Environment Law in the Northern Territory

Mining on Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act

Overview

Mining on Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act in the Northern Territory is subject to additional laws.  These laws give traditional Aboriginal owners the right to refuse access to their land and the right to refuse consent to exploration activities on their land.

The laws apply at the start of the mining process.  This is at the exploration stage.  A right to explore cannot be granted unless the traditional Aboriginal owners consent under the process set out in the Aboriginal Land Rights (Northern Territory) Act.

The Minister for Mines and Energy cannot consent to mining on Aboriginal land unless the mining company already holds a right to explore.

This means that traditional Aboriginal owners have the rights to say no to exploration and mining on their land.  But only if consent is refused at the exploration stage.  If consent to exploration is granted, there are no legal rights for traditional Aboriginal owners to refuse consent to mining.

Mining usually has significant environmental impacts.  But the stage at which traditional Aboriginal owners of land can decide whether or not to grant consent is at the earliest stage in the development process, when the least information is available about what mining may later take place and what the environmental impacts may be.  The decision about whether or not to consent to exploration is an onerous one.

The laws about obtaining consent from traditional Aboriginal owners apply in addition to the usual notice and objection procedures that apply to exploration and mining of minerals and petroleum.  For information about what notice and objections are allowed for minerals and petroleum, read our Fact Sheets on Mining of minerals and extractive minerals and Oil and gas mining.

What are the laws?

The Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 has a legal process that must be followed before any mining can take place on Aboriginal land. This law gives traditional Aboriginal owners the right to veto exploration activities on their land.

The Northern Territory Aboriginal Land Act is a law that requires people entering Aboriginal land to have a permit. It gives traditional Aboriginal owners the right to refuse a permit to access Aboriginal land under that Act.

In addition, the Northern Territory Mineral Titles Act and Mineral Titles Regulations have rules about when mining companies have to notify and get consent before conducting preliminary exploration on land.  These rules apply to preliminary exploration on Aboriginal land under the Aboriginal Land Rights Act and in Aboriginal community living areas.

What is Aboriginal land under the Aboriginal Land Rights Act?

‘Aboriginal land’ is defined under the Aboriginal Land Rights Act as land that is owned by Aboriginals entitled by Aboriginal tradition to the use or occupation of the land concerned (called traditional Aboriginal owners).

Exploration activities

There are two types of 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 – This is exploration activity under an exploration licence.  This allows a person to explore for minerals or petroleum and to undertake other activities.

Preliminary exploration

The Mineral Titles Act and Mineral Titles Regulations require a person who wants to conduct preliminary exploration to give notice of their intention to come on to land to conduct preliminary exploration and to get consent from the landowner in certain cases.

On Aboriginal land under the Aboriginal Land Rights Act or in an Aboriginal community living area, the mining company must give notice to, and get consent from the landowners to do the preliminary exploration.

The Mineral Titles Act defines ‘landowner’:

  • For Aboriginal Land under the Aboriginal Land Rights Act – the landowner is the Land Trust
  • For an Aboriginal community living area – the association is the landowner

To give notice, the mining company must do the following:

  • Tell the occupiers of Aboriginal land under the Aboriginal Land Rights Act or Aboriginal Community living areas (or if the occupiers cannot be found, the owners of the land) 14 days before the preliminary exploration is to start that he or she intends to conduct preliminary exploration; and

To obtain consent, the mining company must do the following:

  • For Aboriginal Land under the Aboriginal Land Rights Act – get the written consent of the Land Trust
  • For an Aboriginal community living area – get the written consent of the association.

The landowner can decide whether or not to give consent. However, the landowner must not ‘unreasonably withhold consent’ to preliminary exploration.

The law says that a landowner can reasonably withhold consent if the preliminary exploration would substantially interfere with the landowner’s use of the land.

If the mining company who wants to do the preliminary exploration thinks that a landowner is unreasonably withholding consent, he or she can refer the dispute about the consent to the Lands, Planning and Mining Tribunal. The Tribunal can make a decision about whether withholding consent is reasonable or not.

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

If the landowner has not responded to a request for consent within 2 months, they are taken to have given consent to the preliminary exploration.

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 use of the land.

  • If consent is given, the person must also get consent before using any water conserved by the landowner and must tell the landowner if he or she plans to stay overnight on the land.  In all cases, preliminary exploration is not allowed to take place within 200m of a building.

For more information about preliminary exploration and what activities it covers read our Fact Sheet on Mining of minerals and extractive minerals.

Exploration

The law gives traditional Aboriginal owners of Aboriginal land under the Aboriginal Land Rights Act the right to refuse to consent to a mining company exploring on their land.  The right to refuse consent applies to:

  • exploration for minerals, including uranium
  • exploration for petroleum (oil and gas)

It does not apply to mining for extractive minerals (sand, soil, gravel, rocks and peat).  However, the Minister for Mines and Energy must tell the Land Council when he or she receives an application for an extractive mineral permit or an extractive mineral lease on Aboriginal land.

What is the consultation and consent process?

Under the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976, there is a legal process in which traditional Aboriginal owners can refuse consent or grant consent to exploration on Aboriginal land.  The process applies in the same way to all mineral and petroleum exploration.

The process is as follows:

  1. A mining company applies to the Minister for Mines and Energy for a right to explore.  For minerals, this will be an exploration licence (EL).  For petroleum, this will be an exploration permit.
  2. For petroleum exploration, the Minister for Mines and Energy must tell the Land Council when he or she receives an application for an exploration permit.
  3. The Minister for Mines and Energy decides whether or not to consent to the mining company starting negotiations with the Land Council for the purpose of seeking consent to explore from the traditional Aboriginal owners. The Minister for Mines and Energy can refuse consent or withdraw consent at any time before the negotiations are finished.
  4. If the Minister for Mines and Energy grants consent to negotiate, the mining company must within 3 months write to the Land Council for the Aboriginal land under the Aboriginal Land Rights Act to seek consent to explore from the Traditional owners.  The application must contain a comprehensive proposal of the exploration.  More information about this is explained below.
  5. The mining company must send a copy of its application for consent from the Land Council to the Minister for Mines and Energy.
  6. A negotiating period starts in which the mining company seeks to obtain consent of the traditional Aboriginal owners.  This is 22 months beginning on 1 January in the calendar year after the calendar year in which the application is received by the Council.  The negotiating period can be extended before the end of the 22 months.
  7. The Land Council must consult with traditional Aboriginal owners.  It must convene meetings and the mining company is allowed to attend at least the first meeting to explain the exploration program to the traditional Aboriginal owners.
  8. The Land Council decides whether or not to grant consent to the exploration.  The Land Council can only grant or refuse consent if it has consulted the traditional Aboriginal owners (if any) of the land to which the application relates concerning the exploration proposals and the terms and conditions to which the grant of the licence may be subject.  The Land Council cannot grant consent unless it has consulted any Aboriginal community or group that may be affected by the grant of the licence to ensure that the community or group has had an adequate opportunity to express to the Land Council its views concerning the terms and conditions.  The Land Council can only grant consent if:
  • it is satisfied that the traditional Aboriginal owners (if any) of the land understand the nature and purpose of the terms and conditions and, as a group, consent to them;
  • it is satisfied that the terms and conditions are reasonable; and
  • it has agreed with the applicant upon the terms and conditions
  1. Within 7 days of making its decision to grant or refuse to grant consent, the Land Council must inform the Northern Territory Minister for Mines and Energy, the Commonwealth Minister and the mining company.
  2. If the Land Council refuses consent no mining companies can apply for exploration approvals for 5 years.
  3. If the Land Council grants consent to exploration, it may impose terms and conditions on the exploration. If the Land Council and mining company cannot agree on the terms and conditions, a Mining Commissioner may arbitrate on the terms and conditions.
  4. If the Land Council doesn’t make a decision within the negotiating period, the mining company loses the consent from the Minister for Mines and Energy to negotiate.
  5. The Minister for Mines and Energy can only grant the right to explore if he is satisfied that mining company has obtained the permit, consent or agreement of the traditional Aboriginal owners as required under the ALRA.


The diagram below shows the process.

Diagram of mining process under Aboriginal Land Rights (Northern Territory) Act