Environment Law in the Northern Territory

Rehabilitation of land after mining

Overview

Once mining on an area of land has finished, there may be legal requirements to rehabilitate the land.   There is no consistent legal approach to land rehabilitation in the Northern Territory as the requirements to rehabilitate a site depend on the resource being mined.

This Fact Sheet sets out the legal regime for rehabilitation of land after the following types of mining:

Rehabilitation of land after minerals and extractive minerals mining

Environmental management of operations for mining of minerals and extractive minerals is regulated by the Northern Territory Mining Management Act.

The main ways in which rehabilitation[1] is regulated is by:

  • the Minister for Mines and Energy having broad powers to take actions (on and off mining sites) to rehabilitate land;[2]
  • where an authorisation to carry out mining activities has been granted it is subject to certain conditions, which specify that an operator of a mining site must:
    • comply with the mining management plan that is in force for that particular mining site;[3]
    • (unless the authorisation relates to the Ranger Project Area), pay a security bond of an amount, in the form and on the terms, specified in the condition.[4]  The security is a payment made to the Northern Territory Government that can be used by the Government in the event that the Government is required to remediate or clean up a mining site due to a default by the licensed operator.  It acts as a form of insurance against the Northern Territory bearing the cost of clean-up of a mining site.
    • pay a levy of an amount specified in the condition[5]; and
    • the Minister for Mines and Energy may impose any other condition he or she considers appropriate for the mining activities specified in the mining company’s mining management plan.[6] In this regard, the Act states that the Minister can impose conditions about, amongst other things, the protection of the environment.[7]
    • enabling closure criteria to be specified in the Mining Management Plan for the mining site. ‘Closure criteria’ are standards or levels of performance that an operator must comply with before a mining site can be demonstrated to be closed.[8]

Whilst the Mining Management Act provides these legal ways to ensure land remediation, all are subject to the Minister’s discretion in how he or she administers the law.   This means that, although there are powers to require rehabilitation of or to rehabilitate a mining site, it is not a legal requirement that the Minister exercises those powers.  This could mean that the Minister:

  • may require security which is less than that required to clean up or remediate a site to community expectations
  • may impose closure criteria within a Mining Management Plan which do not provide for remediation of a site to community expectations
  • may chose the extent to which he exercises his powers to remediate land.

Minister for Mines and Energy powers to take action

The Minister for Mines and Energy has powers to take actions relevant to land rehabilitation at mining sites.[9]  These powers include the following:

  • The Minister may cause action to be taken to complete rehabilitation of a mining site.[10] The Minister may cause action to be taken on or outside a mining site that the Minister considers necessary to prevent, minimise or rectify a hazardous situation or environmental harm that results from or may result from a mining activity.[11]
  • The Minister may take action at a mining site if he or she considers it necessary and if:[12]
    • a mining company does something at a mining site that is prohibited by the Mining Management Act or an Authorisation; or
    • a mining company fails to do something at a mining site that is required by the Mining Management Act or an Authorisation
  • The Minister may authorise another person, in writing, to take action for one of the above purposes.[13] That person may enter a mining site and take the action.[14]

The costs and expenses that the Minister for Mines and Energy incurs in taking any of these actions may be recovered from the security if this was paid (see below) or may be treated as a debt payable to the Territory by the person whose act or failure to act made the action necessary.[15]

Security

As stated above, in relation to the conditions that may be imposed with an Authorisation, a standard condition is that a mining operator must provide a security to the Minister in relation to the mining activities.[16]

The security is paid for the purpose of covering:

  • the payment of costs and expenses in relation to the Minister taking an action to rehabilitate the mining site;
  • the operator’s obligation to comply with the Mining Management Act and the Authorisation;
  • the payment of costs and expenses where the Minister takes an action to prevent, minimize or rectify environmental harm caused by mining activities:
    • on the relevant mining site; or
    • outside the mining site if the environmental harm results or may result from the mining activity carried out on the mining site.[17]

Furthermore, an annual levy must be paid by an operator who carries out mining activities under an Authorisation. The Mining Management Act states that the levy is “a tax in relation to mining activities that is levied” for the purpose of raising revenue for:

  • the Mining Remediation Fund; and
  • for the effective administration of the Mining Management Act in relation to reducing or remedying environmental harm caused by mining activities.

The Mining Remediation Fund holds money in trust to use to reduce or fix environmental harm caused by unsecured mining activities (that is, activities where a security has not been given or the security provided has been expended).[18] At least 33% of the amount of a levy paid by a mining operator will be paid into the Fund.[19]

As such, the money in the Fund may be used to cover the cost and expenses incurred in relation to, amongst other things:

  • identifying environmental harm which has been caused by unsecured mining activities;
  • assessing the risk of that harm;
  • conducting investigations and scientific studies in relation to that harm;
  • preparing remediation plans which are necessary because of that harm; and
  • carrying out both short-term and long-term remedial works which are required because of that harm; and
  • engaging other people with relevant expertise to carry out other activities relating to that harm.

Closure criteria

When a mining site closes, the mining company may apply to the Minister for Mines and Energy for a certificate of closure for the site.[20] The Minister for Mines and Energy can only issue a certificate of closure when the operator of the mining site has met the closure criteria.[21]  Closure criteria are the standards or levels of performance, as specified in the mining management plan for the mining sites that demonstrate successful closure of the site.[22]

Rehabilitation of land after oil and gas mining

Once an exploration permit, retention licence or production licence has ended, the Minister for Mines and Energy may direct that the surface of the land in the former exploration or licence area is rehabilitated and restored.[23]  Similarly, where an access authority has been surrendered or cancelled, or has expired, the Minister of Mines and Energy may direct the holder of that access authority to:

  • remove anything brought into the area to which the access authority applied; [24]
  • ‘make good’, to the Minister’s satisfaction, the rehabilitation of the environment in the area in which the access authority applied or any other area that has been damaged by a person operating within the scope of the access authority.[25]

For offshore oil and gas mining, when exploration or production has finished, the Northern Territory Minister, or Commonwealth Minister or the National Offshore Petroleum Safety and Environmental Management Authority may give a direction that the seabed or subsoil be “made good”.[26]

Rehabilitation of land after pipelines for gas and oil

For pipelines on land or inshore waters, there is no legal duty on licensees to remove a pipeline when it is no longer used.  Pipelines can be lawfully abandoned. There are few requirements to rehabilitate any land that has been damaged during construction, operation or decommissioning (if this does occur) of a pipeline.

Any requirements to rehabilitate land are set at the discretion of the Minister for Mines and Energy. The Minister can:

  • direct that any damage to the land where the pipeline was is “made good”[27]
  • direct that property is removed from the land where a pipeline was
  • put conditions on a licence that require the licensee to reinstate, regrass, or reforest any land which is damaged or deleteriously affected by the licensee[28]
  • put any other conditions on a licence as he or she thinks fit

There is a special requirement for agricultural land.  This is that, as soon as construction of a pipeline is finished, agricultural land must be restored so that it can be used in the same way as it was immediately before construction.[29]

For offshore pipelines beyond three nautical miles of the Northern Territory coast, the National Offshore Petroleum Safety and Environmental Management Authority has the power to give a direction to a pipeline holder to “make good”, to the satisfaction of the responsible Commonwealth Minister, any damage to the seabed or subsoil in the licence area.[30]

Rehabilitation of land after geothermal energy mining

Rehabilitation only occurs at the end of geothermal activities.[31] Exploration under a geothermal exploration permit or retention licence can end:

  • when the permit or licence expires
  • if the holder of the permit or licence applies to surrender their permit or licence
  • if the permit or licence is cancelled

Geothermal energy production under a geothermal production lease ends:

  • if the holder of the permit or licence applies to surrender their permit or licence
  • if the permit or licence is cancelled

The main way that the law requires rehabilitation of land after geothermal activities is through the geothermal operations plan for a site.  Before a person (or company) can start conducting geothermal activities, he or she needs to apply to have a geothermal operations plan approved by the Minister for Mines and Energy.[32]  The plan must include details of the proposed restoration and rehabilitation of land if geothermal activities are to cease permanently.[33]  The plan must also include the expected cost of restoration and rehabilitation.[34]

For exploration activities that end on the expiry date of the exploration permit or retention licence the holder of a permit or licence must review its geothermal operations plan at least 3 months before it expires.[35]  If the geothermal operations plan does not include comprehensive details about restoration and rehabilitation, the permit or licence holder must apply to the Minister for Mines and Energy for approval of a variation of a geothermal operations plan, which does include comprehensive details about rehabilitation.[36]

In addition to requiring compliance with the geothermal operations plan that includes proposals for rehabilitation, the Minister for Mines and Energy can also require an applicant for a geothermal approval or the holder of a geothermal approval to pay security.[37]  Security is money (or another financial mechanism) that is paid to the Minister for Mines and Energy, which the Minister can use to pay for any costs and expenses he incurs if he has to rehabilitate land.[38]  The Minister for Mines and Energy can also require security in relation to any costs and expenses he may occur in preventing, minimising or rectifying serious or material environmental harm or environmental nuisances caused by geothermal activities. [39] The Minister for Mines and Energy decides what type of security is required and the amount of security.[40]  The Minister for Mines and Energy decides when and how to use security.[41] The Minister for Mines and Energy can decide to refuse to approve or vary a geothermal operations plan.

When a person (or company) wishes to finish their geothermal activities, he, she or it may apply to the Minister for Mines and Energy to surrender their geothermal approval.  An application to surrender a geothermal authority must include a report about the restoration and rehabilitation that has been, or is currently being, carried out in the application area.[42]


[1] Note that this law does not define “rehabilitation“.

[2] s83(3) Mining Management Act

[3] S 37(2)(a)Mining Management Act

[4] S 37(2)(b) Mining Management Act

[5] S 37(2)(b) Mining Management Act

[6] S 37(2) Mining Management Act

[7] S 37(3)(a) Mining Management Act

[8] s46(3) Mining Management Act

[9] s83 Mining Management Act

[10] s83(3) Mining Management Act

[11] s83(2) Mining Management Act

[12] s83(1) Mining Management Act

[13] s83(4) Mining Management Act

[14] s83(4) Mining Management Act

[15] s83(5) Mining Management Act

[16] s43(1) Mining Management Act

[17] s43(2) Mining Management Act

[18] s46A Mining Management Act

[19] s46C(1) Mining Management Act

[20] s46(1) Mining Management Act

[21] s46(2) Mining Management Act

[22] s46(3) Mining Management Act

[23] (s77(1)(c)) Petroleum Act

[24] S57A(12)(a) Petroleum Act

[25] S 57(12)(b) Petroleum Act

[26] s107(1)(d) and s112(9)(c) Petroleum (Submerged Lands) Act and s586 Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth)

[27] s28(1)(b) Energy Pipelines Act

[28] s17(2)(c) Energy Pipelines Act

[29] s35 Energy Pipelines Act

[30] Part 6.4 Division 1 Offshore Petroleum and Greenhouse Gas Storage Act 2006

[31] See Regulation 14(e) Geothermal Energy Regulations.

[32] s67 Geothermal Energy Act

[33] Regulation 14(e) Geothermal Energy Regulations

[34] Regulation 14(e) Geothermal Energy Regulations

[35] Regulation 15(2)(a) Geothermal Energy Regulations

[36] Regulation 15(2)(b) Geothermal Energy Regulations

[37] s60 Geothermal Energy Act

[38] s60(2)(b) Geothermal Energy Act

[39] s60(2)(a) Geothermal Energy Act

[40] s62 Geothermal Energy Act.

[41] The Geothermal Energy Act does not say when or how security will be used by the Minister for Resources, only that security is for payment of costs and expenses that “may be incurred by the Minister”.

[42] s56(2) Geothermal Energy Act