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Land Rights Act Part IV (Mining)

The principal aim of Part IV of the Land Rights Act is to protect the rights and interests of Aboriginal landowners while providing an administrative framework for, and security of tenure to, minerals and energy companies that wish to explore for (and, possibly, one day produce) minerals or energy products on Aboriginal land in the Northern Territory.

The ALRA (particularly Part IV), is regarded as the benchmark standard for the enshrinement of Indigenous land rights in Australian legislation, because it allows traditional Aboriginal landowners in the Northern Territory to either consent to or refuse minerals and petroleum exploration applications on their lands and associated waters. No legislation elsewhere affords this level of assurance to landowners in Australia (outside the major population centres).

Certain areas of Aboriginal land in the Northern Territory are regarded as highly prospective for both minerals and onshore petroleum, ensuring a high level of interest from the resources sector and their continued engagement with the NLC and Aboriginal landowners.

Where consultations are convened for the consent to grant under Part IV ALRA (applications) the NLC must establish whether or not the traditional Aboriginal land owners have given their Free, Prior and Informed Consent (FPIC) to exploration and possible production. If the NLC determines that FPIC has not been achieved, further consultations, information sharing and discussion with the Traditional Owners would be required until such time as the NLC is satisfied that all statutory requirements have been met.

Traditional Owners do not have the right to veto a project at the production phase; this veto right applies only when the initial exploration application is presented for consideration. The lack of a veto right at production requires the NLC to negotiate the principles for a production agreement during the exploration agreement negotiations.

Part IV imparts responsibilities on the NLC to: (i) ensure timely management of minerals and energy applications; (ii) under instructions, negotiate leading practice agreements that ensure appropriate benefits flow to land holders; and (iii) manage compliance with negotiated exploration and production agreements.

The statutory obligations start once a proponent lodges an application for consent to grant to explore for minerals or petroleum over Aboriginal land, under section 41, Part IV (See maps on pages 142 and 143). These obligations remain in place until the application is either finalised or withdrawn. The obligation to consult holds even where Traditional Owners have refused exploration activities in the past – i.e., a tenement can be subject to reapplication following conclusion of the five-year moratorium period. The Part IV consultation process can result in any of the following outcomes:

  1. refusal to the consent to grant of a tenement (the entire application area is placed into moratorium for five years), commonly referred to as the “right to veto”; or
  2. partial grant and partial refusal to the consent to grant of a tenement (refused areas are excised from the granted tenement and placed into moratorium for five years during which time the company holds no rights to access or conduct exploration); or
  3. consent to the grant of a tenement (the entire application area is processed to grant).

Exploration and Production

The exploration phase is initiated when a tenement proceeds to grant following provision of Traditional Owner consent, ministerial approval and execution of the agreement. An Exploration Licence (EL) is granted for minerals applications and an Exploration Permit (EP) for petroleum, production activities are not permitted under the terms of grant for an EL or an EP.

Once a tenement is granted by the Northern Territory Government, the proponent is obliged to present its proposed exploration activities to Traditional Owners at a work program meeting. These meetings are a standard contractual obligation under NLC agreements and occur annually, although additional meetings are required if significant changes are subsequently made to an approved work program. The NLC also facilitates Traditional Owners’ participation in the project through engagement as cultural monitors and other employment and business opportunities that may be available.

Most exploration projects do not proceed to production; in such cases, following cessation of exploration and rehabilitation activities, the tenement is relinquished and the company has no further rights to the land.

If during the exploration phase an economic resource is discovered the proponent may proceed to apply for either a Mineral Lease (for mining of minerals) or a Production Licence (for production of petroleum) over any part of the EL or EP depending on the size and location of the resource and the placement of ancillary infrastructure, including processing plants, tailings dams, waste rock dumps, workers’ accommodation camps, haul roads, water supply (dams, pipelines), power supply, airstrips, loading facilities, shipping channels, dredge spoil and containment areas, compressor stations, etc.

In addition to the various government approvals required to commence production, under Part IV a section 46 (s.46) statement describing the proposed production activities must be submitted to the NLC. If the statement is accepted, consultations would be convened with the traditional Aboriginal owners and any affected Aboriginal people and communities to explain the proposal, listen to their concerns and to obtain advice and instructions towards the negotiation of suitable terms for a production agreement.