Environment Law in the Northern Territory

Mining for minerals and extractive minerals

The law in the Northern Territory divides mining for minerals into two types of mining.  Mining for minerals and mining for extractive minerals.  This Fact Sheet explains how exploration and mining are approved for minerals and extractive minerals.  It explains your rights to object to exploration and mining activities.

Separate laws apply to oil or gas mining (read our Fact Sheet on Oil and gas mining for more information).

What are the laws?

There are two main laws for mining minerals and extractive minerals.

  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.  For information about Authorisations and environment protection under the Mining Management Act, read our Fact Sheet on Mining and the environment.

What are minerals?                                                      

Minerals are defined as:

  • 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
  • peat
  • another substance prescribed by regulation

Mining approval process overview

The diagram below shows an overview of the mining approval process.

Basic mining overview process

Exploration – overview

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 to 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 he or she intends 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.

When is consent and notice required for preliminary exploration?

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.

Granting or refusing consent to preliminary exploration

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, he or she can refer the dispute about the consent to the Lands, Planning and Mining Tribunal.  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 his or her consent to the preliminary exploration.

Consent to use of water and overnight stay on the land

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 he or she plans to stay overnight on the land.   A landowner can refuse consent to use water conserved by him or her.  In all cases, preliminary exploration is not allowed to take place within 200m of a building.

The diagram below shows the preliminary consent process.

Preliminary exploration

Can consent to preliminary exploration be withdrawn?                                                                                 

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 licences?

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 Mining Management Act, called an Authorisation.  The Authorisation is required before the miner can start the mining activities (read our Fact Sheet on Mining and the environment).

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 he or she considers 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 reserved land is in our Fact Sheet on Mining in parks, reserves, wilderness areas and on Crown land.  A mineral authority gives the holder of the authority the right to do the same things as he or she 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.

More information about the laws on fossicking is explained in our Fact Sheet on Fossicking.

Can people object to mining and exploration?

Yes.  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 Actand 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, Planning and Environment and must consider his or her opinion.  For more information about mining in protected areas read our Fact Sheet on Mining in parks, reserves, wilderness zones and on reserved land.
  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 he or she is 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 he or she is satisfied that all procedures under the Commonwealth Native Title Act 1993 have been followed.
  12. Before the Minister for Mines and Energy makes a decision he or she has the option to refer the application to the Lands, Planning and Mining 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.
  13. 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 of Resources’ decision. This type of legal case is called judicial review.  For more information about judicial review, please read our Fact Sheet on Judicial review and merits 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.  Contact us if you wish to discuss your options to challenge a decision.

When does a mining company need consent?

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

What is an Access Authority?

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:
    • 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:
      • Private land;
      • Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act
      • An Aboriginal community living area.
  • 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.     

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 the Lands, Planning and Mining Tribunal 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 Mineral Titles Act, a mining company also needs to get an Authorisation from the Minister for Mines and Energy.  An Authorisation is the approval under the Mining Management Act 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:

  • details about the environmental protection management system and how it will be implemented
  • a description of the mining activities
  • a plan and costing of the activities for the closure of the mine
  • plans of the current and proposed mine workings and infrastructure
  • details about the organisational structure of the mining company

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 he or she is 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.