers that are 'necessary, convenient or incidental to' performing its functions or exercising its powers.

The Development Consent Authority may:
  1. Delegate any of its powers and functions under the PA to an employee in the NT Government department (referred to as an employee defined in the Public Sector Employment and Management Act), and
  2. Delegate any of its powers and functions under the Planning Act to one of its members.

The NT Planning Commission

Amendments to the PA in 2012 established the Northern Territory Planning Commission, an independent statutory authority. The NT Planning Commission develops strategic plans and policies and advises on significant development proposals. It comments on matters relating to transport and infrastructure planning and integrated land use with the view to deliver sustainable and financially viable outcomes for the community.

The NT Planning Commission comprises of seven members:
  • A chairman
  • Chairpersons of the Development Consent Authority, Heritage Council and NT Environment Protection Authority
  • A representative of the Local Government Association
  • Up to five additional members with qualifications and expertise, as appointed by the Minister for up to two years.
For more information about the NT Planning Commission (including information regarding its projects, news and publications), please refer to its website: https://dlpe.nt.gov.au/boards-committees-and-authorities/development-consent-authority

Development applications

It is possible to make a development application online, at the Department of Lands, Planning and the Environment Website: https://nt.gov.au/property/building-and-development/development-one-stop-shop-applications-and-processes

In addition, the Development One Stop Shop allows developers and the general public to access information regarding pre-application processes and planning notices - including current applications, links to submission applications and Proposed Planning Scheme Amendments: https://nt.gov.au/property/building-and-development/development-one-stop-shop-applications-and-processes

Applications to make a planning scheme amendment

A person may make a request in writing to the Minister for Lands and Planning for a planning scheme amendment. Fees apply to the lodgement and advertisement of a planning scheme amendment which are published on the website of the Department of Lands and Planning. The Minister has the power to exercise their discretion to waive the fees.

Once the Minister for Lands and Planning has received an application for a planning scheme amendment, the Minister may do one of the following:
  • If the proposal is 'not so significant' that it would require exhibition, decide to amend the planning scheme and publish a notice in the NT Government Gazette that the Minister has amended the planning scheme and then make available the written reasons for the Minister's decision
  • Decide to continue considering the planning scheme amendment by placing it on public exhibition or
  • Refuse to grant the planning scheme amendment.
In circumstances where the Planning Commission prepares an integrated strategic plan, guideline or set of assessment criteria that affects the NT Planning Scheme, the Minister is to review such activities as if they were a request for a planning scheme amendment using the same procedure outlined in this chapter.

Public exhibition of planning scheme amendments

If the Minister decides to place the planning scheme amendment on public exhibition, the proposal is exhibited for a minimum of 28 days starting on the day the notice is first published in the newspaper. The Minister must also request the applicant place a notice on the land to which the planning scheme amendment relates advising the public of the details of the proposal for the entire 28 day period. The planning notices for planning scheme amendments are available from the Department of Lands, Planning and Environment website at: https://nt.gov.au/property/building-and-development/development-one-stop-shop-applications-and-processes http://www.lands.nt.gov.au/planning/onestopshop

Hearing of a planning scheme amendment

The reporting body must conduct a hearing to consider any submissions and invite all persons who made submissions to appear before it. The reporting body is the Development Consent Authority when the proposal is within one of its divisional areas. The Minister may also appoint the Development Consent Authority to be the reporting body when the proposal is outside one of the divisional areas.

Any hearing must be conducted with a minimum of formality and in a "manner that ensures procedural fairness".

The hearing is an opportunity to present your argument in person to the Development Consent Authority (or reporting body). The hearing usually takes place at one of the monthly meetings of the Development Consent Authority.

The Minister may issue a written request to the Development Consent Authority (or reporting body) to "carry out" consultation with certain persons, and the manner in which those persons will be consulted. Such a request may include consultation with the Northern Territory Environment Protection Agency.

Following the hearing into any submissions received or consultation required to be carried out by the Minister, the Development Consent Authority (or reporting body) must provide a written report about issues raised in the submissions, the issues raised at the hearing and during any consultation and "any other matters" the reporting body consider the Minister "should" take into account when considering the proposal. The reporting body then provides the report to the Minister.

The Minister may also request any other person or body to provide a written report to the Minister about relevant matters regarding the proposal or anything referred to in the reporting body's report.

Decision on a planning scheme amendment

The Minister is the decision-maker regarding planning scheme amendments. After receiving a report from the Development Consent Authority, the Minister may then amend the Northern Territory Planning Scheme, alter the proposal or refuse to amend the planning scheme. The Minister must publish a notice in the Northern Territory Government Gazette stating that:
  • the Minister has amended the planning scheme
  • the number or title given to the planning scheme amendment
  • the place where copies of the planning scheme amendment are available for purchase or inspection.
The planning scheme amendment commences on the date it is published in the Gazette. The Minister's written reasons for deciding whether to approve or refuse the planning scheme amendment must be made available for purchase or inspection by the public.

Appeal rights - amending a planning scheme

There is no right to appeal a decision made by the Minister to either amend or refuse to amend the planning scheme. However, if you believe the Minister or the reporting body has not complied with the procedure for amending the planning scheme, a judicial review of the decision may be possible.

Appeal rights - exceptional development permits

There is no right to appeal a decision made by the Minister to either grant or refuse to grant an exceptional development permit. However, if you believe the Minister or the reporting body has not complied with the procedure for determining the exceptional development permit, a judicial review of the decision may be possible.

Making a submission in response to a development application

The public must be notified of development applications (DA) and any person may make a written submission in response to the development application. These submissions must be made within 14 days of the notification being given. A person who has made a submission may be invited to attend the DCA hearing to give evidence in relation to the DA. Submissions must be made in writing.

Submissions and community support are an imperative if a development proposal is not environmentally sound or will adversely affect the amenity of property. Further, making a submission gives further rights in relation to the application. You have a right to be heard at the hearing and you have a right to appeal, if the decision gives rise to appeal rights.

If you write a submission, you should have regard to the factors that are generally considered when making a determination about an application. There are a significant number of factors that will be had regard to, which are set out at s 51 of the PA. They include, but are not limited to:
  • Compliance with the planning scheme
  • The merits of the proposal
  • The capability of the land
  • The effect of the development on the land, other land, public facilities, utilities and infrastructure, and
  • The public interest.
Where possible, when writing your submission, refer to s 51 of the PA and address any relevant matters to strengthen your application. Networking with neighbours, community groups and experts in environmental issues may also maximise the number of submissions put forward and the strength of the submissions.

Ensure your submission includes as much relevant and detailed information as possible. Support your assertions with references to scientific facts or other data that you may have collected. Dispute assertions of the application that you know are either incorrect, or based on faulty data and reasoning. Suggest conditions that should be applied to the approval permit if the application is approved. Suggested conditions should ameliorate adverse impacts of the development. Make sure that you include your name and contact details and keep a copy of your submission for your own records.

Assessing environmental impact

NT legislation

The Environmental Assessment Act 1982 (NT) (EAA) is modelled on the Commonwealth Government's Environment Protection (Impact of Proposals) Act 1974, now repealed. Like the Commonwealth legislation, the EAA sets out the financial provisions regarding the process of environmental impact assessment in the Environmental Assessment Administrative Procedures (EAAP). The EAA was significantly amended in 1994. Amendments to the EAAP followed in 1995.

In summary, the EAA and the AP set out:
  • the types of proposals to which the EAA applies;
  • the powers of the Minister for the Environment and the Northern Territory Environmental Protection Agency (NTEPA);
  • the arrangements for public involvement in the assessment process; and
  • the provisions for recommending the environmental conditions that apply to approvals.

What types of proposals are subject to environmental assessment?

The EAA applies to a very wide range of activities carried out by NT Government departments and agencies, and to proposals from private individuals and companies. However, the EAA only applies to matters that affect the environment to a significant extent. In practice, the EAA is only applied to major development proposals, such as mines, large tourist or housing developments, marinas and industrial developments. The Northern Territory Environmental Protection Agency decides which proposal is to be subjected to the assessment procedures set out under the Act and the Administrative Procedures.

Triggering the process

The assessment process is only applied if a Minister responsible ("the responsible Minister") for the approval of a project notifies the NT EPA of the proposed action, identifying the proponent; that is, the person, organisation or agency responsible for its development and execution (see Environmental Assessment Administrative Procedures (NT), cl. 6). The assessment process is triggered if the NT EPA believes a project may have a significant effect on the environment.

If a responsible Minister doesn't notify the NT EPA about a proposed action, the NT EPA can still decide that a matter should be notified and thereby trigger the environmental assessment process (see Environmental Assessment Administrative Procedures (NT), cl 7).

Drafting the EIS and PER

Under the EAAP, the NT EPA then has the power to order and direct the preparation of a draft environmental impact statement (EIS) or a public environment report (PER). A PER covers minor environmental matters, is prepared by the proponent and is available for public review for a maximum of four weeks. An EIS is more comprehensive and covers more significant environmental issues. An EIA must be available for public comment for a minimum of four weeks and is often available for three months or more.

If an EIS or PER is required, guidelines that describe the matters that must be dealt with in these documents are set down by the NT EPA. The guidelines are publicised and invitations for submissions are made. The public may comment on the scope and integrity of the guidelines within 14 days of their publication.

Following these guidelines, the proponent must then prepare the PER or EIS, often employing specialist consultants to do the work.

Public review

Except in rare cases where there is a need to retain confidentiality, such as for commercial or security reasons, the EIS or PER is made available for public comment. The draft EIS or PER is notified in the NT News. The advertisement will contain details of where the document can be purchased or read, an address where comments can be forwarded and the closing dates for receipt of comments. Members of the public have a minimum of 28 days to review and comment. Copies of all public comments are forwarded to the proponent, together with comments from government departments and agencies (see Environmental Assessment Administrative Procedures (NT), cl 9).

The breadth of public consultation depends on whether the assessment is a PER or EIS. Comment is usually sought in the form of written submissions or verbally through public meetings.

Following public comment on a PER, the draft is revised by the Department. The proponent is required to incorporate the public comments on an EIS into a supplementary document. Both an EIS, with its supplementary document, and the revised PER are submitted to the NT EPA (see Environmental Assessment Administrative Procedures (NT), cl 12).

PER assessment

The department assesses a PER in the light of comments submitted during the public review period and prepares an assessment report for the Environment Minister. An assessment report includes recommendations or suggestions. The proponent is not required to produce a revised or final PER (see Environmental Assessment Administrative Procedures, cl 11).

EIS assessment

An EIS is assessed by the NT EPA (see Environmental Assessment Administrative Procedures, cl 14). The NT EPA can request or engage individuals or organisations to help with an assessment. An assessment must be completed within 35 days from the date it was received.

An assessment forms the basis of the comments and recommendations made by the NT EPA to the responsible Minister, who then decides whether the development should proceed and, if so, under what conditions. The comments and recommendations of the NT EPA are known as the assessment report and are available to the public (see Environmental Assessment Administrative Procedures, cl 14).

In line with the Environmental Assessment Administrative Procedures, a public register has been established. It contains a record of each proposed action where the Minister has ordered that an EIS or PER be prepared, and information on outcomes of those projects formally assessed.

The Environmental Assessment Administrative Procedures also contain provisions that address a situation where a proponent, who has been required to prepare an EIS or PER, alters a proposed development prior to or during execution (see Environmental Assessment Administrative Procedures, cl 14A).

As a development is proceeding, or after its completion, the NT EPA can review the effectiveness of safeguards and conditions applied to it, and can make further comments and recommendations to the responsible Minister (see Environmental Assessment Administrative Procedures, cl 15).

Commonwealth legislation

Environmental impact assessment at the Commonwealth level is provided for by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act).The EPBC Act makes the Commonwealth Government responsible for assessing and approving major development proposals that are likely to have a significant impact on seven specified matters of national environmental significance, as well as activities of the Commonwealth and activities carried out on Commonwealth land.

The seven matters of national environmental significance that trigger an assessment are:
  1. The World Heritage values of a declared World Heritage property
  2. The ecological character of a declared Ramsar wetland
  3. Listed threatened species and ecological communities
  4. Listed migratory species
  5. Nuclear actions
  6. Commonwealth marine areas
  7. A water resource, in relation to coal seam gas development and large coal mining development. The EPBC Act creates offences and provides civil penalties for taking an action (broadly defined) that has, will have or is likely to have a significant impact on one of these six matters. However, the Minister for Environment can approve any action that would without this approval be an offence.

The objectives of the EPBC Act include:
  • Providing protection of the environment, especially matters of national environmental significance
  • Conserving Australia's biodiversity
  • Protect biodiversity internationally by controlling the international movement of wildlife
  • Provide a streamlined approach to environmental approvals and assessment pertaining matters of national environmental significance
  • Protect World and National Heritage, and
  • Promote ecological sustainable development.

When does the EPBC Act apply?

The EPBC Act applies to anyone whose activities may have a significant impact on a protected environmental matter. Where an activity might have a significant impact on a nationally protected matter, the project proposal must be submitted, or 'referred' to the Environmental Minister who will then assess whether the project needs to be subjected to the Commonwealth assessment process.

What happens after a referral?

The referral is publicised on the Department of the Environment website and the public is welcomed to comment on project proposals. The Environment Minister or a delegate to the department will then make a 'referral decision'; that is, decide whether or not further assessment is needed.

The project proposal will fall into one of the following categories:
  1. Controlled action: The activity needs further assessment at a Commonwealth level, as the project proposed will significantly impact a nationally projected matter. Further discussion of controlled actions follows below.
  2. Not controlled action, particular manner: The activity does not need further assessment, but certain restrictions may be placed on the way in which development takes place and the proposal must be carried out in the prescribed way.
  3. Not controlled action: The activity will not have a significant impact on nationally protected measures, therefore does not need further assessment.
  4. Action clearly unacceptable: The activity cannot proceed, as it will impact unacceptably on nationally protected matters.

Controlled Actions

If a proposed action significantly impacts National Heritage values, or a National Heritage place, it will give rise to a controlled action. A significant impact occurs if there is a real chance or possibility of causing one or more of the National Heritage values to be:
  • Lost
  • Degraded or damaged, or
  • Notably altered, modified, obscured or diminished. Following, a controlled action requires assessment under the EPBC Act. Section 80 of the EPBC Act summarises the methods of assessment that the Minister may choose as the following:
(a) an accredited assessment process
(aa) an assessment on referral information
(b) an assessment on preliminary documentation
(c) a public environment report (PER)
(d) an environmental impact statement (EIS)
(e) a public inquiry.

An assessment on referral information requires no further information, and is not open to public comment. Assessment on preliminary documentation requires further documentation as specified by the assessing Minister and will be open for public comment. Both PER and EIS require the proponent to provide information as specified by the EPBC Act and potentially information specified by the assessing Minister. Both PER and EIS are open to public comment.

Making a public comment

Referrals open to public comment will be open for 10 business days. It is important that the EPBC Act number and proposal title is included in your submission. Public comments are an important part of the assessment process. Where a proposed project is likely to significantly implicate the environment, community involvement and large number of public comments is integral.

Include a statement that clearly specifies whether the proposed project will implicate a matter of national significances, and how it will do so. Include facts, data and expert's opinions in your public comment to substantiate your claim. More information regarding public comments is available at the Department of the Environment website: www.environment.gov.au/epbc/public-notices/assessment-help#referrals

Bilateral agreement scheme

Under s 45 of the EPBC Act, a bilateral agreement exists between the Commonwealth and the NT Government. The effect of the bilateral agreement is that certain actions are not required for assessment under Part 8 of the EPBC Act if the action falls within a certain class. In addition, in situations that the Commonwealth Minister deems to be appropriate, additional actions not specified in the bilateral agreement could be exempt from Commonwealth assessment.

The bilateral agreement allows the Commonwealth Minister for the Environment to agree that the matters of national environmental significance be assessed by the NT government in accordance with the bilateral agreement. A form for environment assessment takes place under the EAA and the EAAP using what is called 'modified procedures'.

However, the Commonwealth Minister for the Environment is still responsible for making decisions about whether or not a grant approval for the proposed actions that impact matters of national environmental significance. Therefore, where the bilateral agreement is applied, the assessment is completed at a NT government level but the approval for actions impacting environmental significance is still done at a Commonwealth government level.

Challenging decisions made under the EPBC Act

The decision of the Minister for the Environment that an action is not a controlled action or to approve a controlled action can only be challenged through judicial review.

The EPBC Act sets out 'persons aggrieved' who are able to apply for a judicial review of a decision by the Minister. These are:
  • In the case of an individual, an individual is an Australian citizen or a person who normally resides in Australia or an external Territory and who at any time in the previous 2 years has engaged in activities in Australia or an external Territory to protect, conserve or research the environment.
  • In the case of an organisation, an organisation or association is incorporated or otherwise established in Australia or an external Territory; and at any time in the previous 2 years has engaged in activities in Australian or an external Territory to protect, conserve or research the environment; and at the time of the decision, the objects and purposes of the organisation or association included to protect, conserve or research the environment.

Environmental controls over mining

Northern Territory mining laws are designed to encourage mining companies to explore and mine. This is because resources on and under the ground in the Northern Territory are owned by the Crown (meaning the Northern Territory Government) not the people who own or occupy land. The Northern Territory government receives money in the form of royalties from mining companies who mine resources.

The best way to ascertain which laws apply in which circumstances, is to first evaluate what type of resource is being mined and second, what kind of land the mining is taking place on and the interest groups involved with this land.

What are mining laws?

Mining of minerals and extractive minerals (for example coal, uranium, sand, soil, gravel and rocks) is controlled by two main laws. These are the Northern Territory Mining Titles Act 2010 (NT) (MTA) and the Northern Territory Mining Management Act 2001 (NT) (MMA). The MTA is the law under which exploration and mining activities of these resources are approved. Once approved, the MMA controls how exploration and mining activities are conducted and what obligations mining companies have to protect the environment.

Uranium mining is regulated under both Northern Territory mining laws and under the Commonwealth Atomic Energy Act.

Oil and gas mining (called petroleum mining) on land and in inland waters is controlled under the Northern Territory Petroleum Act 1984. Other laws control petroleum mining at sea.

Pipelines for gas and oil are regulated under the Northern Territory Energy Pipelines Act.

Who regulates mining?

The Northern Territory Minister for Mines and Energy is responsible for approving exploration and mining operations. The Northern Territory Department of Mines and Energy is responsible for administering mining laws and for environmental regulation of exploration and mining on mining sites.

Exploration and mining of offshore petroleum in Commonwealth waters, which lie beyond 3 nautical miles of the Northern Territory coast, are jointly approved by the Northern Territory Minister for Mines and Energy and the Commonwealth Minister for Resources and Energy. There is also a separate regulator responsible for environmental management of offshore petroleum and pipelines in Commonwealth waters. This is the National Offshore Petroleum Safety and Environment Management Authority.

Objector's rights

Objecting and making submissions is a very important step in stopping mining activities that are likely to have adverse environmental impacts or to seek better environmental outcomes. Even if objections do not stop mining activities, they could persuade the Minister for Mines and Energy to put conditions on the approval that limit how the mining is done to reduce adverse impacts on the environment. If the Minister for Mines and Energy fails to properly consider objections and submissions, there may be a right to ask the Supreme Court of the Northern Territory to review the Minister's decision.

There are different rights for people to object to proposed mining and exploration activities depending on what resource is being mined and depending on what type of land will be affected. For example, for proposed exploration and mining operations for minerals and extractive minerals:
  • landowners can object
  • any other people, such as members of the public or environment groups can make submissions.
For exploration of petroleum:
  • people who have an estate or interest land in the exploration licence area can object
  • people who have an estate or interest land on adjoining land have the right to object
  • there is no right for any other people to object.
Objection rights may vary depending on the mining or exploration proposed. In addition, certain people may also have the power to refuse consent to a mining company to explore or mine. See below for a discussion of different kinds of mining, and their corresponding objector's rights.

Appeal rights

There are no rights in any of the mining laws for any third parties (for example objectors, submitters, landowners, members of the public) to apply for a review of the merits of a decision to grant a mining approval (often called an appeal).

The only legal way for third parties to challenge an exploration or mining approval is to apply to the Supreme Court of the Northern Territory for a review of the Minister of Resources' decision. This type of legal case is called judicial review. It is about whether or not the decision made by the Minister for Mines and Energy is legally valid. It is not about whether the decision is good or bad or could be improved.

The Northern Territory Civil and Administrative Tribunal

In 2015, the Northern Territory Civil and Administrative Tribunal (NTCAT) superseded the Lands, Planning and Mining Tribunal. NTCAT has the power to do the following:
  1. It has the power to make binding decisions about certain types of disputes that are referred to it. For example, it has the power to decide whether or not someone is unreasonably withholding consent from a person who wants to conduct preliminary exploration;
  2. It also has the power to make recommendations and hold hearings on certain matters. For example, the Tribunal can hold a hearing and make a recommendation if the Minister for Mines and Energy refers an application for exploration or mining to the Tribunal. This is an optional process that the Minister for Mines and Energy may choose to do before they decide whether or not to grant a mineral title. The Tribunal's function is to be an independent body to hear the evidence and make recommendations to the Minister for Mines and Energy about whether the mineral title should be granted, and if so, on what conditions. People who are objecting to a proposal have a right to be parties to the Tribunal hearing. It is important to note that when the Tribunal makes its recommendation, the Minister for Mines and Energy may or may not follow the recommendation of the Tribunal when making his/her decision about whether or not to grant a mineral title.

The Tribunal can also hold a hearing and make a recommendation if a person who has a native title right or interest applies to the Tribunal in relation to an objection they have made about an exploration or mining application.

Dispute resolution

The Tribunal also has powers to resolve certain disputes about mining. Any person may apply to the Tribunal for a decision about a dispute relating to preliminary exploration, a mineral title, a title area, a proposed title area or fossicking. For example, the Tribunal can resolve disputes about:
  • the area, dimensions and boundaries of land being surveyed for a proposed title area or title area
  • the entry onto land to conduct preliminary exploration or fossicking, to conduct authorised activities under a mineral title or to construct, maintain and use infrastructure under an access authority
  • the use of a landowner's water by a person who is conducting preliminary exploration or fossicking or by the holder of a mineral title
  • the entry onto a title area by a person other than the holder of the title
  • contractual obligations relating to mineral titles
  • mineral rights interests

Concerns about mining laws and the environment

The obligations of mining companies to protect the environment are varied and depend on what resource is being mined. Whilst the different laws create criminal offences for certain types of environmental harm at mining sites, mining companies are allowed to cause a certain amount of harm to the environment if mining activities have been approved.

Mining can have adverse impacts on the environment. However, the Northern Territory does not have a strong regulatory regime for environment protection. This is because:
  • None of the mining laws in the Northern Territory include the principles of ecologically sustainable development.
  • Public participation in decision-making is very limited. Public notification of an application to explore or mine is limited to the newspaper. The rights to object depend on what resource is being mined and are limited to certain stages of exploration and mining. There are no rights under any laws for objectors to apply for the merits of a decision to grant an exploration or mining license.
  • At the stage that mining companies apply for an approval to explore or mine (called a mineral title), the Minister for Mines and Energy does not have to consider the environmental impacts of a proposal. The Minister for Mines and Energy is only required to consider the outcome of an environmental impact assessment (if any) when they decide whether or not to grant an Authorisation, which takes place later in the approval process. The public are not notified about Authorisations. There are no rights to make objections or submissions at the Authorisation stage, when environmental effects are being considered.
  • The regime for environment protection from mining activities is fragmented. Some mining activities are not subject to any environmental protection requirements,for example, fossicking on land. Some mining activities have only very limited environmental protection obligations. For example, petroleum mining on land is not subject to the MMA and so is only subject to limited environmental obligations and prosecution only in circumstances where significant environmental harm has been caused.

Water impacts

Exploration and mining activities have special rights that are not afforded to other types of development.

Mining companies have a right to use water in the title area and are not subject to water allocations under the Water Act 1992 (NT). The right to use water includes the right to take or divert water in the title area. It includes the right to sink a well or bore.

Environmental Assessment of mining activities

The laws that control if, when and how an environmental impact assessment takes place are separate from the exploration and mining approval process. The exploration and mining approval laws themselves do not have any requirement for there to be an assessment of environmental impacts before exploration or mining starts.

When is an environmental assessment needed?

For exploration and mining on land or within 3 nautical miles of the Northern Territory coast, environmental impact assessment of a proposal takes place only if the Northern Territory Minister for the Environment is of the opinion that the exploration or mining could have a "significant" environmental impact.

What is a significant environmental impact?

There are no laws that specifically define what a "significant" environmental impact is. However, the NT EPA has a list of the types of works that may require environmental assessment. These are:
  • Proposals which could affect areas of high conservation value, endangered species, including wetlands, coastline, marine, arid areas, estuaries, and areas containing important or unique flora and fauna communities
  • Proposals which could affect important historic, cultural, archaeological, scenic, scientific or educational sites
  • Proposals involving significant land disturbance, e.g. land clearing for agriculture or forestry; urban and industrial sites; dredging; large extractive industries; surface paving; transport facilities
  • Proposals involving resource extraction, e.g. drilling; mining; blasting
  • Proposals involving modification of natural regimes, e.g. alteration of groundwater hydrology; drainage patterns; fauna movement; vegetation patterns
  • Major engineering works, e.g. power stations; transmission lines; roadworks; bridges; dams and impoundments; irrigation works; recreational structures
  • Establishment of: major agro-industrial facilities, e.g. large piggeries; poultry farms; abattoirs; rendering plants; and manufacturing and industrial process, e.g. oil refining and cement plants
  • Proposals involving waste treatment and disposal, or have the potential to pollute e.g. ocean dumping; landfill; disposal of tailings, spoil and overburden; cooling water discharge; spray irrigation; liquid effluent discharge; stack and exhaust emissions
  • Proposals which are likely to have a major impact on the social environment of surrounding or nearby communities
  • Proposals which may involve a significant risk or hazard to public safety and the environment.
The Environment Protection Authority makes the decision about whether environmental impacts could be "significant". The Environment Protection Authority therefore has a lot of discretion about whether or not the environmental impacts of a proposed action should be assessed. Very few exploration and mining operations go through the formal environmental assessment process under the Environment Assessment Act.

If the proposal is not considered to have a significant impact, it is possible that no formal environmental impact assessment will take place. If no environmental impact assessment takes place, the Minister for Mines and Energy only has to consider environmental impacts before granting exploration and mining approvals in very limited situations.

When do national environmental laws apply?

Australia also has national environmental laws that require environmental assessment and approval of proposed actions that are likely to have a significant impact on matters of national environmental significance, such as nationally threatened species.

If the proposed mining activity is within the Northern Territory, the assessment may occur under Northern Territory environmental assessment laws according to a bilateral agreement between the Commonwealth and the Northern Territory government.

The Commonwealth Minister for the Environment must approve the proposed action before it can be undertaken. This is the case even if the assessment process occurs under Northern Territory environmental assessment laws.

Mining activities in Commonwealth waters, beyond 3 nautical miles of the Northern Territory coast, may require environmental impact assessment under Australia's national environmental laws if those activities are likely to have a significant impact on a matter of national environmental significance.

Australia's national environmental laws are the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 and the Environment Protection and Biodiversity Conservation Regulations, as discussed above.

What is the environmental impact assessment process for mining?

If there is an environmental impact assessment, the Northern Territory Environmental Assessment Act (EAA) and the Environmental Assessment Administrative Procedures (EAAP) are the laws that set out the legal process for environmental assessment of proposals.

The assessment process is:
  • The Minister of Mines and Energy must give the NT Environment Protection Authority written notice about the proposed exploration or mining as soon as practicable after they have been informed about it. The notice must tell the NT Environment Protection Authority about the proposed exploration or mining and the name and address of the mining company
  • The Minister for Mines and Energy must tell the Environment Protection Authority about a proposal when they are informed about the "formulation of a proposed action". A proposed action include:
  • The carrying out of works and other projects
  • The Making of, or the participation in the making of, decisions and recommendations
  • The formulation of proposals
  • The incurring of expenditure
  • The negotiation, operation and enforcement of agreements and arrangements (including agreements and arrangements with, and with authorities of, the Commonwealth, the States and other Territories).
If the Minister for Mines and Energy does not refer the proposed action, the NT Environment Protection Authority has the power to request that the Minister for Mines and Energy refers a proposed action to him or her.

The Department of Lands and Planning has an Memorandum of Understanding with the Department of Mines and Energy which sets out the situations in which the Department of Mines and Energy will refer proposed actions to the Environment Protection Authority. These are:
  • Projects where Commonwealth involvement is anticipated (e.g. uranium mining) or Commonwealth assessment is required
  • All petroleum development proposals
  • All pipeline construction projects that fall outside an existing pipeline corridor
  • Projects where the magnitude of production rate or a change of production rate exceeds 200 000 tonnes per annum of ore
  • Project which exceed 1 million tonnes extracted per annum of waste plus ore
  • Projects located within:
    • 1 km of a major river or coastline
    • 2 km of a gazetted town boundary or recognised regional community
    • National Parks, Marine Reserves, Conservation Reserves or areas of known environmental significance, excluding exploration activity on Exploration licenses
    • Mining projects where total disturbance exceeds 100 hectares
    • Energy or Geothermal projects where total disturbance exceeds 10 hectares, and
    • Projects where ground or surface water may be placed at significant risk
  • The Environment Protection Authority has to decide whether or not an environmental impact assessment is required. Environmental impact assessment of a proposal takes place only if the Environment Protection Authority is of the opinion that the exploration or mining could have a significant environmental impact
  • People have a right to participate in the environmental impact assessment process. See above for information about how to participate
  • When a mining company applies for a mineral title or mining Authorisation, or a petroleum exploration permit or mining approval, the Minister for Mines and Energy has been informed about a proposed action. The Minister must refer the proposed action to the NT Environment Protection Authority
  • At the end of the environmental impact assessment process, the Environment Protection Authority must provide its recommendations for the protection of the environment to the Minister for Mines and Energy
  • The Minister for Mines and Energy makes the decision to approve or refuse the proposed exploration or mining.

Mining for minerals and extractive minerals

The law in the NT divides mining for minerals into two types of mining: mining for minerals and mining for extractive metals. The following laws are applicable:
  1. The Northern Territory Mineral Titles Act 2010 (and the Mineral Titles Regulations) are the laws under which exploration and mining approvals are granted or refused.
  2. The Northern Territory Mining Management Act is the law that controls how mines are managed and what obligations there are for mining companies to protect the environment once an exploration or mining approval has been granted.

What are minerals?

  • Metals - for example, gold, copper, chromium, silver, manganese, iron, cobalt, nickel, zinc, mercury, platinum are metals
  • Uranium and thorium (both radioactive metals)
  • Inorganic elements or compounds (including inorganic carbonate compounds)
  • Organic carbonate compounds
  • Coal
  • Oil Shale
  • Lignite
  • Salt
  • Another substance prescribed by regulation but not:
    • An extractive mineral
    • Petroleum under the Petroleum Act
    • Another substance prescribed by regulation.

What are extractive minerals?

Extractive minerals are defined as:
  • Sand
  • Soil
  • Gravel
  • Rocks
  • Pear
  • Another substance prescribed by regulation.

Exploration

There are two types of mining exploration.
  1. Preliminary exploration - This is when a person may enter land to investigate whether or not there is potential to explore for minerals.
  2. Exploration under an exploration licence - This allows a person to explore for minerals and to conduct other activities linked to exploring.
There are different rights to object, or to refuse consent, to the two types of exploration.

Preliminary exploration

Preliminary exploration is controlled by the Mineral Titles Act and Mineral Titles Regulations. Preliminary exploration can include:
  • marking boundaries before a person makes an application for a mining approval
  • clearing vegetation and trees
  • removal of samples using hand-held tools
  • airborne surveys of land
  • examination of the geological characteristics of land
  • the person conducting the exploration using the landowner's water and staying overnight on the land.
The main environmental impact that preliminary exploration is likely to have is on vegetation and trees. This is because a person who is marking boundaries of an area before making an application for a mining approval must put a post or a pile of stones 1m high at the corner of the boundary areas. To do this, the person may need to clear vegetation along the boundary line between the corner markers to a width of 1m. The person is allowed to cut down immature trees. However, the person is not allowed to cut down mature trees. When a person is clearing a boundary line, they must do as little damage to the environment as practicable.
When is only notice required for preliminary exploration?

For certain types of interests in land, the miner is only required to give the occupier or owner of the land notice (telling the owner or occupier) that they intend to conduct preliminary exploration. The miner is not required to get the consent of the owner or occupier.

Notice only is required to be given to the following people:
  • People who have grazing licences, occupation licences or other types of licences on vacant Crown land
  • Occupiers of pastoral land
  • The native title holder for land where native title rights and interests exist.
If the occupier cannot be located, notice must be given to the landowner. The notice must be provided 14 days before the person is going to enter the land.

For certain types of interests in land, consent as well as notice is required from the landowner before a miner can come onto land to do preliminary exploration.

Who the landowner is will depend on the type of land interest. The term 'landowner' is defined by the Mineral Titles Act.

To conduct preliminary exploration, the miner must seek the written consent of the landowner:
  • Reserved land - the Minister
  • Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act - the Land Trust that holds the land
  • An Aboriginal community living area - the association that holds the land
  • Private land - the person recorded in the land register as the landowner
  • A park or reserve - the body responsible for the care, management and control of the park or reserve.
The Minister for Mines and Energy is responsible for deciding whether or not to grant consent to preliminary exploration on reserved land and for airborne surveys.

Consent from the landowner to preliminary exploration is only required in certain circumstances, discussed above.

A landowner can decide whether or not to grant consent to preliminary exploration. However, a landowner cannot 'unreasonably withhold consent'. A landowner can only reasonably withhold consent where the preliminary exploration would substantially interfere with the landowner's use of the land.

If the person who wants to do the preliminary exploration thinks that a landowner is withholding consent unreasonably, they can refer the dispute on consent to NTCAT. The Tribunal has the right to make a decision about whether withholding consent is reasonable or not.

If the landowner does consent, the landowner has the right to put reasonable conditions on the entry and use of the land.

If a landowner does not respond to a request for consent within 2 months, the landowner is taken to have given their consent to the preliminary exploration.

A person conducting preliminary exploration also needs to get consent from the landowner before using any water conserved by the landowner and must tell the landowner if they plan to stay overnight on the land. A landowner can refuse consent to use water conserved by them. In all cases, preliminary exploration is not allowed to take place within 200m of a building.

Yes, if a landowner has granted consent to preliminary exploration, the consent can be withdrawn if the landowner thinks that the person doing the preliminary exploration has broken the laws about preliminary exploration or if the exploration is substantially interfering with the landowner's use of the land.

Exploration

What are exploration licenses?

For minerals, there are 2 different types of exploration licences. These are:
  • A mineral exploration licence (called an EL in the Mineral Titles Act); and
  • A mineral exploration licence in retention (called an ELR in the Mineral Titles Act).
For extractive minerals, there is 1 type of exploration licence. This is an extractive mineral exploration licence (called an EMEL in the Mineral Titles Act). Exploration activities that cause 'substantial disturbance of the mining site' also require an approval from the Minister for Mines and Energy under the Mining Management Act called an Authorisation. The Authorisation is required before the miner can start the exploration.

If the exploration will not cause 'substantial disturbance' then the miner does not require an Authorisation before starting exploration.

What does an exploration licence allow a mining company to do?

A mineral exploration licence allows the holder of the licence to:
  • Occupy the area in the licence and to explore for minerals
  • The right to apply for a mineral lease.
A mineral exploration licence in retention allows the holder of the licence to:
  • Do the same thing as an exploration licence
  • Carry out studies and tests to assess the commercial viability of mining in an area
  • The right to apply for a mineral lease
An extractive mineral exploration licence allows the holder to:
  • Occupy the licence area and explore for extractive minerals
  • Conduct any other activities reasonably necessary for the exploration
  • The right to apply for an extractive mineral permit or lease.
Some exploration activities could have significant environmental impacts. For example holders of exploration licences or exploration licences in retention can:
  • Dig pits, trenches and holes, sink bores and tunnels
  • Extract and remove mineral samples for analysis
  • Drill and use other methods to determine the quality, quantity and extent of the mineral
  • enter and occupy land in the licence or approval area with people, equipment, and vehicles
  • use water - including to take or divert water, sink a bore or a well, for use in the exploration or mining and for domestic use for workers
  • use land outside the area and within the area to build an access road across any land that is the shortest route from the exploration site or mine to another road, a railway, an airstrip, the sea or a waterway
  • use land outside the licence area to build, maintain and use infrastructure for the exploration if the person who is conducting the exploration is granted an Access Authority.
People can also come onto your land to fossick without needing seek permission if:
  • an extractive mineral exploration licence has been granted for your land or
  • your land is included in a mineral exploration licence application or extractive mineral licence application.

Mining

There are 2 types of mining approvals to mine for minerals and they allow a mining company to do different things. These are:
  • mineral lease (called an ML in the Mineral Titles Act)
  • a mineral authority (called an MA in the Mineral Titles Act).
There are 3 types of mining approvals to mine for extractive minerals. These are:
  • extractive mineral lease (called an EML in the Mineral Titles Act)
  • extractive mineral permit (called an EMP in the Mineral Titles Act)
  • a mineral authority (called an MA in the Mineral Titles Act)
A mineral authority allows a mining company to mine for both minerals and extractive minerals.

Mining activities also require an approval from the Minister for Mines and Energy under the MMA, called an Authorisation. The Authorisation is required before the miner can start the mining activities.

What does a mining approval allow a mining company to do?

A mineral lease is an approval to mine for minerals and extractive minerals. It allows the lease holder to:
  • occupy the land
  • mine for minerals
  • explore for minerals in the title area
  • conduct other activities related to the mine, such as operate a treatment plant
  • treat tailings for example by having a tailings dam
  • store waste
  • process and refine minerals
  • use water - including to take or divert water, sink a bore or a well, for use in the exploration or mining and for domestic use for workers
  • enter and occupy land in the licence or approval area with people, equipment, and vehicles
  • use land outside the area and within the area to build an access road across any land that is the shortest route from the exploration site or mine to another road, a railway, an airstrip, the sea or a waterway
  • conduct tourist fossicking with mechanical equipment
  • use land outside the licence area to build, maintain and use infrastructure for the exploration if the person who is conducting the exploration is granted an Access Authority.
A mineral lease gives a mining company a lot of rights. Once a mining company has finished mining a part of land within the title area, it does not end the life of the mine. Because a mineral lease also approves exploration, this means that even when one part of a mining site is closed and is being rehabilitated, the company can start new exploration within the same title under the mineral lease. When mineral leases are granted, the Minister for Mines and Energy can grant them for any length of time they deem appropriate. The length of time that a mineral lease is granted for is based upon the mining company's predicted life expectancy of the mine. Mineral leases have historically been granted for up to 25 years, but the new Mineral Titles Act gives the Minister the power to grant mineral leases any length of time. A mineral lease can also be renewed and so this can mean that mines can operate for a long time.

An extractive mineral permit is an approval to mine for extractive minerals at the natural surface of the land only. It allows the permit holder to:
  • temporarily store and process minerals
  • remove extractive minerals
  • use water - including to take or divert water, sink a bore or a well, for use in the exploration or mining and for domestic use for workers
  • enter and occupy land in the licence or approval area with people, equipment, and vehicles
  • use land outside the area and within the area to build an access road across any land that is the shortest route from the exploration site or mine to another road, a railway, an airstrip, the sea or a waterway
  • use land outside the licence area to build, maintain and use infrastructure for the exploration if the person who is conducting the exploration is granted an Access Authority.
An extractive mineral lease is an approval to mine for extractive minerals. It allows the permit holder to:
  • process and remove extractive minerals
  • store waste and other material
  • use water - including to take or divert water, sink a bore or a well, for use in the exploration or mining and for domestic use for workers
  • enter and occupy land in the licence or approval area with people, equipment, and vehicles
  • use land outside the area and within the area to build an access road across any land that is the shortest route from the exploration site or mine to another road, a railway, an airstrip, the sea or a waterway
  • use land outside the licence area to build, maintain and use infrastructure for the exploration if the person who is conducting the exploration is granted an Access Authority.
A mineral authority is a special type of approval that applies on a type of land called general reserved land. More information about parks, wilderness areas and reserves is here. A mineral authority gives the holder of the authority the right to do the same things as they would be able to do under one of the exploration licences or one of the mining approvals explained above. The only differences are that:
  • the exploration or mining takes place on general reserved land.
  • the Minister for Mines and Energy has the power to decide whether or not to follow the standard procedures for telling people about an application for a mineral authority and letting people object.

Can a mining company apply to explore for one mineral and then explore or later mine for different minerals?

Yes. When exploration licences are granted they do not include information about the exact resource that the mining company proposes to explore for. This means that a mining company can plan to explore for one type of mineral and if it subsequently discovers another mineral within its mineral title area, it can conduct exploration for this under its exploration licence. The only limits that are imposed are that exploration for minerals must be done under an EL and exploration for extractive minerals must be done under an EMEL.

So it is possible that a mining company may conduct exploration for one type of mineral, but if it discovers another mineral during exploration and wishes to mine this, it will need to apply for a mineral lease allowing it to mine.

What is fossicking?

Fossicking is a type of mining involving searching for, collecting, extracting and removing limited amounts of rocks, minerals and crystals by digging by hand or using hand held implements, to a depth of up to one metre.

Fossicking does not require a mining approval except in 2 situations. These are:
  1. commercial fossicking where substantial amounts of minerals or extractive minerals are mined
  2. tourist fossicking with mechanical equipment.
For both commercial fossicking and for tourist fossicking using mechanical equipment a mineral lease is required.

Objections to mining

If people want to object to proposed exploration or mining, you can make an objection or a submission. The process for making an objection or submission is the same for all of the types of exploration licences and mining approvals (which are all called mineral titles).

The objection process

  1. A mining company applies to the Minister for Mines and Energy for an exploration licence or mining approval.

  2. Within 14 days, the mining company must notify landowners in the application area that an application has been made.

  3. The Minister for Mines and Energy gives "initial consideration" to the application. The Minister for Mines and Energy must be satisfied that the mining company has met the application criteria and can refuse an application at this stage. The necessary criteria for an application include that the applicant must have complied substantially with the conditions of any mineral title the company currently holds. The Minister for Mines and Energy can refuse an application if there is clear evidence that the applicant is not a fit and proper person to hold a mineral title.

  4. The Minister for Mines and Energy publishes a notice in a newspaper (usually the NT News) telling people that an application has been made. The notice will tell people what type of exploration licence or mining approval the application is for. It will tell people the land over which the exploration licence or mining approval is proposed to cover. Other than for landowners who have received a separate notice, the only way people will know about the proposal is by reading the newspaper.

  5. Certain people who are on the land which is covered by the application (i.e. where the exploration or mining is proposed to take place) can object by writing to the Minister for Mines and Energy within 30 days of the notice. The people who can object are called landowners in the Mineral Titles Act and are:

    • people who own private land and is recorded as being the owner in the Land Register
    • a lease holder of a pastoral lease under the Pastoral Land Act
    • a lease holder of a grazing licence or occupation licences or another types of licence granted under the Crown Lands Act or Special Purposes Leases Act
    • an Aboriginal Community Living Area Association
    • the Land Trust for any Aboriginal land
    • the holder of the native title for any native title land
    • the land manager for a park or reserve the Conservation Land Corporation.
  6. Any other members of the public, such as neighbours of the proposed site, members of the public, environment or community groups can make written submissions to the Minister for Mines and Energy within 30 days of the notice.
  7. The Minister for Mines and Energy gives the miner a copy of any objections or submissions. The miner then has a right to provide a response to the Minister.
  8. The Minister for Mines and Energy must consider any objections and submissions.
  9. If the application is for exploration or mining in a declared park or reserve, the Minister for Mines and Energy must consult with the Minister for Lands and Planning and must consider their opinion.
  10. If the application is for exploration or mining on Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act , the Minister cannot grant the exploration licence or mining approval unless they are satisfied that the permit, consent or agreement of Aboriginal owners of land has been obtained as required under the under the Aboriginal Land Rights (Northern Territory) Act .
  11. If the land in the application is land over which people have native title rights and interests, the Minister for Mines and Energy may grant a mineral title only if they are satisfied that all procedures under the Commonwealth Native Title Act 1993 have been followed.
    Before the Minister for Mines and Energy makes a decision they have the option to refer the application to the Northern Territory Civil and Administrative Tribunal. If an application is referred to the Tribunal, it can hold a hearing and make a recommendation to the Minister. People who are objecting to a proposal have the right to attend the Tribunal hearing and to present their views. However, the Minister for Mines and Energy does not have to follow the recommendation of the Tribunal when making a decision.
    The Minister for Mines and Energy makes a decision to grant or to refuse to grant the exploration licence or mining approval. The Minister for Mines and Energy may also decide to grant an exploration licence or mining approval for only part of the land.

Can I appeal the decision?

No. There are no rights for people who have made an objection or submission to apply for a review (often called an appeal) of the merits of the decision by the Minister for Mines and Energy to grant a mineral title.

The only legal way for third parties to challenge an exploration or mining approval is to apply to the Supreme Court of the Northern Territory for a review of the Minister for Mines and Energy's decision. This type of legal case is called judicial review. You should always seek independent legal advice before taking legal action because there is a risk that if you are unsuccessful you might have to pay the costs of the other parties' legal fees.

Consent is needed from certain people in these situations:
  • Consent from landowners to preliminary exploration on Aboriginal land, on Aboriginal community living area, on private land, in a park or reserve (see above)
  • Consent from the traditional Aboriginal owners in the form of a permit to enter onto Aboriginal Land
  • Consent from the traditional Aboriginal owners to exploration under the legal process in the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976. The traditional Aboriginal owners of Aboriginal land as defined by the Aboriginal Land Rights (Northern Territory) Act 1976 have a right to refuse consent to exploration on Aboriginal land
  • Consent from owners of Aboriginal land, private land and Aboriginal community living areas for the mining company to enter their land in order to construct, maintain and use infrastructure associated with conducting authorised activities under the mineral title. This type of consent is needed before the Minister for Mines and Energy can grant an Access Authority (see below)
  • Consent from landowners before a person can fossick on land
  • Consent from a landowner before a fossicker can use water conserved artificially by or for the occupier or landowner

Access authorities

An Access Authority is a type of approval related to exploration and mining. It allows a mining company to enter land outside the area in which they are allowed to explore or mine to construct, maintain and use infrastructure (such as roads) for the exploration and mining activities.

The Minister for Mines and Energy may only grant an Access Authority to a mining company if the following steps have been taken:
  • At least 14 days before making the application for the Access Authority, the title holder must:
  • The Minister for Mines and Energy must be satisfied that the infrastructure to be constructed is necessary for conducting the approved exploration or mining activities.
  • Give written notice of the intention to apply for the access authority to each landowner of the relevant land; and
  • Publish a notice of the intention in a newspaper circulating in the area in which the relevant land is situated; and
  • Get the consent of the landowners if the land is:
Owners of land must not unreasonably refuse to consent to the title holder's entry onto the land. The law does not say what unreasonable refusal of consent is. However, if a mining company thinks you are unreasonably refusing to give consent, it may apply to NCAT for a decision about whether the consent is reasonable. If the Tribunal determines that the refusal of consent is unreasonable, the person must grant consent.

A landowner does not have a right to apply for a review (sometimes called an appeal) of the decision of the Minister for Mines and Energy to grant an Access Authority.

What is an Authorisation?

If exploration (which would cause substantial disturbance of the mining site) or mining approval has been granted under the MTA, a mining company also needs to get an Authorisation from the Minister for Mines and Energy. An Authorisation is the approval under the MMA that gives the mining company the right to carry out the mining activities specified in the Authorisation. When a mining company applies for an Authorisation it must submit a mining management plan to the Minister for Mines and Energy. The mining management plan must include:

Applications for Authorisations are not notified to the public and there are no rights for anyone to object to the grant of an Authorisation.

The Minister for Mines and Energy cannot approve a management plan unless they are satisfied that:
  • the environmental protection management system for the site is appropriate for the activities and will, as far as practicable, operate effectively in protecting the environment; and
  • that mining activities under the plan will be done in accordance with good industry practice. The Minister for Mines and Energy may decide to impose conditions on an Authorisation, such as conditions for the protection of the environment and conditions that take into account any environmental impact assessment that has taken place under the Environment Assessment Act.

The Minister for Mines and Energy can decide to:
  • refuse to approve the management plan and refuse to grant the authorisation; or
  • approve the mining management plan and grant the authorisation. The Minister for Mines and Energy cannot grant an authorisation unless he has approved the management plan. Once an Authorisation has been granted a mining company has to comply with its current mining management plan.

Environmental protection and minerals mining

Exploration and mining for minerals or extractive minerals can cause damage to the environment. Mining companies conducting exploration or mining of minerals or extractive minerals must comply with environment protection obligations in the Northern Territory MMA.

There are five main ways that this law tries to protect the environment:
  1. Mining companies must comply with environmental obligations at mining sites;
  2. There are criminal offences for mining companies that cause serious or material harm to the environment or cause an environmental nuisance if they breach their environmental obligations;
  3. An Authorisation is required from the Department of Mines and Energy before undertaking exploration or mining activities;
  4. Mining companies must have environmental protection management systems in place for mining sites;
  5. Mining companies must pay money as security to the Department of Mines and Energy so that mining sites can be rehabilitated and any environmental harm caused by mining activities can be cleaned up without the Northern Territory government having to pay for it. If exploration or mining operations are likely to have significant environment impacts, an environmental impact assessment will be needed.

When does the Mining Management Act apply?

The Mining Management Act 2001 (NT) (MMA) applies to all mining activities for mineral and extractive minerals in the Northern Territory. It applies to all aspects of mining including mining, processing, tailings, decommissioning, rehabilitation and works associated with mining. It also applies to all mineral and extractive exploration that will cause substantial disturbance to the land. Substantial disturbance means:
  • land clearing
  • an activity that is likely to have a significant impact on flora or fauna
  • waterworks such as dams, canals, alteration or drainage of river or creek banks, water courses or shorelines
  • works above the ground such as building roads, bridges, railways, airstrips, conveyors, pipelines, power lines or telephone lines
  • earthworks
  • blasting
  • extracting resources from the surface of the land, underground, riverbeds or under the sea
  • underground works such as tunnels, wells, pipelines or cables
  • stockpiling ore, overburden, waste materials or by-products
  • building a camp for workers
  • active remote sensing and seismic techniques in water
  • establishing seismic lines, drill pads, drill holes, grids, and tracks.

What are environmental obligations?

The main environmental obligations under the MMA are:
  • Every person on a mining site has an obligation to take care of the environment
  • Operators must ensure that the environmental impact of mining activities is limited to what is necessary for the establishment, operation and closure of a site
  • Operators of mining sites have to set up an environmental protection management system and check that it works
  • A person must not wilfully or recklessly cause environmental harm on a mining site or interfere with or misuse anything provided on a mining site for environmental protection
  • Any person on a mining site must follow all reasonable directions given by the operator about preventing environmental harm.

Criminal offences for causing environmental harm

For minerals and extractive minerals mining, there are criminal offences for causing serious or material environmental harm or an environmental nuisance at a mining site.

Harm means any type of harm or adverse impact on the environment, including any risk of harm occurring. The harm can affect any part of the environment and could be caused by anything. For example, harm could result from a pollution incident or from someone clearing native vegetation.

Serious environmental harm is the highest level of environmental harm under the Act. It includes environmental harm that:
  • is irreversible or otherwise of a high impact or on a wide scale
  • damages an aspect of the environment that is of a high conservation value, high cultural value or high community value or is of special significance
  • results or is likely to result in more than $50,000 or the prescribed amount (whichever is greater) being spent in taking appropriate action to prevent or minimise the environmental harm or rehabilitate the environment, or
  • results in actual or potential loss or damage to the value of more than $50,000 or the prescribed amount (whichever is greater).
Material environmental harm is the second highest level of harm. It means environmental harm that:
  • is not trivial or negligible in nature
  • consists of an environmental nuisance of a high impact or on a wide scale
  • results, or is likely to result, in not more than $50,000 or the prescribed amount (whichever is greater) being spent in taking appropriate action to prevent or minimise the environmental harm or rehabilitate the environment, or
  • results in actual or potential loss or damage to the value of not more than $50,000 or the prescribed amount (whichever is greater).

Pollution offences

There is an offence if a person releases waste or a contaminant from a mining site and the release is not authorised by the mining management plan for the site. This offence applies regardless of whether the release occurs on or outside the mining site. This is an offence of strict liability. This means that the person who commits the offence does so whether or not they did it intentionally, recklessly, negligently or could be reasonably expected to know about it.

Who can enforce environmental offences?

Enforcement of offences under the MMA may only be commenced by the Chief Executive Officer of the Department of Mines and Energy or with their written approval. Prosecution proceedings must be commenced within 12 months after the day on which the Chief Executive Officer first became aware of the commission of the alleged offence.

Members of the public may bring private prosecutions if they obtain consent of Chief Executive Officer of the Department of Mines and Energy. There are defences to the offences, so it is important to get legal advice before starting any prosecution.

Penalties

The environmental offences under the MMA have penalties divided into four levels set by the Environmental Offences and Penalties Act. The penalties relate to the level of environmental harm caused by the offence. Level 1 environmental offences are the most serious. These attract high fines or imprisonment if a person is found guilty of the offence. Level 4 environmental offences are the least serious. They are punishable by lesser fines.

Uranium mining

Uranium mining in the NT can have adverse impacts on the environment. Pollution from mining operations can have damaging impacts on the environment. There are also environmental risks with the use of uranium ores to fuel nuclear power stations.

Uranium is a type of metal which is radioactive. The Commonwealth government owns uranium, thorium and other radioactive substances. Exploration and mining uranium and radioactive substances, such as thorium, are controlled by Commonwealth laws and by NT mining laws.

Where does uranium mining occur in the NT?

Uranium exploration and mining takes place throughout the Northern Territory. One of the main areas for uranium exploration and mining in the Northern Territory is the Alligator Rivers Region. Within the Alligator Rivers Region, uranium mining has occurred since 1959. Uranium mining pre-dates the creation of Kakadu National Park.

Laws governing uranium mining

The laws which control exploration and mining of uranium, thorium and other radioactive substances are:
  • The Northern Territory Mineral Titles Act and Mineral Titles Regulations. This is the law under which exploration and mining approvals can be granted to mining companies to allow them to explore and mine for uranium. The Northern Territory Minister for Mines and Energy can only grant uranium exploration and mining approvals and exercise powers in accordance with the advice of the Commonwealth Minister administering the Atomic Energy Act.
  • The Northern Territory MMA. This is the law under which Authorisations are granted, which allow a mining company to undertake exploration and mining activities. This law imposes environmental requirements on mining companies. Before exercising a power or performing a function in relation to an Authorisation relating to uranium or thorium, the Minister for Mines and Energy must consult with the Commonwealth Minister about matters agreed in writing between them relating to the mining of uranium or thorium; and must act in accordance with any advice provided by the Commonwealth Minister. Before granting or varying an Authorisation that relates to the Ranger Project Area, the Minister must ensure that the Authorisation incorporates or adopts by reference (with the necessary modifications) the Ranger Project Environmental Requirements.
  • The Commonwealth Atomic Energy Act 1953. This law mainly gives the Commonwealth Government of Australia the power to grant uranium exploration and mining projects in the Ranger Mining Area.
  • The Commonwealth Environment Protection and Biodiversity Conservation Act 1999. This law prohibits mining or milling uranium ore and other activities that have or are likely to have a significant impact on a matter of national environmental significance, unless an approval has been granted by the Commonwealth Minister for Environment.
  • The Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 applies to Aboriginal land under that Act. This law gives traditional Aboriginal owners the power to refuse consent to exploration on their land (and in doing so has important powers to stop mining on Aboriginal land).
  • The Commonwealth Native Title Act 1993 applies if there are native title rights and interests on the land. This law gives people with registered native title rights and interests the rights to be consulted about exploration and mining proposals that may affect them.

Approvals needed for uranium mining

Before a mining company can explore or mine for uranium or other radioactive substances, it needs the following approvals:

In the Ranger Mining Area, exploration and mining is permitted according to an authority under the Commonwealth Atomic Energy Act.

What do the approvals allow a mining company to do?

Mineral exploration licence

A mineral exploration licence allows the holder of the licence to occupy the area in the licence and to explore for minerals. Whilst these activities may seem quite harmless, exploration activities could have significant environmental impacts. For example holders of exploration licences or exploration licences in retention can:
  • Dig pits, trenches and holes, sink bores and tunnels
  • Extract and remove mineral samples for analysis
  • Drill and use other methods to determine the quality, quantity and extent of the mineral
  • Enter and occupy land in the licence or approval area with people, equipment, and vehicles
  • Use water - including to take or divert water, sink a bore or a well, for use in the exploration or mining and for domestic use for workers
  • Use land outside the area and within the area to build an access road across any land that is the shortest route from the exploration site or mine to another road, a railway, an airstrip, the sea or a waterway
  • Use land outside the licence area to build, maintain and use infrastructure for the exploration if the person who is conducting the exploration is granted an Access Authority.
Mineral lease

A mineral lease is an approval that allows the lease holder to:
  • Mine for minerals
  • Explore for minerals in the title area
  • Enter and occupy land in the licence or approval area with people, equipment, and vehicles
  • Use water - including to take or divert water, sink a bore or a well, for use in the exploration or mining and for domestic use for workers
  • Conduct activities related to the mine, such as operate a treatment plant
  • Treat tailings for example by having a tailings dam
  • Store waste
  • Process and refine minerals
  • Use land outside the area and within the area to build an access road across any land that is the shortest route from the exploration site or mine to another road, a railway, an airstrip, the sea or a waterway
  • Conduct tourist fossicking with mechanical equipment
  • Use land outside the licence area to build, maintain and use infrastructure for the exploration if the person who is conducting the exploration is granted an Access Authority.
A mineral lease gives a mining company a lot of rights. Once a mining company has finished mining a part of land within the title area, it does not end the life of the mine. Because a mineral lease also approves exploration, this means that even when one part of a mining site is closed and is being rehabilitated, the company can start new exploration within the same title under the mineral lease. This means that mining activities could last for a very long time.
Authorisation under the Mining Management Act

An Authorisation is the legal approval to actually conduct the exploration or mining activities for which a mining company holds an exploration licence or mineral lease. Authorisations may be subject to conditions and can only be granted if the Minister for Mines and Energy has approved a mining management plan for the site.
Approval under Environment Protection and Biodiversity Conservation Act 1999

This is an approval from the Commonwealth Environment Minister which allows the mining company to undertake the actions in the approval, subject to any conditions that are imposed on the exploration or mining.
Approval under Atomic Energy Act

An approval under the Atomic Energy Act allows a mining company to do the following activities (subject to any conditions or restrictions in the authority) in the Ranger Project Area:
  • enter and take possession of land with workers, machinery, vehicles and things
  • exploration, mining, recovery, treatment and processing of uranium
  • bore or sink for water, raise or use water and cut and construct dams and drains
  • cut and construct roads
  • erect or install buildings and demolish or remove buildings

Objections

Landowners can object to the grant of an exploration licence and/or a mineral lease. Landowners in the Mineral Titles Act are:
  • the Land Trust for any Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act
  • the holder of the native title for any native title land
  • an Aboriginal Community Living Area Association
  • people recorded as being the owner in the Land Register
  • a lease holder of a pastoral lease under the Pastoral Land Act
  • a lease holder of a grazing licence or occupation licences or another types of licence granted under the Crown Lands Act or Special Purposes Leases Act.
  • the land manager for a park or reserve
  • the Conservation Land Corporation.
Other people who are not landowners can make a submission opposing the grant of an exploration licence and/or a mineral lease.

Objections and submissions must be made within 30 days of the newspaper notice in which an exploration licence or mineral lease is notified to the public. The Minister for Mines and Energy has to take objections and submissions into account when deciding whether or not to grant an exploration licence or mineral lease. There are no rights of objection to Authorisations under the MMA.

As the proposal to mine for uranium is a nuclear action under the Environment Protection and Biodiversity Conservation Act, a company must refer the proposed action to the Commonwealth Minister for the Environment. When a proposal is referred, the Commonwealth Minister of Sustainability, Environment, Water, Populations and Communities will decide whether or not the proposal needs to have an environmental impact assessment and what form that will take.

All proposals referred are placed on the website of for the Environment. Members of the public and environment groups can comment on a proposal within 10 business days. There are rights for members of the public to make submissions when proposals are referred.

Appeals

There are no rights in any of the mining laws for any third parties (objectors, submitters) to apply for a review (often called an appeal) of the merits of a decision to grant a uranium mining approval.

The only legal way third parties may challenge a uranium exploration or mining approval is to apply for judicial review. This type of legal case is about whether or not the decision made by the Minister is legally valid.

For decisions made by the Northern Territory Minister for Mines and Energy, judicial review would be in the Supreme Court of the Northern Territory.

For decisions made by the Commonwealth Minister for Environment, judicial review would be in the Federal Court of Australia.

Transporting uranium

Once radioactive material (including uranium ores and concentrates) leaves a mining site, the Radioactive Ores and Concentrates (Packaging and Transport) Act control how it must be transported, stored and packaged within the Northern Territory. This law does not apply to low-level radioactive ores.

A person (or company) may only transport or store radioactive material if they have licence from the Northern Territory Chief Inspector. A licence is subject to any conditions that the Chief Inspector considers necessary for the safe packaging, storage or transport of radioactive material. Conditions can include details about:
  • the motor vehicle, train, vessel or aircraft that is allowed to carry the material
  • the person who must transport it
  • the times of day that it can be transported
  • the number and weight of loads that can be transported.
If radioactive material is being transported, the person who is in control of the vehicle must notify an inspector if:
  • the vehicle is in an accident
  • the vehicle is delayed
  • there has been a leakage or spillage of radioactive material that has caused or may cause contamination of the environment or a danger to a person.
If the Inspector thinks that a leakage or spillage of radioactive material that has caused or may cause contamination of the environment or a danger to a person during transport, packaging or storage, the Inspector must notify the Northern Territory Chief Health Officer and the Chief Inspector.

The Chief Inspector has the powers to remove radioactive materials or to do works to reduce damage to the environment. People who are in danger of radioactive contamination can be made to have health checks by the Northern Territory Chief Medical Officer.

The Radioactive Ores and Concentrates (Packaging and Transport) Act does not provide any requirement for a company to clean-up environmental damage. However, if the inspector does work to reduce or prevent damage, the owner of the radioactive materials is liable to pay the inspectors costs.

Mining for petroleum

The Petroleum Act 1984 (NT) is the primary legislative source for petroleum tenure, exploration and production activities onshore and inland waters of the Territory. Applications for exploration (such as ground-based seismic surveys, well drilling and airborne gravity and magnetic surveys) within these areas should be lodged under s 16(1) of the Petroleum Act.

The Petroleum (Submerged Lands) Act (NT) 1981 caters for tenure, exploration and production activities in the 3 nautical mile strip of NT coastal waters. Applications for exploration permits in coastal waters should be lodged under s 21 of the Petroleum (Submerged Lands) Act 1981 (NT).

Applicants need to be aware of potential areas of restriction, such as reserves declared under the relevant act, and requirements to comply with the Native Title Act and Aboriginal Land Rights (NT) Act. Information regarding these acts can be located in the Aboriginal Land, Native Title and Heritage section. In addition, restrictions under the TWPCA may be applicable; please refer to Environment, Planning and Land Law.

More information regarding petroleum mining is available at the Department of Mines and Energy website: http://www.nt.gov.au/d/Minerals_Energy/index.cfm?header=Petroleum

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