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Aboriginal Land Commissioner Reports on review of Part IV of the Aboriginal Land Rights (Northern Territory) Act 1976 28 March 2013


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ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976

REPORT ON

REVIEW OF PART IV OF THE ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 JUSTICE JOHN MANSFIELD AM

Aboriginal Land Commissioner Jacana House

4th Floor, 39-41 Woods Street DARWIN 28 March 2013

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© Commonwealth of Australia 2013

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The document must be attributed as the REPORT ON REVIEW OF PART IV OF THE ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976.

Aboriginal and Torres Strait Islander readers should use caution when reading this report as it may contain references to deceased persons.

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REVIEW OF PART IV OF THE

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976

TABLE OF CONTENTS

ABBREVIATIONS USED vii

TERMS OF REFERENCE xiii

EXECUTIVE SUMMARY 1

LIST OF RECOMMENDATIONS 3

PROCESS OF CONSULTATION 6

BACKGROUND TO THE PRESENT REVIEW 10

Woodward Commission 10

Adoption of Woodward Commission recommendations 13

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) 15

The Toohey Report 16

The 1987 Amendments 17

The Reeves Report 20

The ATSIA Committee Report 21

Manning Report 22

2006 Amendment Act 22

SUMMARY OF VIEWS AND ISSUES 25

1. Achievement of objectives of the 2006 Amendment Act 25

2. Part IV’s consistency with other provisions of the ALR Act 27

3. Has delegation to the NT Mining Minister resulted in efficiencies? 28 4. The extent to which relevant Commonwealth and NT legislation operate to promote compatibility and procedural efficiencies 30 5. Costs and benefits to stakeholders of Part IV 33

6. The extent to which Part IV may restrict competition 35

7. The potential for amendments that would promote efficient

administration and improved outcomes 35

8. Other matters 47

DISCUSSION 48

1. Promotion of economic development 48

2. Expeditiousness of Part IV process 53

2.1. Comparison of processes 53

2.1.1 Process to obtain an EL over Aboriginal land 53

2.1.2. Process to obtain an EL over non-Aboriginal, Native Title land 58

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2.1.3. Process to obtain an ML over Aboriginal land 60

2.1.4. Process to obtain an ML over non-Aboriginal, NT Act land 63 2.1.5. Conclusion 64

2.2. Recommendations regarding the Part IV EL process 64

2.2.1. Application to NT Mining Minister 64

2.2.2. Consent to negotiate granted by NT Mining Minister 65

2.2.3. Application to Land Council 65

2.2.4. Land Council consultation and negotiation 69

2.2.5. Consent of Minister 80

2.2.6. Grant of EL by NT Mining Minister 81

2.3. Other proposals for more expeditious administration of Part IV 82 3. Certainty of Part IV processes 86

4. Other issues arising from this Review 91

4.1. Part IV’s consistency with other provisions of the ALR Act 91

4.2. Delegations to the NT Mining Minister 94

4.3. Compatibility of the relevant Commonwealth and NT legislation 96 4.4. Restrictions placed on competition by Part IV 101

CONCLUSION 102

APPENDICES 103

APPENDIX A: Letter of 7 September 2012 calling for submissions 104 APPENDIX B: Advertisement giving notice of review 107

APPENDIX C: List of entities that made written submissions 108 APPENDIX D: Submissions received 109

Aboriginal Areas Protection Authority 109

Anindilyakwa Land Council 116

Association of Mining and Exploration Companies 118

Central Land Council 127

Joint CLC and NLC responses 160

Extractive Industries Association of Australia 178

Department of Families, Housing, Community Services and

Indigenous Affairs 186

Department of Resources, Energy and Tourism 189

Department of Sustainability, Environment, Water , Population and Communities 191

Government of the Northern Territory 194

Minerals Council of Australia 237

Northern Land Council 242

Tiwi Land Council 247

Toro Energy 256

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ABBREVIATIONS USED

1975 Bill Aboriginal Land (Northern Territory) Bill 1975 (Cth)

1976 Bill Aboriginal Land Rights (Northern Territory) Bill 1976 (Cth)

1987 Amendment Act Aboriginal Land Rights (Northern Territory) Amendment Act (No 3) 1987 (Cth)

2006 Amendment Act Aboriginal Land Rights (Northern Territory) Amendment Act 2006 (Cth)

AAPA Aboriginal Areas Protection Authority

Aboriginal land Aboriginal land as defined in s 3 of the ALR Act (wherever this term is used in the Review it is to be assumed that this specialised meaning is intended)

ALC Anindilyakwa Land Council

ALR Act Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

AMEC Association of Mining and Exploration Companies

AMIC Australian Mining Industry Council (now defunct)

Applicant Applicant for an Exploration licence or a Mineral Lease

ATSIA Committee House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs

ATSIA Committee Report ATSIA Committee Report on inquiry into operation of ALR Act, August 1999

CLC Central Land Council

Commissioner Aboriginal Land Commissioner

DME NT Department of Mines and Energy

DRET Commonwealth Department of Resources, Energy and

Tourism

DSEWPC Commonwealth Department of Sustainability, Environment, Water, Population and Communities

EIA Extractive Industry Association of the NT Inc

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EL Exploration licence. Unless the context otherwise indicates,

an EL includes an Exploration permit under the Petroleum Act (NT)

ELA An application for an EL

ELR Exploration licence in retention, as defined in the MT Act

EMEL Extractive mineral exploration licence, as defined in the

MT Act

FaHCSIA Commonwealth Department of Families, Housing, Community Services & Indigenous Affairs

GE Act Geothermal Energy Act (NT)

ILUA Indigenous Land Use Agreement

Interested parties The entities who made submissions in writing to the Commissioner in relation to the Review

Manning Report Report of Dr Ian Manning, National Institute of Economic and Industrial Research, into review of ALR Act under National Competition Policy Review, August 1999.

MCA Minerals Council of Australia

Minister Commonwealth Minister for Families, Housing,

Community Services & Indigenous Affairs (unless there is an indication otherwise)

ML Mineral lease, as defined in the MT Act

MT Act Mineral Titles Act (NT)

MT Regs Mineral Titles Regulations 2010 (NT)

Native Title land Land over which there is either a registered claim for the determination of native title rights and interests, or a determination of native title rights and interests under the NT Act.

NLC Northern Land Council

NNTT National Native Title Tribunal

Non-Aboriginal land Land which is not Aboriginal land, which in the NT is almost entirely Native Title land

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NT Northern Territory of Australia

NT Act Native Title Act 1993 (Cth)

NT Mining Minister NT Minister for Mines and Energy

PE Exploration permit, as defined in the Petroleum Act (NT)

Reeves Report Report of Mr John Reeves QC into the operation of the ALR Act, August 1998

Second Report Second Report of Woodward Commission, published on 3 May 1974

SS Act Northern Territory Aboriginal Sacred Sites Act (NT)

TLC Tiwi Land Council

Toohey Report “Seven Years On” Report of the Hon Justice Toohey, Aboriginal Land Commissioner into the operation of the ALR Act, 2 December 1983

Toro Toro Energy Ltd

Woodward Commission Commission of Inquiry into Aboriginal Land Rights in the Northern Territory, conducted pursuant to Letters Patent issued on 8 February 1973

Woodward Commission Draft Act Drafting instructions for proposed legislation, contained in Second Report of Woodward Commission

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TERMS OF REFERENCE

Review of Part IV of the Aboriginal Land Rights (Northern Territory) Act 1976

Background

Part IV (Mining) of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act) provides for an administrative regime to control exploration and mining on Aboriginal land in the Northern Territory.

The Aboriginal Land Rights (Northern Territory) Amendment Act 2006 (the Amendment Act) implemented reforms to the Land Rights Act arising from three reviews of the principal Act over nine years, prior to 2006. A summary of those reviews follows.

A review of the Land Rights Act by John Reeves QC in 1998 resulted in a report containing recommendations for an extensive suite of changes to the legislation. That report was referred to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (HORSCATSIA) for review. The subsequent HORSCATSIA report of August 1999 concurred with some of the findings by John Reeves QC, but did not endorse the recommendations contained in his report.

Concurrent with the HORSCATSIA review, the Aboriginal and Torres Strait Islander Commission appointed the National Institute of Economic Industry Research to do a competition review of the Land Rights Act. The resulting “Manning Report” was also provided in August 1999.

Subsequently, a process led by consultant Mr Bill Gray was initiated to develop a range of workable measures flowing from the various reports. This led ultimately to the Aboriginal Land Rights (Northern Territory) Amendment Bill 2006. The relevant Explanatory Memoranda provides more detailed background information and analysis of

relevant issues.

The relevant amendments were not confined to Part IV of the Land Rights Act. In respect of the amendments to Part IV embodied in the Amendment Act, the objective was to promote economic development on Aboriginal land by providing for expedited and more certain processes related to exploration and mining on Aboriginal land.

The Amendment Act included, at Item 234 of Part 3, the requirement for an independent review of the operation of Part IV of the Land Rights Act as soon as practicable after the fifth anniversary of the amendments coming into operation. The amendments came into operation on 1 July 2007 and the independent review should therefore commence as soon as practicable after 1 July 2012.

In conjunction with the passage of the Amendment Act, complementary amendments were made to Northern Territory mining legislation

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Terms of Reference

• Commence an independent review of Part IV of the Land Rights Act on 10 September 2012.

• Publicly advertise the review and invite submissions from interested parties.

• Establish direct communication with the following key stakeholders for the purpose of inviting them to participate in the review process:

• Northern Land Council

• Central Land Council

• Anindilyakwa Land Council

• Tiwi Land Council

• Northern Territory Government (in particular, the Department of the Chief Minister, the Department of Mines and Energy and the Department of the Attorney-General and Justice)

• Commonwealth Department of Resources, Energy and Tourism

• Commonwealth Department of Environment, Water, Population and Communities

• Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs

• Minerals Council of Australia - NT Division

• Australian Petroleum Production and Exploration Association

• Extractive Industry Association, Northern Territory

• Association of Mining and Exploration Companies

• Ascertain the views of sectoral stakeholders on:

• the extent to which the amendments to Part IV of the Land Rights Act, enacted in 2007, achieved the stated objectives of the legislation, to promote economic development on Aboriginal land by providing for expedited and more certain processes related to exploration and mining on Aboriginal land;

• the extent to which the provisions of Part IV are, in operation, consistent with the provisions of other parts of the Act;

• the extent to which the delegation of some Part IV powers to the Northern Territory Mining Minister, subsequent to the most recent amendments to Part IV, have resulted in administrative and procedural efficiencies;

• the extent to which Commonwealth and Northern Territory legislation, relevant to exploration and mining on Aboriginal land in the Northern Territory, operates to promote compatibility and procedural efficiencies;

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• the extent to which Part IV operates to impose costs and confer benefits upon stakeholders;

• the extent to which the operation of Part IV may restrict competition;

• the potential for amendments to Part IV that would contribute to more efficient administration and improved outcomes in respect of exploration and mining on Aboriginal land in the Northern Territory; and

• such other matters as may be pertinent to the review.

• No later than 31 December 2012, provide the Minister for Families, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP, with a written report suitable to be tabled in both Houses of Parliament.

Review Report - Contents

• Record the terms of reference for the review and processes by which stakeholders were engaged in the review.

• Identify the key sectoral stakeholders with an interest in the operation of Part IV of the Land Rights Act.

• List the groups, individuals and representative organisations consulted during the review, and the nature of their interest in the operation of Part IV of the Land Rights Act.

• Summarise the views of key sectoral stakeholders on the operation of Part IV of the Land Rights Act, including suggestions for legislative amendments or procedural changes which would contribute to improved outcomes and efficiencies.

• In response to the review findings, and by reference to the objectives of the principal legislation, provide comment on the operation of Part IV of the Land Rights Act, including recommendations, if appropriate, for legislative amendments or procedural changes which would contribute to improved outcomes and efficiencies, would be likely to have broad support amongst sectoral stakeholders and would be consistent with the objectives of the Land Rights Act.

• Attach and index any written submissions received in respect of the review.

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ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976

REPORT ON

REVIEW OF PART IV OF THE ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976

EXECUTIVE SUMMARY

1. The Review consulted all key stakeholders mentioned in the Terms of Reference.

2. Unlike previous Reviews of the ALR Act, which found the operation of Part IV to be a contentious topic, the submissions provided to the Review did not indicate that there was ongoing significant disquiet on the part of any section of the key stakeholders. As would have been expected, there were various matters

raised about the Part IV processes and operations, but with few exceptions they concerned matters of relative detail rather than of deep concern or of policy.

3. The main matter of policy significance that was the subject of submissions concerned the right of traditional Aboriginal owners to veto the grant of an EL, simply by refusing to consent to it: s 42(6)(a). That position was contrasted with the situation which applies to non-Aboriginal land under the NT Act. It was a matter raised by only one mining representative body. The proposal to abolish the veto was strongly resisted by the Land Councils and was not supported by the NT Government or by FaHCSIA. The Review does not support the proposed change.

4. The material before the Review did not indicate a significant change in the number of ELAs over Aboriginal land, or indeed in the NT generally since the 2006 Amendment Act, compared to the period prior to that time. Nor did it indicate any significant change in the number of ELs granted in those comparative periods. It is not possible, therefore, to conclude that the level of economic activity on Aboriginal land has been enhanced by the 2006 Amendment Act. Clearly, on the other hand, there has been no downturn in such activity.

5. Somewhat incongruously, given that the area of Aboriginal land and non-Aboriginal land in the NT are roughly equal, the overall data about ELAs and ELs shows that since about 2006 there have been many more ELAs applied for and ELs granted over non-Aboriginal land than Aboriginal land. There are at least

two possible explanations for that: the absence of a veto power to the recognised owners of non-Aboriginal land, or the attitude of the NLC to ELAs over non-Aboriginal land. Put simply, in relation to ELAs over non-Aboriginal land

the NLC does not routinely take steps to assess or resist ELAs, but rather applies its resources to the point where (if at all) there is an ML application.

6. That data gave rise to two matters discussed in the Report:

(1) the merit of restricting the veto to any application for an ML, as distinct from an EL;

(2) the economic value of ELs to traditional Aboriginal owners over Aboriginal land.

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7. The Review did not consider it appropriate to recommend (1) for reasons which appear in the Report. It is a matter which might be further considered. The Review did not explore (2). It was not directly raised in formal submissions by any party. Obviously, there are benefits to traditional owners by way of the financial payments associated with an EL, but some anecdotal evidence suggested

that they were “standard” amounts, built on previous agreements and well known to the Land Councils, and were not sufficient to provide traditional owners with the opportunity for any real economic development or employment or like opportunities.

8. That matter - that is, the assessment of the nature and extent of economic benefits flowing from ELs to traditional owners of Aboriginal land - was not explored in submissions to the Review. It would be a detailed task. Its outcome may provide the context for reconsidering whether the veto power might be refined in some way, and for further assessing the benefits of the present provisions which

provide for conjunctive or disjunctive EL/ML agreements. The Review has not recommended that further investigation simply because the key stakeholders did not really address it in formal submissions.

9. In relation to the more technical issues, the debate mainly concerned the processes by which ELAs are considered in respect of Aboriginal land. Those processes have been reviewed and re-jigged by previous Reviews and legislative amendments to the ALR Act, culminating in the 2006 Amendment Act. Despite the practical consequence of those recent amendments being that, generally, an EL is consented to by the Land Council only if the terms of any consequential ML are agreed at that time, there were not strong views that the conjunctive agreement option should be removed. There is considerable delay and expense in the conjunctive agreement process, mainly with little benefit simply because ELs rarely lead to an ML application. The alternative for a Land Council if it has consented to an EL, and there is then an ML application is, however, to expose

the traditional owners to an arbitrated access outcome if the terms of the ML cannot be agreed. The decision to consent to the EL under s 42(6)(a) means that the veto right has not been exercised. The recommendations therefore merely suggest some means of expediting that process and making it cheaper.

10. The recommendations then relate to a number of other matters which may also expedite the process of assessing an ELA and responding to it, or of making the process less expensive. In particular, the “junior” miners were interested in that outcome because it is the nature of their business that - at least commonly - the junior miner which discovers a mineral resource will either sell-on the benefit of its work or ‘partner’ another larger miner in the ML application and mining process.

11. Finally, the recommendations address a number of uncontentious “tidying up” matters variously raised in the submissions.

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LIST OF RECOMMENDATIONS

Recommendation 1: That amendment to the ALR Act aimed at encouraging applicants to comply with the time limit set out in s 41(2) be considered.

Recommendation 2: That s 41 of the ALR Act be amended to require the relevant Land Council to notify the NT Mining Minister of the date upon which it received an application from the applicant.

Recommendation 3: That the ALR Act be amended to permit an applicant, with the written consent of the Land Council, to amend an application to a Land Council under s 41(1), and that any such amendment be forthwith notified by the Land Council to the NT Minister who shall have 28 days thereafter to disallow the amendment.

Recommendation 4: That s 42(13) be amended so as to permit negotiating parties to agree to extend the negotiating period initially by two years or a shorter period, rather than two years, and subsequently by 12 months or a shorter period, rather than 12 months.

Recommendation 5: That s 42 be amended so as to permit negotiating parties to agree to extend a special negotiating period determined under s 42(18) by 12 months or a shorter period.

Recommendation 6: That s 42 be amended so that:

(a) the Land Council be required to convene such meetings as it considers “appropriate” rather than “necessary” with traditional Aboriginal owners; and

(b) the Land Council and the applicant may agree to waive the requirement to conduct meetings in accordance with s 42(4).

Recommendation 7: That Land Councils and the relevant representative bodies for exploration and mining companies give consideration to the negotiation of a shorter pro forma exploration agreement for use in Part IV negotiations, with a particular focus on the elimination of terms and security requirements that merely duplicate pre-existing

statutory obligations.

Recommendation 8: That s 42(4) be amended by adding a requirement that the applicant must pay all costs reasonably incurred for all meetings convened under that section.

Recommendation 9: That consideration be given to the benefit of securing the Minister’s consent, and, if it is assessed that it does not add “quality” to the decision making process, to the possible repeal of ss 40(a)(ii), 42(8), (8A), (9), and (10) and other consequential amendments.

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Recommendation 10: That, in the alternative to Recommendation 9, s 42 of the ALR Act be amended so as to require the applicant to provide a copy of the agreement entered into by the Land Council and the applicant as to the terms and conditions to which the grant of the exploration licence is subject, and the ALR Act further be amended so that

the 30 days within which the Minister’s determination must be made runs from the date of receipt of the copy of the agreement.

Recommendation 11: That s 46(1)(a)(viii) be amended so that the quantity of environmental information in relation to a proposed mining works that needs to be included in a s 46 mining proposal be the same as that environmental information that is required to be provided under NT environmental legislation.

Recommendation 12: That ss 40(b) and 43 be repealed. It is a matter of policy whether some provision equivalent to s 40(b) and supporting provisions should be enacted in relation to proposed MLs.

Recommendation 13: That ss 44A(1) to the extent that it prohibits its terms and conditions which provide for compensation for the value of minerals removed or proposed to be taken from the land be repealed.

Recommendation 14: That Part IV be made exempt from the application of s 27(3) so that the Minister’s consent is not required both in relation to the payment of over $1,000,000 and in relation to the granting of the EL or ML.

Recommendation 15: That s 19(11)(a) be repealed insofar as it purports to include extractive mineral titles within the definition of “estate or interest in land”.

Recommendation 16: That a new section be added to the ALR Act requiring that an extractive mineral title not be granted unless the Land Council has given notice to the NT Mining Minister that it is satisfied of all the matters set out in s 19(5). Consequential amendments to the MT Act may also be necessary.

Recommendation 17: That the Minister’s powers under ss 47(1)(d) and 47(3)(a) be excluded from delegation to the NT Mining Minister under s 76(2), and that a requirement to consult the NT Mining Minister be added to s 47(3).

Recommendation 18: That consideration be given to incorporating provisions into the ALR Act similar to those set out in s 24MD of the NT Act for dealing with the grant of access to authorities.

Recommendation 19: That s 75, relating to miner’s rights, be repealed.

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Recommendation 20: That titles issued under the Geothermal Energy Act (NT) be brought within the operation of Part IV, by including:

(a) geothermal exploration permits under the definition of “exploration licence”; and

(b) geothermal retention licences under the definition of “exploration retention licence”.

Recommendation 21: That amendments to s 48(1A) and s 3 be made as recommended in this Report in order to ensure separate moratorium provisions run in relation to geothermal energy title applications.

Recommendation 22(1): That the definitions of “extractive mineral” and “mineral” in s 3 be amended so that they reflect the definitions of those terms contained in ss 10 and 9 respectively of the MT Act.

Recommendation 22(2): That the definition of “exploration licence” in s 3 be amended so that references to “prospecting authorities” are removed, and extractive mineral titles are specifically excluded.

Recommendation 22(3): That the definition of “exploration retention licence” in s 3 be amended so that it refers to exploration licences in retention under the MT Act, and extractive mineral titles are specifically excluded.

Recommendation 22(4): That the definition of “mining interest” in s 3 be amended so that extractive mineral titles are specifically excluded.

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PROCESS OF CONSULTATION

12. On 14 August 2012, the Minister requested, pursuant to s 50(1)(d) of the ALR Act, that the Commissioner undertake this Review.

13. On 7 September 2012, a letter was sent to key stakeholders with an interest in the operation of Part IV of the ALR Act. The letter requested that the stakeholders provide a brief outline of any particular matters they thought should be addressed, along with other details. The letter enclosed the Terms of Reference. A copy of that letter is included as Appendix A to this Review.

14. The key stakeholders who received the letter were those entities identified in the Terms of Reference as key stakeholders, namely:

• the two Aboriginal representative bodies established on the recommendation of the First Report of the Woodward Commission, the Northern Land Council (NLC) and Central Land Council (CLC). These two bodies are Land Councils for the purposes of the ALR Act, and they remain the two principal Land Councils, with responsibility for most of northern Northern Territory (NT)

and central NT respectively. As Land Councils for the purposes of the ALR Act, they are integral to the functioning of Part IV. They are responsible for consultation with traditional owners, negotiation with exploration licence (EL) and mining interest applicants, and the ultimate decision as to whether or

not consent should be given to an application.

• the two Land Councils that have been subsequently established under the ALR Act, the Tiwi Land Council (TLC) and the Anindilyakwa Land Council (ALC). They have responsibility for the Tiwi islands and the Groote Eylandt archipelago respectively. These two bodies are also, of course, Land Councils for the purposes of the ALR Act and thus have all the attendant

responsibilities and rights under Part IV in respect of their regions.

• the NT Government (in particular, the Department of the Chief Minister, the Department of Mines and Energy and the Department of the Attorney-General and Justice). The NT Government makes laws in respect of mining in the NT, is the owner of all minerals in the NT, and is given responsibilities and powers under Part IV of the ALR Act (both principally and by delegation), notably the power to give consent to an applicant to negotiate with a Land Council in order to obtain consent for an EL.

• the Commonwealth Department of Resources, Energy and Tourism (DRET), being the branch of Federal Government responsible for resources.

• the Commonwealth Department of Sustainability, Environment, Water, Population and Communities (DSEWPC), being the branch of Federal Government responsible for the environment.

• the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), being the branch of Federal Government responsible for indigenous affairs. The Minister of this Department has

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various powers and responsibilities under Part IV of the ALR Act, including, notably, the responsibility for granting the final consent required for an EL in respect of Aboriginal land.

• the Minerals Council of Australia - NT Division (MCA), a representative body comprised of Australian mineral companies. Its members thus consist of companies who have applied, or are likely to apply, for ELs in respect of Aboriginal land, and thus be subject to the processes stipulated in Part IV of

the ALR Act.

• the Australian Petroleum Production and Exploration Association, a representative body comprised of Australian oil and gas exploration and production companies. Its members thus consist of companies who have applied, or are likely to apply, for ELs (as broadly defined in the ALR Act) in respect of Aboriginal land, and thus be subject to the processes stipulated in Part IV of the ALR Act.

• the Extractive Industry Association of the Northern Territory Inc (EIA), a representative body comprised of companies whose business is conducted in the NT and involves the extraction and processing of sand, gravel and crushed stone products. Although, strictly speaking, extractive mineral operations are not encompassed within Part IV of the ALR Act, such operations are encompassed within other provisions of the ALR Act, and it is sensible to consider extractive minerals alongside non-extractive minerals, even if, in a strict sense, extractive minerals do not fall within the Terms of Reference.

• the Association of Mining and Exploration Companies (AMEC), a representative body comprised of Australian mineral exploration and mining companies. Its members thus consist of companies who have applied, or are likely to apply, for ELs in respect of Aboriginal land, and thus be subject to

the processes stipulated in Part IV of the ALR Act.

15. From 10 to 12 September 2012, an advertisement was published in various newspapers requesting that any person or organisation that wished to be heard in relation to the Review should give written notice to the Commissioner. The newspapers the advertisement appeared in were the Australian, the Northern Territory News, the Centralian Advocate, and the Katherine Times. A copy of the

advertisement is included as Appendix B to this Review.

16. Responses to these advertisements were received from the following entities, in addition a number of the key stakeholders who responded to the letter of 7 September 2012:

• the Aboriginal Areas Protection Authority (AAPA); and

• Australian Mining and Exploration Title Services.

17. In addition, Toro Energy Ltd (Toro), a member of AMEC, responded to the letter of 7 September 2012 in an individual capacity.

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18. After receipt of the preliminary submissions from key stakeholders and the above-mentioned respondees (together, the interested parties), a further letter was sent to the interested parties on 30 October 2012, enclosing a brief memorandum of all preliminary responses thus far received, and inviting the interested parties to participate in interviews.

19. From 12-16 November 2012, interviews were conducted in Darwin for those interested parties that had expressed a wish to participate in such an interview. Interviews were conducted with the following parties:

• the NT Government;

• the MCA; and

• the AAPA.

20. At this point it became apparent to the Commissioner that the reporting date for the Review of 31 December 2012 was one which might impede the satisfactory completion of the Review, as some interested parties were concerned that there was insufficient time for their fully-considered views and submissions to be

provided to and carefully considered by the Commissioner, and that as a result the Commissioner might have incomplete submissions and limited time to consider and consult in relation to them. The Commissioner requested, and the Minister promptly granted, an extension to 29 March 2013 of the reporting date.

21. On 4 December 2012, the Commissioner sent a letter to the interested parties notifying them that the deadline for receipt of final submissions would be 15 February 2013. A list of those interested parties who sent formal submissions, and the dates upon which they were sent, is contained in Appendix C. Appendix D contains copies of the submissions themselves.

22. From 11-15 February 2013, further interviews were conducted in Darwin for those interested parties that had expressed a wish to participate in that way, or that the Commissioner wished to interview to expand upon matters raised in the submissions. This included ABM Resources NL, an exploration company that contacted the Commissioner in January 2013 and requested an interview. Interviews were conducted with the following parties:

• ABM Resources NL;

• the AMEC;

• the NLC; and

• the TLC.

23. Some further material requested by the Commissioner was subsequently provided by some interested parties. A further interview was conducted with representatives of the NT Government on 1 March 2013.

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24. Throughout the consultation process, all participants were co-operative, helpful, and supportive in their accommodation of requests from the Commissioner for further information or materials, and their willingness to engage in genuine and frank discussions with the Commissioner on matters on which the Commissioner

sought their views.

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BACKGROUND TO THE PRESENT REVIEW

Woodward Commission

25. On 8 February 1973, the Federal Government issued Letters Patent that required Justice Edward Woodward to conduct a Commission of Inquiry into Aboriginal Land Rights in the NT (Woodward Commission).

26. Those Letters Patent specifically required Justice Woodward to inquire into, and report upon:

“[t]he appropriate means to recognise and establish the traditional rights and interests of the Aborigines in and in relation to land, and to satisfy in other ways the reasonable aspirations of the Aborigines to rights in or in relation to land, and, in particular, but without in any way derogating from the generality of the foregoing:

(a) arrangements for vesting title to land in the [NT] now reserved for the use and benefit of the Aboriginal inhabitants of [the NT], including rights in minerals and timber, in an appropriate body or bodies, and for granting rights in or in relation to that land to the Aboriginal groups or communities concerned with that land;

(b) the desirability of establishing suitable procedures for the examination of claims to Aboriginal traditional rights and interests in or in relation to land in areas in the [NT] outside Aboriginal reserves or of establishing alternative ways of meeting effectively the needs for land of Aboriginal groups or communities living outside

those reserves;

(c) the effect of already existing commitments, whether in the nature of Crown leases, Government contracts, mining rights or otherwise, on the attainment of the objects of recognising and establishing Aboriginal traditional rights and interests in or in relation to land;

(d) the changes in legislation required to give effect to the recommendations arising from (a), (b) and (c) above…”

27. Two reports were delivered by Justice Woodward. The First Report was published on 19 July 1973. It recommended the establishment of the CLC and NLC. In all other respects, however, it was essentially what might be termed an ‘issues paper’ - it set out the relevant issues and called for submissions. The Second Report was

published on 3 May 1974. It contained the majority of the recommendations of the Woodward Commission.

28. The first of the recommendations contained in the Second Report is that: “Aboriginal land rights legislation should be introduced into the Australian Parliament. It should not be capable of being affected by Northern Territory Ordinances.”1

29. The Second Report contained suggested drafting instructions for what it called the “Aboriginal Land (Northern Territory) Act 1974” (Woodward Commission Draft Act). Those instructions set out the basic scheme for the establishment

1 Second Report, p.134 [777].

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of Aboriginal land trusts and the grant of NT lands to those trusts. That scheme was to provide the foundation for what became the Aboriginal Land (Northern Territory) Bill 1975 (1975 Bill).

30. The Second Report specifically addressed the issue of mineral rights in some detail. Justice Woodward commented that: “Of all the questions I have had to consider, that of mineral rights has probably caused me the most difficulty and concern.” 2

31. The newly-established CLC and NLC made forceful submissions to the Woodward Commission on the mining issue. They submitted that NT Aboriginal peoples must be granted “full ownership of minerals on their traditional lands”. The Land Councils in effect submitted that without full ownership of minerals,

the benefits of land grants would be largely illusory: “To grant to Aboriginal communities with the one hand a title to their land and to take from them with the other the capacity to regulate or prevent the entry upon that land of other persons to conduct what may turn out to be extensive mining operations, may be to largely destroy the rights being given.”3

32. On the other hand, the now-defunct Australian Mining Industry Council (AMIC) made the simple point that:

“[Australia’s mining] wealth belongs to the whole community. No landowner should be in a position to lock away such valuable resources, and this is the present position in Australia.”4

33. AMIC went on to submit that Aboriginal peoples should not be granted “any measure of mineral ownership. Nor should [they] be given the right of veto as against the Crown over access to the mineral within their lands.”5

34. Justice Woodward agreed with the Land Councils that: “[T]o deny to Aborigines the right to prevent mining on their land is to deny the reality of their land rights. I find it quite impossible to inspect [current mining] developments [on the traditional lands of Aboriginal peoples] … and to say that such developments, without consent, could be consistent with

traditional land rights for Aborigines.”6

But His Honour also agreed with AMIC that “the general approach adopted in this country that minerals belong to all the people” should be upheld.7

35. Ultimately, Justice Woodward was not minded to accede to either the Land Councils’ or the AMIC’s recommendations - respectively, to grant Aboriginal peoples full ownership of minerals, and to deny Aboriginal peoples any measure of control over mining occurring on their traditional lands (at least not beyond what might be available to an ordinary freehold landowner).

2 Ibid, p.99 [537].

3 Central Land Council submission to Woodward Commission, quoted in Second Report at p.100, [548].

4 Second Report, p.102 [559].

5 Ibid.

6 Ibid, pp.103-104 [568].

7 Ibid, p.110 [616].

12

36. Instead, Justice Woodward made the following recommendations:

“(i) Minerals and petroleum on Aboriginal lands should remain the property of the Crown.

(ii) However Aborigines should have the right to prevent exploration for them on their traditional lands.

(iii) This Aboriginal power of veto should only be over-ridden if, in the opinion of the Government, the national interest requires it.

(vii) If mining or petroleum companies are seeking exploration licences over Aboriginal lands these applications should be processed, as in the past, by the appropriate government departments.

(viii) However, before any such licence is granted, both the regional Land Council and the Minister of Aboriginal Affairs should be asked to consent.

(ix) The Land Council would conduct all negotiations, and give or refuse its consent on behalf of the traditional owners and any communities likely to be affected by the application, as well as having its own power of veto in the matter.

(x) Matters to be negotiated, if the Aborigines concerned are prepared to consider the proposal, would include payments for exploration rights, royalty payments and, perhaps, an equity interest in the venture.

(xi) Other matters for negotiation would include the protection of sacred sites, Aboriginal employment and the setting up of appropriate liaison arrangements between Aborigines and the company.

(xii) As a basis for the negotiation the company should produce a statement showing as clearly as possible just what the Aborigines are being asked to agree to at the respective stages of exploration, proving, development and production.”8

These recommendations were given effect in Part VII of the Woodward Commission Draft Act. Part VII contained four clauses:

37. Clause 36 is closely analogous to s 40 of the present ALR Act. It states that no mining interest in Aboriginal land may be granted without the relevant Land Council’s and Minister’s consent, or a proclamation of the Governor-General. A “mining interest” included an EL and an ML. So consents were required at

both the exploration and mining stage. Therefore, the Woodward Commission Draft Act mandated what became known as “disjunctive agreements” (separate agreements for exploration and mining).

38. Clause 37 has no equivalent in the present ALR Act. It provides that a proclamation of the Governor-General made under clause 36 may, within a time limit, be disallowed by a resolution of either House of Parliament.

39. Clause 38 also does not appear to have an equivalent in the present ALR Act. It provides that a person applying for a mining interest (from hereon in, a person applying for an EL or mining interest will simply be referred to as an applicant) is entitled to agree to pay a royalty rate to a Land Council above the rate prescribed by the then-relevant NT mining ordinance.

8 Ibid, pp.122-123 [708].

13

40. Clause 39 is analogous to s 48J of the present ALR Act. It makes it an offence to make any payment to any Aboriginal person in connection with the grant of a mining interest, other than statutory rental payments.

Adoption of Woodward Commission recommendations

41. In 2 July 1974, Prime Minister Gough Whitlam announced that the Federal Government had accepted in principle the recommendations of the Woodward Commission’s Second Report.

42. The 1975 Bill was introduced into the House of Representatives by the Whitlam Government’s Minister for Aboriginal Affairs, Leslie Johnson, on 16 October 1975.

43. The 1975 Bill was largely based on the Woodward Commission Draft Act. In his Second Reading speech, Mr Johnson explained that: “The Bill … gives Aboriginals the power of veto over mining developments on Aboriginal land, but provides that any such veto may be over-ridden, if such action is required in the national interest and

if a proclamation to that effect is not disallowed by either House of Parliament after the proclamation has lain before the House for 15 sitting days.”9

44. The 1975 Bill contained a Part VI dedicated to “Mining Interests and Mining Operations”. It adopted the essential elements of the scheme set out by the Woodward Commission.10 However, it provided greater detail than that provided in the Woodward Commission Draft Act.

45. In summary, the 1975 Bill built upon the Woodward Commission Draft Act in the following ways:

• It explicitly stated that legislation authorising mining for minerals does not apply so as to authorise a person to enter, remain on, or do any act on Aboriginal land unless a proclamation was made by the Governor-General to the effect that the Minister and Land Council had consented to the application

of the relevant legislation, or that the application of the relevant legislation was in the national interest.11

• It explicitly preserved the right of mining interest holders to enter or remain on, or do any act on Aboriginal land if it was “in connexion with an occupation or use of the land that commenced before the land became Aboriginal land.”12

9 Commonwealth, Parliamentary Debates, House of Representatives, 16 October 1975, p.2224, (Mr Les Johnson).

10 Cl 57 of the 1975 Bill substantially reproduced cl 36 of the Woodward Commission Draft Act, cl 71 substantially reproduced cl 37, and cl 59(2) substantially reproduced cl 39.

11 cl 58(1).

12 cl 58(2).

14

• It clarified that it is lawful for an applicant to agree to pay a Land Council a sum of money in consideration of the Land Council’s giving consent to the granting of the applicant’s mining interest.13

• It required a holder of a mining interest in respect of Aboriginal land to pay royalties to the Crown at a rate fixed by the Minister and the Land Council (if the mining interest was consented to by the Minister and the Land Council), or by the Minister alone (in any other case). The fixed rate must not be less favourable to the Crown than the rate that would otherwise have been fixed by

the relevant NT law.

• It set out a number of matters of which the relevant Land Council must be satisfied before consenting to the grant of a mining interest, namely, that the traditional owners of the relevant land understand the nature and purpose of the proposed grant and do not oppose it; that any affected Aboriginal community or group has been consulted and had adequate opportunity to express its view; and that the terms and conditions of the grant are reasonable.14

46. The 1975 Bill passed the House of Representatives, and was on the notice paper for presentation to the Senate on 11 November 1975. That date happened to be the date upon which Governor-General Sir John Kerr dismissed Prime Minister Gough Whitlam and prorogued Parliament. Consequently, the 1975 Bill lapsed.

47. The new Fraser Government introduced the Aboriginal Land Rights (Northern Territory) Bill 1976 (1976 Bill). This Bill was broadly similar to the 1975 Bill, but included some significant changes. The part of the 1976 Bill that concerned mining had become Part IV. After undergoing some amendments, the 1976 Bill was passed and assented to on 16 December 1976.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)

48. The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act) came into force on Australia Day 1977. Part IV of the ALR Act as first enacted consisted of nine sections, sections 40 to 48.

49. The enacted Part IV retained many essential elements of the 1975 Bill,15 but built upon the 1975 Bill and altered its initial purpose in the following ways:

• It provided that an EL applicant may, in negotiation with the Land Council, make a proposal not only in relation to exploration for minerals on the relevant land, but also a proposal in relation to the subsequent recovery of any minerals that might be found as a result of the exploration. If the Land

13 cl 59(1).

14 cl. 61.

15 Section 40(1) of the original ALR Act substantially reproduced cl 57 of the 1975 Bill, s 41 substantially reproduced cl 58, s 42 substantially reproduced cl 71; s 43(1) substantially reproduced cl 59(1); ss 47(1), (2), and (3) substantially reproduced cls 59(2), (3), and (4); and s 48 substantially reproduced cl 61.

15

Council and Minister, having considered both proposals, consent to the EL, the applicant does not need the subsequent consent of the Land Council and Minister for a later grant of a different mining interest in respect of the same land (i.e. an ML) that is in substantial accordance with the prior proposal.16 However, it also provided that such a subsequent mining interest will not

be granted unless there is an agreement under seal between the relevant Land Council and applicant “containing … terms and conditions … having regard to the effect of the grant of the mining interest on Aboriginals”. That agreement might include a requirement for payment of monies to the

Land Council.17 These provisions, therefore, essentially set out an optional “conjunctive agreement” process, where consent could be given to both exploration and mining at the exploration stage, although separate agreements as to the terms and conditions of the exploration and mining were still of

course required.

• Significantly, it provided for the Minister to be given the power to appoint an arbitrator when a Land Council refuses or is unwilling to consent to a grant of a mining interest “by reason that the applicant for the grant will not enter into an agreement proposed by the Land Council as consideration for the giving of its consent to the grant.” The arbitrator will determine the terms of a fair agreement between the Land Council and the applicant. The Land Council would then be obliged to accept the agreement and consent to the mining interest. If it refused, the Minister could consent on the Land Council’s

behalf.18 This provision appeared to greatly weaken the originally-envisioned veto right.

• It further provided for like arbitration provisions to apply wherever a Land Council refused or was unwilling to enter into agreements for other ALR Act-related purposes (ss 43(2) and 44(2)).19

• It clarified that it is lawful for a Land Council to agree to accept a sum of money from the Commonwealth in consideration of the Land Council’s giving consent (under s 41) to the application of some mining law to Aboriginal land.20

• It required that where a mining law has been declared applicable to Aboriginal land without the consent of the relevant Land Council, the relevant mining law will not apply until an agreement is made between that Land Council and the Commonwealth for the payment of money to the Land Council.21

16 s 40(2).

17 s 43(2).

18 s 45.

19 s 46.

20 s 44(1).

21 ss 44(2), (3).

16

The Toohey Report

50. By 1983, a great number of amendments had already been made to the original ALR Act. Four of those amendment acts had affected Part IV of the ALR Act,22 but the only amendment of any real note was the addition of a s 46A.23 Section 46A expressly permitted agreements between Land Councils

and applicants to deal with the issuing of permits to applicants for accessing Aboriginal land for purposes related to a granted mining interest.

51. In September 1983, the Minister for Aboriginal Affairs, Clyde Holding, requested that Justice Toohey, Judge of the Federal Court of Australia and Aboriginal Land Commissioner, undertake a review of the operation of the ALR Act in the first seven years of its existence.

52. On 2 December 1983, Justice Toohey presented his report, entitled “Seven Years On” (Toohey Report). The report dealt with issues pertaining to mining and Part IV of the ALR Act in some depth. A number of the problems raised related to the effect of the ALR Act’s introduction upon existing mining projects and similar ‘teething problems’. Such parts of the report are of merely historical interest.

22 See Aboriginal Land Rights (Northern Territory) Amendment Act 1978 (Cth); Aboriginal Land Rights (Northern Territory) Amendment Act 1980 (Cth); Companies (Miscellaneous Amendments) Act 1981 (Cth); Statute Law (Miscellaneous Amendments) Act (No 2) 1982 (Cth).

23 Aboriginal Land Rights (Northern Territory) Amendment Act 1980 (Cth), s 8.

17

53. More relevant recommendations of the Toohey Report included:

• Changes to the provisions facilitating conjunctive agreements.24 If miners wished to avoid seeking a second consent at the mining stage, they were forced to enter a conjunctive agreement. This caused difficulties because miners had to adhere to proposals for mining that they had made to Land Councils before they had even explored the potential mining site. The Toohey Report recommended that applicants be permitted to propose a range of options for mining, rather than merely one proposal, to enhance flexibility for applicants. It also recommended that where an applicant chose to make

a disjunctive agreement, that applicant still be given a statutory guarantee that it will be given priority should consent be given to a subsequent mining interest.25

• Minor amendments to the arbitration provisions, relating to the appointment of arbitrators and the matters to be considered by the arbitrator.26

• Amendments relating to providing access to and ancillary rights in respect of Aboriginal land where necessary for the purpose of a granted mining interest.27

The 1987 Amendments

54. Some of the recommendations of the Toohey Report were promptly acted upon by the Federal Government. However, those recommendations relating to mining were deferred for some time by the Federal Government to enable further consultation with Land Councils and mining groups.28

55. Eventually, in 1987, Part IV was substantially amended by the Aboriginal Land Rights (Northern Territory) Amendment Act (No 3) 1987 (Cth) (1987 Amendment Act).29 The Minister for Aboriginal Affairs, Clyde Holding, heralded it as the implementation of a “new regime to cover exploration and mining on Aboriginal

land”.30 Echoing Justice Woodward’s comments 13 years earlier, Minister Holding noted that exploration and mining was “[t]he single most controversial aspect of the Act over the last five years”. 31 Minister Holding noted that only one agreement under the ALR Act had so far been made between a Land Council and an applicant. The amendments were thus principally aimed at increasing the viability of making such agreements.

24 See, eg, ALR Act as at 1983, s 40(2).

25 Toohey Report, pp.83-84.

26 Ibid, pp.92-93.

27 Ibid, pp.94-97.

28 Commonwealth, Parliamentary Debates, House of Representatives, 22 October 1986, pp.2570-2571 (Mr Allan Clyde Holding).

29 Other minor amendments included the Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth) and Aboriginal Land Rights (Northern Territory) Amendment Act (No 2) 1987 (Cth).

30 Commonwealth, Parliamentary Debates, House of Representatives, 3 June 1987, p.3874 (Mr Allan Clyde Holding).

31 Ibid.

18

56. The 1987 Amendment Act made the following changes to Part IV of the ALR Act:

• It mandated conjunctive agreements (the pre-1987 ALR Act had permitted conjunctive agreements only as an alternative to the default disjunctive agreement process). Land Council consent was now only required at the exploration stage - once consent was given to an EL, mining interest applicants did not need to obtain consent for subsequent grants of MLs on the same land. But it required separate agreements to be made between the relevant Land Council and the applicant at both the exploration and mining stages.32

• It introduced a more structured, regulated process through which a Land Council’s initial consent would be obtained. First, the consent of the NT Mining Minister to negotiate with the Land Council would be obtained. Then, an application for the consent of the relevant Land Council could be made.33 The application would be made within a prescribed time limit34 (which could

be extended)35 and would contain prescribed content.36 If the prescribed time limit was not met, the NT Mining Minister’s consent would be deemed withdrawn, and the applicant would have no right to negotiate with the Land Council.37

• It further introduced a more structured, regulated process for a Land Council to follow before giving consent. After the submission of an application, the Land Council had 12 months to consider that application (with provisions permitting the extension of time by agreement of the parties, or at the Minister’s discretion upon the Land Council’s request).38 As part of its consideration of the application, the Land Council was required to notify39 and hold meetings with traditional Aboriginal owners of the relevant land,40 which the applicant and the Minister (or representatives thereof) were entitled

to attend.41 It was also required to be satisfied of certain matters, including that the traditional owners understand the proposal.42 If a Land Council had neither consented nor refused to consent after the 12 month period (or the extended time period), the consent of the Land Council would be deemed to have been given.43

32 ALR Act as at 1987, ss 45, 46.

33 Ibid, s 41(1).

34 Ibid, s 41(2).

35 Ibid, s 41(4).

36 Ibid, ss 41(5), (6).

37 Ibid, s 41(3).

38 Ibid, ss 42(13), (14), (15).

39 Ibid, s 41(7).

40 Ibid, ss 42(2), (3), (4).

41 Ibid, ss 42(4), (5).

42 Ibid, s 42(6).

43 Ibid, ss 42(1), (7).

19

• It required that, where Land Council consent to an ELA had been refused, a five-year moratorium would apply to all ELAs in respect of the relevant Aboriginal land.44 However, the Minister would maintain discretion to overturn the moratorium in certain circumstances, at the request of the

relevant Land Council, which request could only be made after at least two years.45

• It required that, where a Land Council does consent, the Minister’s consent is also required before the ELA is accepted.46

• It further required that, where a Land Council consents, but no agreement upon the terms and conditions is reached between the applicant and the Land Council within the 12-month (or extended) time period, the parties may either agree to appoint a conciliator or request the Minister to appoint a ‘mining commissioner’ to conduct a conciliation.47 Where consent is not given, but deemed, only the latter option will be available. If the conciliation is fruitless, the mining commissioner will determine the terms and conditions

by arbitration. The arbitrating mining commissioner would have reference to a defined list of criteria to consider in determining the terms and conditions. Where the applicant is willing to enter into the agreement as decided by the arbitrator, the Land Council will be required also to enter into that

agreement.48

• It provided a power to the Minister, in consultation with the NT Mining Minister, to cancel an EL or ML over Aboriginal land in some rare circumstances.49

• It also introduced a structured, regulated process for reaching an agreement at the ‘mining stage’ - that is, when the holder of an EL granted under the ALR Act wants to obtain an ML. As mentioned above, a second consent was not required for an ML, but a second agreement was.50 At the mining

stage, the applicant would submit a statement to the Land Council outlining the proposed mining activity.51 The parties then had 12 months to reach an agreement (the time period could be lengthened in some circumstances).52 The Land Council was required to consult with traditional owners and allow

the applicant to explain its proposal.53 If no agreement is reached within the time limit, either party may request the Minister to refer the matters in dispute

44 Ibid, ss 48(1), (9).

45 Ibid, s 48(3).

46 Ibid, ss 42(8), (9), (10).

47 Ibid, ss 42(11), (12).

48 Ibid, s 48E.

49 Ibid, s 47.

50 Ibid, s 45.

51 Ibid, s 46(1).

52 Ibid, s 46(3).

53 Ibid, s 46(4), (5), (6).

20

to conciliation by a mining commissioner (who would be a Federal Court judge),54 and if the conciliation is fruitless, the mining commissioner will arbitrate the agreement.55

57. Further minimal amendments were made to Part IV in 1990.56

The Reeves Report

58. In October 1997, John Reeves QC was appointed by the Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, to review the operation of the ALR Act. A voluminous report was duly produced in August 1998 (Reeves Report).

59. The Reeves Report included a chapter on “Exploration and Mining”. Reeves observed that this was a “highly controversial aspect of the Act” that had “caused great dissent and bitterness among Territorians” and had developed into “what now borders on an impasse”.57 Reeves found that “[t]he 1987 amendments to the Act did not overcome the deficiencies in the system,” 58 and expressed a great deal

of general dissatisfaction with the current Part IV of the ALR Act.

60. In light of these and other findings, the Reeves Report included the following recommendations:

• The repeal of those parts of Part IV that Reeves deemed too prescriptive and thus inimical to freer negotiations between mining interests and Aboriginal people. The relevant sections included those such as s 46, which “spells out the conditions for granting a mining interest … and includes provisions for resolving disputes…” It was felt that such matters should be left to the

negotiating parties to determine.59

• As part of this purge of overly-prescriptive sections of the ALR Act, the repeal of the moratorium provisions.60

• Amendments allowing traditional owners to be free to engage external legal advisors (other than Land Councils) if they so choose.61

• Amendments providing that low-level ‘reconnaissance’ ELs be exempt from the veto.

• Amendments providing a simple and easy means of renewing existing MLs over Aboriginal land.

54 Ibid, ss 46(7), (8).

55 Ibid, ss 46(9), (11).

56 Aboriginal Land Rights (Northern Territory) Amendment Act 1989 (Cth).

57 Reeves Report, p.513.

58 Ibid, p.539.

59 Ibid, pp.536-537.

60 Ibid, p.537.

61 Ibid, p.540.

21

• The diminution of the NT Government’s role in the Part IV process, so that no initial consent to negotiate needs to be obtained from the NT Mining Minister before a proposal is put to a Land Council.

61. Many of the other recommendations related to the adaptation of Part IV to operate within Reeves’ broader proposed scheme, wherein the existing Land Councils were to be abolished and replaced with new bodies. That broader scheme was never adopted by the legislature, and so those recommendations are

omitted here.

The ATSIA Committee Report

62. Shortly after the publication of the Reeves Report, in December 1998, Senator Herron referred the Reeves Report to an inquiry by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (ATSIA Committee).

63. The ATSIA Committee published its report in August 1999 (ATSIA Committee Report).

64. The ATSIA Committee Report:

• Agreed with the Reeves Report’s recommendations regarding removing prescriptions about the content of agreements made under Part IV. It recommended that all such prescriptions be removed from the ALR Act.62

• Agreed with the Reeves Report’s recommendation that traditional owners be free to engage their own advisors.63

• Disagreed with the Reeves Report’s recommendation that the moratorium provisions be repealed, but recommended that the NT Government grant the NT Mining Minister powers to withdraw that Minister’s consent to negotiate if satisfied that an applicant is not negotiating in good faith. Other mining companies would then be able to apply for consent to negotiate. This recommendation was intended to prevent a practice known as ‘warehousing’, whereby applicants negotiate in bad faith and deliberately invoke the

moratorium so as to prevent competitors from exploring the relevant land.64

• Agreed with the Reeves Report’s recommendations regarding low-impact ‘reconnaissance’ licences not being subject to the veto, but recommended that this was best achieved by changes to NT law to remove such low-impact activities from the definition of “exploration”. 65

62 ATSIA Committee Report, p.98 [6.42].

63 Ibid, p.102 [6.56].

64 Ibid, p.104 [6.63].

65 Ibid, p.108 [6.80].

22

• Disagreed with the Reeves Report’s recommendation that the NT Government be effectively stripped of its role in the consent process. It felt this move might have negative unintended consequences and might diminish transparency and accountability.66

65. The ATSIA Committee Report further recommended that Land Councils be permitted to delegate their powers under Part IV of the ALR Act to regional committees or councils if they so choose.67

Manning Report

66. At the same time as the ATSIA Committee Report was published, a review of Part IV was undertaken by Dr Ian Manning of the National Institute of Economics and Industry Research as part of the Federal Government’s national competition policy review of legislation that may restrict competition. The review was commissioned by the Aboriginal and Torres Strait Islander Commission in January 1999. The report of that review (Manning Report) was published in August 1999.

67. The Manning Report found that the operation of Part IV was improving and recommended incremental changes, rather than the broader ‘deregulation’ proposed by the Reeves Report.

68. Specifically, the Manning Report recommended that:

• the time for negotiation of agreements be fixed at two ‘field seasons’ (a ‘field season’ is the seven months between April and October, which excludes the wet season and busy ceremonial times) with the possibility of extensions, rather than 12 months; and

• measures be taken to improve relations between the Land Councils and the NT Government.

2006 Amendment Act

69. All of these reviews - that is, the Reeves Report, the ATSIA Committee Report, and the Manning Report - were not acted upon by the Parliament until 2006, when, following further consultation, the Aboriginal Land Rights (Northern Territory) Amendment Act 2006 (Cth) (2006 Amendment Act) was passed.

70. The principal objectives of the 2006 Amendment Act were stated to be the improvement of access to Aboriginal land for development, particularly mining, the establishment of devolved decision-making structures for Aboriginal people, and the improvement of the socioeconomic conditions of Aboriginal people.68

66 Ibid, p.105 [6.70].

67 Ibid, p.101 [6.51].

68 Explanatory Memorandum, 2006 Amendment Act, p.3.

23

71. The amendments made to Part IV by the 2006 Amendment Act adopted some of the reforms suggested in the three reports that had been undertaken, but also incorporated some additional ideas. The main thrust of the amendments was a focus on targeted, incremental reforms of the application process to ensure efficiency and fair competition.

72. The principal amendments were as follows:

• The alteration of time limits for making applications for Land Councils’ consent after receiving the NT Mining Minister’s consent to negotiate. Applicants have three months to make their application following the NT Mining Minister’s consent. This could be extended to a maximum of six

months at the discretion of the NT Mining Minister.69

• The relaxation of the Land Councils’ notification requirements. Upon receiving an application for consent, the Land Council no longer had to notify affected Aboriginal communities within a strict time period (but still had to arrange meetings with them).70 Upon deciding such an application, the Land Council had to provide written notification, specifying the date of the decision, within 7 days of that date.71

• Similarly, the Minister’s consent to the grant of an EL was required to be in writing.72

• The repeal of the provision that a Land Council is deemed to consent to an application where the negotiation period ends.73 Instead, the NT Mining Minister’s consent to negotiate is deemed to be withdrawn.74

• The alteration of the time limits for negotiating an agreement. The standard negotiation period would be 22 months, or 2 ‘field seasons’ (rather than the previous 12 month initial period), which could be extended by agreement for 2 years, and then for further 12-month periods. However, the Minister (in consultation with the parties and NT Mining Minister) was given the power

to determine a deadline specifying the end of the negotiating period, at any time after the standard negotiating period ended.75 In the case of a lapsed application, where the Land Council did not make a decision in time, a repeat, substantially identical application by the same party would be given a “special negotiating period” determined by the Minister of not more than 12 months.76

69 2006 Amendent Act, sch 1, items 106-107.

70 Ibid, sch 1, item 109.

71 Ibid, sch 1, items 111-113.

72 Ibid, sch 1, item 116.

73 Ibid, sch 1, item 115.

74 Ibid, sch 1, item 113.

75 Ibid, sch 1, item 119.

76 Ibid.

24

• The introduction of separate moratorium periods for petroleum and mineral ELAs, so that if a petroleum exploration permit application is rejected, mineral ELAs are still able to be made in respect of the same land.77

• Easing of the strictness of moratorium periods, so that a Land Council can apply to the Minister to lift a moratorium at any time, rather than only after two years of the moratorium, as was previously the case.78

• Provision for the Minister to delegate most of his or her Part IV-related powers to the NT Government, except the power to override the veto in the national interest.79

• Provision for the extension of Land Councils’ ability to delegate almost any of its powers and functions to a specially-established committee or bodies corporate.80

73. The amendments came into operation on 1 July 2007.

74. The 2006 Amendment Act required the Minister to arrange for an independent review of the operation of Part IV of the ALR Act after the amendments had operated for 5 years.81 In August 2012, in accordance with this requirement, the Minister for Families, Community Services and Indigenous Affairs, the Hon Jenny Macklin MP, requested that a review of Part IV be undertaken. This is the

report of that review.

77 Ibid, sch 1, item 133.

78 Ibid, sch 1, item 136.

79 Ibid, sch 1, item 202.

80 Ibid, sch 1, items 61-64.

81 Ibid, sch 1, item 234.

25

SUMMARY OF VIEWS AND ISSUES

75. The Terms of Reference of this Review required that the views of key stakeholders be sought on a list of specific issues. This summary of the views of the interested parties, and the issues arising from them, therefore deals in turn with each of those specific issues raised by the Terms of Reference, and the interested parties’ views in relation to them

1. Achievement of objectives of the 2006 Amendment Act

76. The relevant stated objective of the 2006 Amendment Act was to promote economic development on Aboriginal land by providing for expedited and more certain processes related to exploration and mining on Aboriginal land. The submissions of the interested parties to this Review on this topic tended to fall within two main categories - submissions on the state of economic development

on Aboriginal land, and submissions on the speed of processes relating to exploration and mining on Aboriginal land.

77. With regard to economic development, the MCA and the AMEC both submitted that there has been “no material increase in the promotion of economic development on Aboriginal land resulting from the amendments.” The MCA points out that “[i]t is widely recognised and well documented that Aboriginal people in the Northern Territory are socially and economically disadvantaged as a group.” The AMEC made submissions to the same effect, and cited in support of this assertion the 2007 Little Children are Sacred report, written by the NT Government’s Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse. AMEC further referred to a paper by Jon Altman entitled “Indigenous communities, miners and the state in Australia”, published in the

2009 text, Power, Culture, Economy - Indigenous Australians and Mining, which sets out the social and economic advantages of mining to Aboriginal people.

78. On the other hand, the CLC sought to draw attention to the economic conditions that have prevailed since the commencement of the 2006 Amendment Act - in particular, the effects of the global financial crisis and of historically high commodities prices. To this end, the CLC commissioned a report by consultant and academic Dr Hugh Saddler comparing trends in exploration in the NT with trends elsewhere. That report concluded that the level of NT exploration activity and expenditure has been healthier than that in other states during the global financial crisis.

79. With regard to the speed of the Part IV processes, the CLC provided graphs and statistics to argue that the speed of the Part IV processes has in fact increased since the Part IV amendments of 2007. Figure 1 of the CLC’s submission demonstrates that the average time it takes for the CLC to deal with an ELA has reduced each year for the past five financial years (dating back to the commencement of the amendments in 2007). However, Table 1 of the CLC’s submission indicates that in the years prior to 2007, the average time taken to

26

process an ELA was (in some years) lower than it is now, and (in all recorded years) much lower than it was in 2007-2008. Figure 2 records a surge in consents to ELAs in 2010-011 and 2011-2012.

80. The NLC also briefly cited some statistics, demonstrating that the average processing time for applications in the past six years (2007-2012) is less than half of what it was for the preceding six years (2001-2006). It also sought to draw comparisons between the speed with which ELAs are dealt with in relation to Native Title land (land subject to a claim for, or determination of, native title rights and interests under the NT Act). The NLC noted the MCA’s 2012 submission to the Attorney-General regarding proposed amendments to the NT Act. In that submission, the MCA stated that the average time for negotiations to obtain an EL under the NT Act is 39 months. The NLC notes that the average time within which the NLC deals with an ELA under the ALR Act is almost half that time.

81. However, the NT Government also provided statistics and graphs in its submissions as evidence that, inter alia, “it is more costly and less timely to obtain consent to grant on Aboriginal freehold land.” While the NT Government accepted that some improvements have been made by the changes introduced by the 2006 Amendment Act, it submitted that the Part IV process “remains … complex and prescriptive”. Its graphs and statistics largely suggest that there has been no discernible increase or decrease in the average time taken to grant an EL over land to which Part IV of the ALR Act applies since 2006, and that the Part IV process remains more cumbersome than processes applicable on non-Aboriginal land. For instance, the NT Government noted, the average time to grant an EL on Aboriginal land is currently around 54 months, while on non-Aboriginal land it is nine months. Moreover, there are significantly less ELAs and EL grants on Aboriginal land (which constitutes about half of all NT land), but more outstanding applications.

82. The MCA submits that in light of the 2006 Amendment Act the ALR Act processes have remained “procedurally inefficient and lack[ing in] transparency …; economically inefficient … [and] relatively expensive…” No statistics are provided by the MCA, although some anecdotal and unascribed evidence is given

as to “reports of some instances where significant time and expense has been spent on negotiating exploration agreements for a decision by the [traditional owner] group to reject exploration (apparently for philosophical reasons and not due to any issue in relation to the terms of the proposed exploration agreement)”.

83. The AMEC unfavourably compared ALR Act processes with NT Act processes: “the timing for obtaining the grant of an [EL] under the expedited procedure set out in the [NT Act] is generally within 3 months compared to what we believe is an average of around 2 to 3 years on Aboriginal land.”

84. The ALC suggested that “frustration within the extractive and mining industry” regarding the ALR Act processes was probably due to the lack of resources of those bodies “responsible for protecting the interests of [t]raditional [o]wners…” in the face of “rapid growth in mining and exploration in the past 5 years”, rather than deficiencies with the ALR Act processes themselves.

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2. Part IV’s consistency with other provisions of the ALR Act

85. While the first issue raised by the Terms of Reference provoked very broad-ranging discussions in the submissions, the second issue by contrast attracted discussion on much more specific issues.

86. Most interested parties appeared to either explicitly or implicitly agree with the NT Government’s assessment that “[i]n general, the provisions of Part IV appear consistent with other parts of the ALR Act.” Some parties, such as the MCA, sought to emphasise that it would be artificial and unhelpful to assess Part IV in isolation from the rest of the ALR Act.

87. The specific issues raised by the interested parties in relation to this heading are outlined below.

Section 27

88. Section 27(3) requires a Land Council to obtain the approval of the Minister before entering into a contract involving a payment of over $1 million. The AMEC submitted that it is unclear whether s 27(3) only relates to contracts involving Aboriginal land, or whether it also relates to contracts involving

non-Aboriginal land, such as Native Title land. The AMEC submitted that s 27(3) has the former effect, not the latter effect. However, it submitted that this position should be clarified.

89. The MCA also made a submission in relation to s 27(3). It submitted that the $1 million cap should be lifted to a higher amount, or done away with. The cap, it submitted, is seen as restrictive by both Land Councils and applicants. At the least, the MCA suggested that it ought to be indexed for inflation.

Section 19 and extractive mineral titles

90. The EIA submitted that s 19 of the ALR Act presently applies to extractive minerals, rather than Part IV. Section 19 governs dealings with interests in land generally by Land Trusts. The EIA submitted that extractive minerals should not be dealt with under s 19 or Part IV of the ALR Act. To that end, it recommended

that s 19(11), which brings extractive minerals within s 19’s operation, be repealed. Further, it submitted that amendment should then be made to both the ALR Act and the MT Act to establish new, separate provisions exclusively governing extractive minerals.

91. The present s 19 does not require, in the EIA’s submission, any agreement to be reached with the relevant Land Trust or Land Council. However, NT Government practices and the MT Act both appear to assume that there is such a requirement in s 19. The EIA therefore submitted that the ALR Act first be amended so as to make it explicit that no such agreement need be reached in respect of an extractive mineral title, and that it is “in the sole discretion of the [NT] as to whether an extractive [mineral] title may be granted over Aboriginal land.

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92. In addition, the EIA submitted, the MT Act should be amended to provide that the NT Government (presumably through the NT Mining Minister) should impose “appropriate and adapted conditions” on the grant of the extractive mineral title that require “steps to be taken to ensure the protection of indigenous heritage and

culture.” Further, the NT Mining Minister’s grant of an extractive mineral title should “be based on”:

• “the requirements for compensation for the deprivation and damage to land that is payable to a Land Trust under the … MT Act”; and

• “compliance by the extractive operator with the other provisions of the MT Act and the Mining Management Act (NT) … and the Northern Territory Aboriginal Sacred Sites Act (NT) ...”

93. The EIA also submitted that the ALR Act should include a “voluntary scheme … to facilitate the entry into agreements between extractive [mineral] operators and Land Trusts” in the event that such an agreement was seen as desirable by the extractive mineral operator. The EIA explained that, notwithstanding that

agreement is not, in its view, required by the ALR Act, agreement may still be desired by extractive mineral operators in order to “ensure … Land Trusts are fairly compensated”, “promote good working relationships with … the Land Trust”, ensure that access to the area of the extractive mineral title (which might

require crossing other Aboriginal land) can be gained, and deal with sacred sites issues. This “voluntary scheme” would:

• “provide timeframes and other controls over the negotiating period” to ensure agreements were timely and inexpensive; and

• provide a method by which “deadlocks” between Land Trusts and extractive operators may be resolved, either by arbitration or referral to the Minister for a final determination of whether the extractive mineral title should be granted.

94. The NT Government also submitted that s 19 of the ALR Act lacked clarity in its application to extractive minerals. Unlike the EIA, however, it submitted that s 19 should remain as “the authority for extractive minerals”. The NT Government argues merely for amendment to s 19 to enhance its clarity.

95. The NT Government further submitted that it should be clarified that extractive mineral exploration licences (EMELs), a new form of extractive mineral title introduced by the MT Act, are dealt with under the ALR Act in the same way as extractive mineral permits and leases (that is, under s 19).

3. Has delegation to the NT Mining Minister resulted in efficiencies?

96. This issue did not provoke strong submissions from the interested parties.

97. As might be expected, it was the NT Government that was most concerned by this issue. It submitted that, with the exception of the NT “[obtaining] a greater understanding of the [Part IV] process and [the] difficulties in obtaining consent”, little benefit (or detriment) has been gained from delegating administrative

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functions to it. The NT noted that in a recent meeting, the CLC’s and NLC’s feedback on the “current level of cooperation” was positive. In its submission, the NLC assessed the delegations as having a merely “neutral” effect. The AMEC reported that the delegations have not had any benefits, although it noted that

it nonetheless supports greater delegation in the future. The MCA submitted that it maintained “concerns around the timeliness, lack of transparency and inefficiencies of the [Part IV] regime, despite the delegation of some functions … to the [NT] Mining Minister”.

98. The CLC was more enthusiastic, describing the delegations as having resulted in “significant administrative and procedural efficiencies.” The CLC echoed the NT Government in its submission that the delegations have enabled the NT Government to “[develop] greater insight into the intricacies of the consultation process”, and that that greater insight has been beneficial for all parties.

99. Despite its general approval of the delegations, the CLC did raise one specific matter of concern. The CLC submitted that the delegation to the NT Mining Minister of the Minister’s role under s 47 of the ALR Act “over stepped the mark” and should be “revised”. Section 47 grants the Minister the power to cancel an EL or mining interest in certain circumstances. Under s 47(1)(d) (in conjunction with s 47(1)(b)(ii)), the Minister is required to determine whether exploration works are likely to have a significant impact on the affected land and on Aboriginals. The CLC submitted that that is a matter outside the purview of the NT Mining

Minister’s responsibility and expertise, and is properly a matter for the Minister. Moreover, the CLC submitted that the NT Mining Minister’s making such a determination could generate a perception of bias, given that the NT Mining Minister is responsible for advancing the mining sector in the NT.

100. The CLC also submitted that the final Minister’s consent to a grant of an EL or mining interest should be retained by the Minister and not delegated (it is not presently delegated). The CLC submits that this is an important ultimate safeguard which it would not be proper for the NT Mining Minister to exercise.

101. The NT Government also raised a specific issue. It noted that it is not funded to carry out the delegated functions, and recommended that the funding for the delegated functions ought properly to be shared between the NT and Federal Governments, rather than being borne solely by the NT Government.

102. Finally, the TLC raised a further issue. It submitted that the delegation of the NT Mining Minister’s principal or delegated roles to DME employees was potentially problematic. This is because Land Councils are not provided with any evidence that the relevant power being exercised has been duly delegated to the relevant employee. As such, the TLC proposed that, where a delegate is used, “there should be a requirement for that delegate to provide written evidence of their authority to the Land Council.” This would ensure certainty for the Land Council in its dealings. The TLC further proposed that “decisions … made under the [MT Act are] isolated from any decisions that need to be made under the ALR Act.” This would “ensure that a wider range of perspectives are involved” in the

decision, and that appropriate “checks and balances” are maintained.

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4. The extent to which relevant Commonwealth and NT legislation operate to promote compatibility and procedural efficiencies

103. The CLC and NLC submitted that the relevant legislation was generally compatible and procedurally efficient.

104. The NT Government suggested that “the provisions of [the ALR Act] may be less efficient for some commodities as opposed to others.” By this is meant that petroleum exploration permits (PEs) (presently governed by Part IV) occupy geographical areas much larger than mineral ELs (also governed by Part IV). Having the same negotiation and consultation procedures for both types of titles is said to impose a much more onerous burden on parties dealing with a PE application, as the larger area usually means there are large numbers of traditional owners to consult, and so such negotiations and consultations are typically longer and costlier. However, the NT Government had no specific recommendation to

make in respect of this issue other than that “any amendment to [the ALR Act] be flexible enough to accommodate the different title types.”

105. The NT Government submitted that titles issued under the Geothermal Energy Act (NT) (GE Act) should be brought within the operation of Part IV, as this would provide a “consistent approach for all resource activities.” This would also require s 48 (regarding moratoriums) to be amended, so that separate

moratoriums operated in respect of geothermal, petroleum, and mineral mining interests.

106. The CLC and NLC also submitted that geothermal energy titles should be brought within the operation of Part IV, arguing that “the activities involved in the search for and development of infrastructure for capturing geothermal power closely resemble the activities associated with oil and gas exploration and development. From a landowner perspective the activities look almost identical.” The DRET

also agreed that geothermal energy titles should be brought within Part IV of the ALR Act. It noted that s 36 of the GE Act already envisages geothermal energy titles falling within Part IV of the ALR Act.

107. The NT Government submitted that there was room for procedural efficiencies to be promoted by making the MT Act and ALR Act more compatible. A number of interested parties made submissions on that point.

Confirm effect of s 84 of the MT Act and reg 76 of the MT Regs

108. The AMEC made a submission relating to s 84 of the MT Act and reg 76 of the MT Regs. Together, those provisions require an applicant for an access authority over Aboriginal land to obtain the consent of the relevant Aboriginal Land Trust. The applicant may challenge a refusal of consent in the Lands, Planning

and Mining Tribunal on the basis that the refusal was unreasonable. If the Tribunal finds the refusal was unreasonable, the access authority can be granted notwithstanding the withholding of consent. These provisions, the AMEC notes,

are “contrary to the protection afforded Aboriginal people under the [ALR Act].” As such, AMEC recommended that the ALR Act should be amended to make it

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clear that access authorities may be granted under the scheme set out by s 84 of the MT Act and reg 76 of the MT Regs. The MCA made a materially identical submission in regard to these provisions.

Repeal s 75 of the ALR Act

109. The MCA submitted that s 75 of the ALR Act (not within Part IV) ought to be repealed. Section 75 concerns a “miner’s right”. There is no such title under present NT mineral titles legislation (the MT Act). Moreover, there is concern that the definition of “miner’s right” might unintentionally encompass mineral titles under the MT Act. The CLC and NLC agree that s 75 is now “superfluous” and should be removed. The AMEC also submitted that s 75 should be removed for the same reasons.

Amend criteria for granting EL (and thus consent to negotiate) and related notification provisions

110. The TLC submitted that the broad discretion granted to the NT Mining Minister under the ALR Act in determining whether to grant consent to negotiate is inappropriate. The broad discretion is limited only by the criteria that the NT Mining Minister must consider under the MT Act in determining whether to grant an EL (and thus whether to grant consent to negotiate). At present, they consist only of the “necessary criteria” specified in s 58 of the MT Act. Those criteria are easily, and usually, fulfilled. They do not take account of the strain that the grant of a consent to negotiate places upon the relevant Land Council, due to the fact that once a consent to negotiate is granted, the relevant Land Council is required to carry out the consultation requirements. The TLC therefore proposed that the NT Mining Minister be required to have regard to:

• “the number of ELAs currently granted consent” (presumably what is meant is the number of ELAs currently granted consent to negotiate for which the affected Land Council has responsibility);

• “the land area (and its current use) that the ELA covers”;

• “the total land area of the relevant Land Council that is currently subject to ELAs”;

• “the economic and community burden that the ELA will have (especially in conjunction with any already existing ELAs)”;

• “the past decisions of the Land Council in relation to other ELAs” (presumably this criterion is proposed because it is suggested that where there have been a string of ELAs in relation to a particular area, and each has been rejected by the Land Council, the NT Mining Minister ought to be more reluctant to issue a new consent to negotiate in respect of that same area); and

• “the submissions of the Land Council in relation to the ELA”.

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111. The final criterion refers to the TLC’s related submission. That submission is that the current notification and consultation process provided for by the MT Act in regard to ELAs is “inadequate because it does not formally invite the affected Land Council to voice its opinions on the ELA. Instead, Land Councils

are forced to constantly review the newspapers… [T]he [TLC] does not have the resources nor the time to be able to constantly monitor the newspapers.” The TLC therefore proposed that affected Land Councils should be invited by the NT Mining Minister “to prepare a submission in response to the ELA.” This would

ensure that Land Councils can “put forward their arguments against the granting of consent … and … ensure that the opinions of the traditional Aboriginal landowners are considered at all stages of [the] application.”

Greater recourse to the SS Act in Part IV negotiations

112. The AAPA made a detailed submission regarding the AAPA’s role under the Northern Territory Aboriginal Sacred Sites Act (NT) (SS Act) and how the SS Act, through the AAPA, effectively protects the sacred sites of traditional owners. It argues that provisions in exploration agreements relating to sacred sites largely duplicate protections already afforded to sacred sites under the SS Act. Moreover, it submits that the SS Act is the preferable means to protect sacred sites, because, inter alia, it “provides for decisions regarding the protection of sacred sites to be made independently from considerations regarding land access and land use.”

113. It should be noted that the EIA gave a contrary opinion, albeit only in passing, while discussing a different issue. The EIA stated that “sacred sites protection issues … are generally better dealt with in agreements with traditional … owners (through Land Trusts) due to reduced timing and costs issues when compared with obtain[ing] a sacred sites clearance from the [AAPA].” It should be noted,

however, that the EIA is not speaking of Part IV agreements (as extractive mineral titles are not governed by Part IV).

114. The AAPA did not make any specific proposals for legislative amendment to resolve the suggested duplication. Instead, it called for “[g]reater recourse to the [SS Act] in Part IV negotiations”, “a collaborative approach between the AAPA and Land Councils” to be mandated, and “[p]rovision for the role of the AAPA and the use of the [SS Act] in a ‘lead agency’ model for Part IV related sacred site matters”.

Update definitions

115. Numerous interested parties suggested that particular definitions in the ALR Act be updated to reflect the changes in NT mineral titles regulation effected by the MT Act. The relevant definitions were:

• “mining interest” - the EIA recommended that this definition be altered so as to clarify that it does not include EMELs. The EIA believed that there was potential for ambiguity on this point, because only interests “relating to the mining or development of extractive mineral deposits” are excluded from this

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definition, and an EMEL may not be classified as such. The NT Government submits that paragraphs (b) and (c) of this definition, as well as its reference to exploration retention licences, are all redundant;

• “extractive mineral” - the EIA and NT Government recommended that this definition be updated to reflect the slightly-different definition of “extractive mineral” in the MT Act. The present ALR Act definition reflects the terms of the old Mining Act definition;

• “mineral” - the NT Government submitted that this definition should be updated to align with the definition of “mineral” in the MT Act;

• “exploration licence” - the NT Government proposed that this definition be amended because it “includes references to redundant titles ss (a) to (d) inclusive.” The reference to “ss (a) to (d) inclusive” appears to imply the NT Government is of the opinion that the entire definition refers to redundant titles (as the definition consists of four paragraphs, labelled (a) to (d)). The NT Government submitted that instead the definition of an “exploration licence” should align with, and in fact replicate, the definition of that term in the MT Act (s 11), but retain references to the Petroleum Act (NT);

• “intending miner” - the NT Government submitted that this definition should not contain references to exploration retention licences, and that paragraph (b) should be considered for redrafting because it refers to redundant legislation; and

• “exploration retention licence” - the NT Government submitted that this term should be changed to “exploration licence in retention”, as that is now the term used in the MT Act, and the definition should be aligned to the definition of that term in the MT Act.

5. Costs and benefits to stakeholders of Part IV

116. This broader heading elicited some commensurately broader responses.

117. The NT Government set out the lack of benefits it feels are being delivered to traditional owners under the present scheme: “[A]boriginal land is largely unexplored, compared to both non-[A]boriginal land in the NT and prospective land in other parts of Australia. … [E]conomic opportunities for [traditional owners] arising from exploration are not being maximised in terms of immediate financial and work benefits …”

118. The benefits of exploration to traditional owners, the NT Government explained, include an annual EL rent paid to Land Councils (in the range of $10,000- $20,000 per EL per annum), a payment of 5-7% of expenditure by the applicant, upfront agreement fees, and the chance of finding a mine, which would bring further financial benefits and perhaps employment and other benefits. The MCA also emphasised the economic benefits of exploration for traditional owners.

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119. The CLC stressed that the benefits of the Part IV process to traditional owners do not consist merely of the money they stand to gain, but also the “social and cultural benefits” to traditional owners of the Part IV process, such as the ability to “take responsibility for their decisions and gain effective control of their land.”

120. The NT Government, CLC and MCA all noted that exploration on Aboriginal land has economic benefits not just for traditional owners, but for the NT generally.

121. The costs of the Part IV process to applicants are set out by the AMEC in its submission. They include:

• legal costs, arising from the “detailed and prescriptive regime [applicants] are required to understand” and the lengthy agreements Land Councils propose as EL agreements;

• anthropologist costs, required to determine who are the proper traditional owners and like questions, which are expected to be (but not required to be) borne by the applicant; and

• meeting costs, to facilitate the consultation with traditional owners, which are also expected to be (but also not required to be) borne by the applicant.

122. The NT Government added to this list: exploration compensation payments, the cost of negotiating agreements and other Land Council expenses, such as stamp duty, secretarial services, and travel costs, and costs of sacred site clearance surveys. The MCA submitted that the “ability to access Aboriginal land for the purposes of minerals exploration” remains “relatively expensive compared to accessing pastoral lease land for exploration”. It says that a typical ALR Act agreement costs “in the region of $100,000 to $300,000 (and sometimes

considerably more).” It suggested that in some cases traditional owners are able to employ their own legal and financial advisors, and that this renders some parts of the Land Council’s role an expensive, time-consuming and redundant duplication.

123. The CLC argued that the costs borne by applicants are necessary to safeguard the social and cultural benefits to traditional owners of having control over their traditional lands. It submitted that these benefits are often forgotten because of an unduly “mining centric viewpoint”. It further argued that the Part IV processes have fostered “productive partnerships” between traditional owners and applicants, and thus have reduced costly, time-consuming, and antagonistic disputes in relation to both Aboriginal and non-Aboriginal land. The NLC similarly submitted that a balance inevitably must be struck when determining the allocation of costs and conferral of benefits. It submitted that the balance presently struck under Part IV of the ALR Act is appropriate, “particularly given the unique cultural and historic circumstances of the [NT]”. The ALC also submitted that the costs borne by applicants in the Part IV process are necessary, as “[t]aking up an [ELA] is a commercial decision” made by an applicant, and it is “unrealistic to expect … [t]raditional [o]wners … to place … additional resources into this process.”

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6. The extent to which Part IV may restrict competition

124. The AMEC identified that the anti-competitive practice of ‘land banking’ still exists, or at least the AMEC identified that it is still possible to ‘land bank’ under Part IV as it presently stands. ‘Land banking’ is the practice of deliberately invoking the veto and the resultant moratorium so that a potential explorer

not yet ready to explore can ensure that no competitor can explore on the land in question in the meantime. No particular instances of land banking were identified by the AMEC, and it is not presented as a particularly pressing problem. It appears to be mentioned only to stress AMEC’s wider argument, made

throughout its submissions, that the Land Council’s ‘veto right’ over mining and exploration under Part IV should be abolished.

125. The CLC reiterated the findings of the 1999 Manning Report, which formed part of the National Competition Policy Review, and found that Part IV did impose some restrictions on competition, but that those restrictions were “essential to the achievement of the purpose of the ALR Act as a whole, and to the achievement of the purposes of Part IV.”

126. The AMEC informed the Commissioner that, in practice, the DME does not require that holders of ELs over Aboriginal land reduce the area of the EL every two years, as is ordinarily required by the MT Act. This concession is granted by the NT Mining Minister to holders of ELs over Aboriginal land because of the difficulty and costliness of gaining an EL over Aboriginal land in the first place. While AMEC noted that it supports this practice, it submitted that the practice

is nonetheless uncompetitive. Again, the AMEC does not provide any specific recommendation in relation to this problem, but raises the issue merely as another point in its broader argument for abolishing the veto.

127. The MCA also noted this issue regarding the NT Mining Minister’s non-enforcement of what it calls “ground turnover”, and the uncompetitive effects of that non-enforcement.

128. The NT Government reported that Part IV “may” restrict competition, “particularly for smaller companies”, because of the money, time, and effort required by the Part IV process, which may prove prohibitive for smaller companies, and the “duplication of government statutory processes in agreements

would be a disincentive e.g. securities, environmental considerations etc.” That latter issue is dealt with elsewhere in this Report.

7. The potential for amendments that would promote efficient administration and improved outcomes

129. This broad heading evinced most of the specific recommendations received in the course of this Review. Those recommendations ranged from the tweaking of minutiae to radical overhaul of the entire ALR Act.

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Removal of veto

130. The AMEC recommended that the best way to promote efficient administration and improved outcomes was through the removal of the power of veto and its replacement with a “right to negotiate” similar to that provided for under the NT Act.

131. The ALR Act veto right, the AMEC submitted, “entrenches Aboriginal disadvantage because it institutionalises the separation between remote Aboriginal communities and modern society and economies.”

132. On the other hand, the NT Act right to negotiate, it said, effectively benefits Aboriginal people by “allowing and, in some respects, motivating Aboriginal people to consider mining proposals … and the kinds of social and economic dividends that may flow to them from that mining.” The right to negotiate also

increases Aboriginal people’s “ability to participate in business and employment opportunities”, as well as “[exposing them] to the modern economy and working conditions.” The right to negotiate fulfils international human rights obligations, and grants Aboriginal people rights in respect of their land that are “above the rights of Torrens title holders”, but strikes a better balance between the protection of traditional rights and the promotion and advancement of Aboriginal peoples’ lives.

133. No other interested party argued that the veto right ought to be abolished.

134. In the alternative, the AMEC submitted that, if the veto were to stay, the standard negotiation period should be reduced from its present 22 months to six months. In this way, the ALR Act would at least be partially aligned with the NT Act (the right to negotiate process is limited to six months). The present standard period “provides no incentive for negotiations to be completed in a timely and cost

effective manner.”

Disjunctive agreements

135. There are three ways that “disjunctive agreements” were called for by various interested parties in this Review. First, some parties called for the abolition of s 41(6)(e), which requires exploration agreements “to specify details of commodities sought and modes of mining and recovery”. Second, some parties also called for the abolition of the practice whereby essential terms of any future mining agreement are inserted into the exploration agreement. Third, the TLC called for the reinstitution of completely disjunctive agreements, with separate vetos and separate agreements at the exploration and mining stage. Each of these

proposals are dealt with in turn.

136. First, the MCA proposed that the need “to specify details of commodities sought and modes of mining and recovery” at the exploration stage, required by s 41(6) (e), should be reconsidered. It stated that accurately specifying those details before even exploration has begun is a very complex matter.

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137. The AMEC submitted a proposal for a “two stage negotiation process” that, while somewhat unclear, appears also to call for the removal of the s 41(6)(e) requirement.

138. Toro made a similar submission. It argued that “[n]o company can predict what mineral commodity might be discovered in “greenfields” areas, nor what the ultimate style of mining and processing might be…” Toro further pointed out that “[e]xploration deeds provide veto powers to [t]raditional [o]wners on various levels, should the [applicant’s] actual discovery not match the envisaged

commodity or occurrence.” Toro submitted that this “veto power” “doesn’t provide much assurance for the Company.”

139. This reference to veto powers contained in exploration deeds is not expanded upon by Toro. However, the NLC and CLC interpreted this as a reference to a clause that is inserted into a “small number of exploration deeds” that gives the traditional owners the power to effectively “veto” any attempt to mine uranium if uranium is found in the course of exploration.

140. A similar submission on s 41(6)(e) was also made by the NT Government. It submitted that it is simply “not meaningful” to require the provision of information relating to potential methods of mining and so forth “at a point where exploration hasn’t even commenced, let alone discovery of a mine.”

141. The CLC and NLC opposed the removal of s 41(6)(e). They said that it “enables traditional owners to be fully informed” and is “not onerous or inappropriate”.

142. In relation to the second issue, many interested parties noted the practice that has arisen where essential terms relating to any future mining (such as royalty payments) are included in exploration agreements, far beyond those mining provisions required by s 41(6)(e). “These provisions are not explicit in the legislation,” says the NT Government, “but rather the result of … how the legislation is constructed.”

143. The NT Government noted that this practice causes delay and “overly complicate[s] the [exploration agreement] process”. Getting rid of this practice, the NT Government suggested, “could expedite the process to access land for exploration.” Roughly only one in a thousand ELs is said to result in a significant mine, but the present arrangement requires negotiations regarding that eventuality in every case.

144. The MCA submitted that the practice leads to “extremely convoluted” and “expensive” agreements, and suggested that the practice may even contravene s 44A(1) of the ALR Act, which forbids exploration agreements from containing provisions relating to “compensation for the value of minerals removed

or proposed to be removed from the land”. The AMEC’s unparticularised recommendation of a ‘two stage negotiation process’ may well also be a call to end the practice of inserting provisions about essential terms of mining into exploration agreements.

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145. On the other hand, despite its issues with this practice, the NT Government was willing to acknowledge that this practice is a natural consequence of the conjunctive consent presently provided for under the ALR Act (whereby only one consent is required in relation to exploration and mining), and that that

conjunctive consent provides much-needed certainty for applicants so that, in the event they do want an ML, they do not have to rely upon obtaining a further Land Council consent. However, the NT Government submitted that there has been a change in attitudes on the parts of applicants, Land Councils, and traditional owners since the ALR Act was drafted. The more co-operative approach that has developed means that at least some applicants would be willing to “forego the benefit of conjunctive consent in preference of [sic, for] a more

timely cost effective process.” The NT Government therefore recommended that the exploration agreement not contain provisions relating to mining, but the “conjunctive nature of the consent provisions remain” - that is, Land Councils should retain only one veto, at the exploration stage. However, by agreement,

parties could decide to enter into disjunctive agreements - that is, a separate veto exercisable at both the exploration and mining stage.

146. The CLC and NLC opposed all the suggestions to dispense with essential provisions about mining in the exploration agreement. They noted that it is merely a practice, and that there is no requirement in the ALR Act to include such provisions about mining. Instead, they are included “to provide assurance to traditional owners about what may happen at the mining stage, otherwise they would probably not agree to exploration.” They further claim that many applicants want mining provisions in the exploration agreement to enhance certainty.

147. Instead, the CLC and NLC propose that s 44A be amended so as to clarify the enforceability of mining provisions in exploration agreements. It is not entirely clear, but it appears that they have s 44A(1) of the ALR Act in mind as that is the section the MCA drew attention to in it submissions.

148. The third proposal, the TLC’s proposal, takes a different and more radical approach to this issue. The TLC argues that exploration and mining agreements ought to be entirely separate, and that Land Councils ought to have separate veto rights exercisable in respect of each stage. The TLC offers four reasons why the present lack of a veto right at the mining stage is wrong:

• it reduces the likelihood of traditional owners and the Land Council consenting to exploration, given that it is also a consent to mining;

• the “scope and intensity of mining activities, and the size of the potential mineral resources, are unknown at the time of consent [to exploration]”;

• traditional owner views on mining activities may change over time, “especially after the behaviour of a mining company in relation to its exploration activities has been witnessed”; and

• it is not “congruent” with s 23 of the ALR Act.

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Abolition of negotiation time limits

149. The NT Government suggested that deadlines within the Part IV process be completely done away with, and replaced with a new scheme reliant on oversight by the NT Mining Minister. That scheme is set out in a diagram in Attachment E to the NT Government’s submissions (contained in Appendix D to this Report). The NT Government argued that its statistics do not indicate that “a prescribed

negotiating period contributes to achieving either consent or veto”, as the average time period within which a Land Council decision is made exceeds the “standard negotiating period” of 22 months.

150. Instead, the prescribed time periods merely create more work for everyone - the Land Councils and applicants must agree in writing to extend negotiating periods, and the NT Mining Minister must constantly monitor the deadlines and withdraw consent to negotiate where they have been exceeded (often only then to re-issue it again). All of these tasks amount to “unproductive administrative process[es]”.

151. The proposed alternative process would operate as follows:

• once the applicant obtains the NT Mining Minister’s consent to negotiate and then submits its proposal, negotiations commence with the relevant Land Council;

• if two years have passed, and no outcome has been reached, both the Land Council and the applicant must report on the progress of the negotiations to the NT Mining Minister;

• a like report must be produced every 12 months following;

• if any such report indicates to the NT Mining Minister that either party is not negotiating in good faith, the NT Mining Minister may determine a deadline sometime within the next 12 months, within which time an outcome must be reached;

• if the deadline expires and no outcome is reached, the NT Mining Minister may either withdraw the consent to negotiate or direct the parties to mediation;

• if, at the end of the three-month mediation period, no outcome has been reached, the NT Mining Minister may withdraw the consent to negotiate.

152. The main benefit of this suggestion, the NT Government submitted, is the reduction in administration in “either arranging for an extension of time to the negotiation period or withdrawing and reissuing consent.”

153. The CLC and NLC opposed this proposal. They agreed the proposal has “superficial appeal”, but advocated that the status quo remain. They outlined two main advantages of the status quo:

• The “deemed withdrawal of consent to negotiate provision”: s 42(1B) operates such that if the negotiating period expires, the NT Mining Minister’s consent to negotiate is automatically deemed withdrawn, and thus the

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applicant’s application lapses. While in “nearly all cases”, the negotiating period will be extended by agreement of the parties to avoid the effect of s 42(1B), the provision is a useful, simple, and inexpensive way to deal with “non-active applicants” who are “not responding”. Under the NT Government’s proposal, the applications of such applicants would each have to be specifically considered by the NT Government and a determination

made about them. Under the present system, on the other hand, non-active applicants simply disappear.

• The standard negotiating period (22 months) “serves as an administrative tool for the Land Councils in terms of ordering and prioritising resources.”

154. In the alternative, the NT Government made a submission regarding how the negotiation time limit provisions could be improved. Section 42(15) presently enables the Minister to set a deadline for negotiations in some circumstances. This power is now delegated to the NT Mining Minister. The NT Government

submitted that this power has not been used because it is difficult for the NT Mining Minister to be in a sufficiently knowledgeable position vis-à-vis the negotiations to make such a decision. Despite these shortcomings, the NT Government proposed (if the present scheme is to remain in place) that s 42(15)

remain in its present form. It further proposed that provision be made enabling the Minister, where a time limit set under s 42(15) has expired, to appoint a mediator for a finite period, perhaps three months, to attempt to facilitate an agreement.

155. The TLC made some minor alternative proposals on the issue of time limits. It submitted that s 42(13) should permit parties to extend the negotiating period by agreement by any further time period not exceeding two years, rather than (as it now does) only permitting parties to extend the negotiating period by agreement by exactly two years.

156. Further, the TLC submitted that the three-month deadline to submit a proposal to the Land Council, running from the date the NT Mining Minister gives consent to negotiate, is essentially illusory. That is because if the deadline expires, the applicant can simply “request that the NT Mining Minister again grants consent to negotiate thereby reviving the lapsed application.” Also, the Minister can extend the three-month period by another three months.

157. The TLC therefore proposed that where “an applicant fails to submit a proposal within the required three month (or extended six month) timeframe, that applicant … be barred from being able to reset the submission period by again obtaining consent from the NT Mining Minister.” It further proposed that “any extension

of time to the standard three month submission period should require direct consultation with the relevant Land Council.”

Less prescriptive consultation requirements

158. The NT Government submitted that the present Land Council consultation requirements, obliging the Land Council to hold meetings in every case, are too prescriptive and should be replaced by a vaguer, more flexible set of requirements,

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such as that the Land Council must consult with the traditional owners and must, at the time of consent or veto, attest that the consultation has been complete and transparent. The NT Government argued that the meeting requirement does not account for circumstances where “the explorer is well known to the [traditional owners]”, or where a meeting would be prohibitively “costly, logistically difficult and time consuming”, and there are alternative ways in which the applicant could “present [its] case” to the traditional owners.

159. The CLC and NLC agree. They submitted that “[t]he Land Councils have statutory responsibility to ensure informed, group consent of traditional owners … and the choice on how this is achieved appropriately rests with the Land Council.” They note that technological advances have provided “new opportunities to

improve consultation capacity and reduce costs, over time.”

160. The TLC made submissions to a similar effect. It submitted that the meeting requirement contained in s 42(4) is vague and gives Land Councils little certainty as to whether or not they can be said to have satisfied it. The TLC suggested that s 42(4) should be amended so that Land Councils are not required to carry out further consultation meetings where a meeting has already been conducted, and an application refused, in relation to an ELA in respect of the same area in the

recent past. More generally, s 42(4) should not require meetings to be carried out where a Land Council already knows that the traditional owners are opposed to exploration on their traditional lands generally. The requirement to conduct meetings even in such circumstances is “economically wasteful and disruptive to the Aboriginal community.”

Greater governmental oversight of consultation meetings

161. The MCA and Toro submitted that amendments should be considered to set in place “minimum requirements of government supervision of the consultation/ meeting process” to ensure “greater transparency”. Toro submitted that the minimum requirement ought to be that “the neutral [Government] observer … be present throughout the entire meeting”. The CLC and NLC disagreed,

arguing that such an amendment would be an “intrusion” and that government representatives at traditional owner meetings “already [absorb] considerable time, effort and resources of government, for ill-defined gain.”

Abolish requirement for Minister’s final consent

162. The NT Government submitted that the requirement for the Minister to consent to the grant at the end of the process “does not add value and is an unnecessary delay” and for this reason should be abolished.

163. The CLC and NLC submitted that the Minister’s consent should remain part of the Part IV process. They argued that the consent requirement “ultimately provides a backstop for traditional owners should there ever be a failure in the process.” They note the delay caused by the Minister’s consent requirement is only 30 days, after which time if no decision has been reached, the Minister’s consent is deemed.

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Simplify content of agreements

164. The NT Government submitted that the terms and conditions of exploration agreements too often imposes requirements on applicants that merely duplicate pre-existing statutory obligations in relation to such topics as “mining operation, sacred sites, mining improvements, environmental protection, roads, airstrips, cultural and social impacts, liquor, [and] employment opportunities”. This duplication causes undue delays and costs. The NT Government therefore recommended that s 44A be redrafted so as to limit the subject-matter of exploration-stage agreements to “exploration provisions only”.

165. The CLC and NLC disagree. They submit that “[e]nvironmental provisions in [Part IV] agreements are a cornerstone of traditional owner informed consent and control over use of their land.”

166. Another submission of the NT Government was that a “template short form agreement for exploration” should be developed. Such an agreement would rectify identified problems with agreements - in particular, the duplication of statutory provisions discussed above. The template could be negotiated between the Land Councils and the representative mining bodies. Such an agreement would enhance the timeliness of the process.

167. Toro also advocated the concept of “standard and uniform” exploration agreements. It suggested that this could prevent the duplication of statutory requirements already mentioned above. Toro submitted that these “duplicated compliance” costs, combined with other costs, meant that “[s]oon no-one will be able to afford to explore.” Toro further submitted that “the monetary terms of [exploration] agreements has [sic] been spiralling upwards unchecked over time…” It is implicitly suggested that standard agreements could assist in addressing this problem. Finally, Toro also suggested that the “financial terms in the [m]ining schedules of [exploration] agreements” are “extremely unfavourable” and “assume a strong commerciality for any discovery made”, which may mean that, in the event of a discovery, “otherwise-viable projects could become financially stranded.” Again, it is implicitly suggested that standard agreements could help solve this problem too.

168. The AAPA also made submissions in favour of standardised exploration agreements. Specifically, it recommended that “the standard use of Authority Certificates [issued under the SS Act] should be a standard mandated component of the exploration agreement.”

169. The CLC and NLC opposed the idea of standard agreements. They submitted that such agreements could well end up being negotiated so as to be favourable to applicants. They assert that Land Councils already use a template agreement that can be tailored to individual circumstances, and that this status quo is preferable.

Remove double-payment of securities

170. An issue that arose in the course of the Review was the Land Councils’ practice of requiring the payment of securities to cover such eventualities as environmental degradation, sacred site destruction, and rehabilitation costs.

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171. The Mining Management Act (NT) already requires very similar securities to be given by mineral titleholders.82 The SS Act also provides protection of sacred sites (though it does not provide for the giving of securities). Thus it was suggested in some discussions that the securities insisted upon by the Land Councils were unnecessary.

172. The CLC and NLC submitted that separate securities to the NT Government and to the Land Council are necessary, as the “[s]ecurities required by [Part IV] agreements are not confined … to environmental matters but for performance of other obligations as well, e.g. compensation due to traditional owners.”

Permit traditional owners to play a greater role

173. The MCA submitted that in some circumstances it would be appropriate for negotiations to be conducted “directly with and by the traditional owner groups”, and that Land Councils should “facilitate direct engagement by exploration/ mining companies with [t]raditional [o]wners”, and that provision should be made to grant traditional owners the “option … to take on direct agreements with [applicants], where [the traditional owner groups] can be demonstrated

as having good governance, economic development objectives and transparent administration …” Where a traditional owner group cannot be so favourably characterised, the “Land Councils should take on a Governor General role to facilitate in this process.” It is unclear what exactly a “Governor General role” is in this context. Presumably what is meant in a general sense is that the Land Council should exercise some kind of ‘oversight’ role.

174. The NLC, CLC and ALC submitted that it is already possible to draft an agreement so that, where it is appropriate, traditional owners can take on direct management of benefits granted under that agreement. These three Land Councils opposed the proposal for direct negotiations between traditional owners

and applicants. The CLC and NLC stated that this issue “has been considered exhaustively in previous reviews … and consistently rejected. … [T]he potential for misunderstandings and misinterpretation would undermine the certainty that the current regime provides by utilising statutory agencies [i.e. Land Councils] resourced specifically for the purpose of consultations.” The ALC

similarly argued that direct consultation “would create many problems with miscommunication” and would possibly lead to “unfair agreements … that fail to benefit all owners.”

Adopt NT Act infrastructure facility provisions

175. The AMEC made a further submission that a scheme for the grant of infrastructure facilities (as defined in the NT Act) should be introduced that is equivalent to s 24MB of the NT Act. That section does not establish such a scheme. Presumably, the AMEC intends to refer to the whole of Division 3, Subdivision M of the NT Act, and most particularly s 24MD of the NT Act, which does establish such a scheme. The MCA made a materially identical

submission. No reason is given as to why this proposal might be desirable.

82 Mining Management Act (NT), s 43.

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Extend moratorium period

176. The TLC submitted that the present five-year moratorium period that applies over an area in respect of which an ELA has been refused should be extended to ten years. “The five year period,” the TLC says, “is not long enough to offer any respite to the landowners, and encourages the mining companies to attempt to divide the Aboriginal community over time, so that when the [moratorium] has expired, the re-issued proposal is more likely to succeed.”

Minor amendments

177. The NT Government proposed a range of largely small or uncontroversial amendments to the ALR Act. They included:

• a requirement that the Land Council advise the NT Mining Minister of the date upon which it receives an application for Land Council consent from an applicant. This is required by the NT Mining Minister so as to monitor negotiating time limits (which run from the date the Land Council receives the application);

• an amendment to s 41 to enable an application for Land Council consent to be amended after it has been sent to the relevant Land Council. At present, the ALR Act contains no provision for making such an amendment. As such, the present practice is for the NT Mining Minister to withdraw and reissue consent to negotiate, and then the applicant submits the amended application. In such circumstances, the requirement for an initial meeting with traditional owners is often waived (because it has already occurred in relation to the original application). However, such a practice leaves room for doubt about

the validity of the resultant agreement. The CLC and NLC opposed this idea. They assert that amendments to applications, such as a “change in the target mineral”, are not “merely a technical matter, at least not for traditional landowners.” As such, they submit that the status quo, as explained above, is appropriate;

• an amendment which enables small culturally-sensitive areas where no exploration is to occur to be included within the larger area constituting the EL. At present, when an ELA is made, the Land Council may refuse consent in relation to such small areas, but grant consent in relation to the majority of

the EL area. That means that the small ‘non-consent’ areas become separate parcels of land, and are placed under moratorium. This practice has proven administratively burdensome, as there are many such tiny parcels of land, all with separate moratoriums and separate identification numbers in the DME’s

system. It would be simpler if the ALR Act provided that such areas should be included in the EL area, and the exploration agreement would simply contain a condition that exploration was not to occur in the relevant areas;

• an amendment to the reapplication process following veto and moratorium. At present, where an application is vetoed, the applicant who lodged that application has 30 days following the 5-year moratorium within which to

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reapply, after which time, other applicants may apply. The NT Government submitted that there should instead be three months to reapply, just like there is three months to apply ordinarily under s 41 of the ALR Act;

• amendment of the “special negotiating period” provisions in s 42(17)-(20) to “make them more workable”. The provisions referred to allow the Minister (this power is now delegated to the NT Mining Minister) to set a negotiating time limit of not more than 12 months where a person made an application

under s 41, a previous time limit expired without a Land Council decision being made on the application, and that person then made substantially the same application. The provisions also relieve the relevant Land Council from having to hold any meetings in respect of the later application that it already held in respect of the earlier application. The NT Government’s criticism is that the maximum time limit of 12 months is too short, and that the provisions are unclear as to what occurs if no agreement is reached by the time limit set by the Minister;

• an amendment to permit traditional owners not only to reach a conclusion of “consent” or “veto” to Part IV negotiations, but to allow a third option of “continuing to negotiate”. This, the NT Government submits, would be useful where “[traditional owners] are prepared to consent to, or refuse, part of the

application area [but] do not necessarily want to determine the remainder”; and

• a requirement that reasons be given for a refusal to consent to an application. This would enhance Land Council transparency, assuage the frustration of failed applicants, and in some instances perhaps allow misunderstandings to be rectified and agreement to be reached after all. The CLC and NLC

opposed this suggestion on the ground that traditional owners’ reasons for their decisions may not even be discernible, and that discerning them would prolong the consultation process. Moreover, reasons would “[serve] no useful purpose and [introduce] potential for contestation and litigation … thereby diminishing traditional owners’ ability to exercise their [veto] right”.

178. The MCA made the following proposals:

• that s 46, which sets out what needs to be included in a mining agreement proposal, requires too much environmental protection-related information. While the MCA does not explicitly suggest repealing the offending provisions, that appears to be the implication. It argues that s 46 is “impractical”, “out

of step with current environmental regulatory regimes and practice” and “unworkable in some respects”. It is tantamount to requiring an environmental impact statement, a “lengthy & expensive process”, without giving regard to the fact that “there are various imperatives that require mining title be

obtained before that stage [(i.e. the stage at which one would be ready to complete an EIS)] is reached”; and

• that the responsibility for the decision of the Land Council as to whether to consent or veto should be delegated to the Land Council’s Chief Executive and executive staff, rather than the full council of the Land Council.

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179. The TLC noted that, though the established practice is for the applicant to bear the costs of convening the consultation meetings, the ALR Act does not in fact specify who should bear the costs. The TLC proposed that the established practice be codified in the ALR Act, so that the ALR Act mandates that the applicant is responsible for consultation costs.

180. FaHCSIA submitted that there are technical issues with the provisions dealing with the Minister’s final consent to an EL. The Minister is required to give consent within 30 days of receipt of notice by the Land Council of an agreement between a Land Council and applicant. However, there is no requirement that the Land Council provide the information necessary for the Minister to make his or

her determination with the notice of the agreement. FaHCSIA does not make any specific proposal for legislative amendment to remedy this technical problem.

181. The DRET made the following proposals for legislative amendment in its submissions:

• there should be a requirement in the ALR Act that Part IV negotiations are conducted in good faith, as appears in the NT Act ‘right to negotiate’ provisions. The ALC submitted that such a requirement is unnecessary as “the intent [to act in good faith] already exists in all ALR Act negotiations” and that if such a requirement were added, “great care would be required to ensure that the [t]raditional [o]wner’s [sic] interests were not disregarded.” The NLC and CLC agreed that the requirement is unnecessary. It is necessary in the NT Act because of the “lesser rights that native title holders have [under the NT Act, as compared to traditional owners’ rights under the ALR Act]”;

• Part IV “negotiation requirements” for ELs or mining interests should incorporate “principles of sustainable development and social licence”. The NLC and CLC submitted that the “merit of [this] suggestion is not obvious”, but “not inherently offensive” either; and

• exploration licences in retention (ELRs, a type of mineral title under the MT Act) should be drawn into the s 48A agreement process (s 48A relates to exploration and mining agreements between Land Councils and applicants in respect of land that is not yet Aboriginal land but is subject to a claim). The present arrangements, the DRET submitted, can mean that traditional owners are “excluded from negotiations for access and benefits from the land” and can also result in “land banking”.

182. In addition, the DRET submitted that at least two groups of traditional owners had advised the DRET that, while participating in Part IV processes, they had “not necessarily” been given an accurate description of the applicant, particularly in relation to the applicant’s “ownership or interests”. Section 41(6)(a) requires

that an applicant give a description of itself and its business activities in its application to the Land Council. The DRET submits that greater “[g]uidance should be provided to applicants as to the information required to prevent misrepresentation.”

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8. Other matters

183. The NT Government submitted that in the event that amendments are made to Part IV, there ought to be a further review of Part IV in five years’ time.

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DISCUSSION

184. Part IV of the ALR Act establishes an administrative regime to control exploration and mining on Aboriginal land in the NT. The ALR Act had been the subject of three general reviews prior to the 2006 Amendment Act, referred to in the Terms of Reference for this Review. The consideration of those reviews led to the changes effected by the 2006 Amendment Act. It was intended to

promote economic development on Aboriginal land by providing for expedited and more certain processes related to exploration and mining on Aboriginal land. Consequently, the focus of this Report, in general terms, is how the ALR Act as so amended achieves those objectives. Secondly, its focus is upon whether, in

the light of the experience of the key stakeholders since the 2006 Amendment Act, there may be other legislative amendments or procedural changes which may further or better achieve that objective.

185. It is probably unnecessary to say that this Review has been conducted with the benefit of the experience of the key stakeholders since the 2006 Amendment Act. In the course of conducting the Review, that experience has been freely shared. Inevitably, the experience of various key stakeholders is provided from

the particular perspective of the key stakeholder or stakeholders concerned. That is not a criticism of any of them. It is simply the fact. It should, however, be recorded that the perspective of each of them appeared to be genuinely motivated by the objective of promoting economic development on Aboriginal land for the benefit of the traditional owners of such land.

186. That objective raises three interrelated questions for this Review to consider in its task of providing comment and recommendations on the operation of Part IV of the ALR Act following the amendments effected by the 2006 Amendment Act. Those questions are:

1. Has the ALR Act promoted economic development?

2. Has the ALR Act provided more expeditious processes for exploration and mining on Aboriginal land?

3. Has the ALR Act provided greater certainty in relation to exploration and mining on Aboriginal land?

187. It is convenient to deal with each question in turn.

1. Promotion of economic development

188. Many interested parties made detailed submissions on the issue of economic development on Aboriginal land, and the part that Part IV has played in promoting or not promoting it. Those submissions have been summarised above.

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189. The ATSIA Committee Report recorded that the issue of whether or not the Part IV processes stymied development on Aboriginal land was a vexed one that had “dogged” its inquiry. The Reeves Report had encountered similar problems, and reported that the issue descended into a “veritable paper war”.83

190. No paper war was waged over the course of this Review. But the question was certainly problematic. No doubt this stems from the inherent difficulty in isolating the many factors that affect the amount of exploration that occurs on Aboriginal land.

191. Statistics were provided by the NT Government, CLC and NLC regarding the number of ELs applied for and granted on Aboriginal land over the relevant period and the average negotiating times. They are contained within the respective submissions, so they are not replicated in this part of the Report. There appeared to be some disparities between some of these statistics. However,

they all seem to support the general conclusion that there has been no clear Territory-wide increase or decrease in negotiating times, applications received, or applications granted for ELs over Aboriginal land since the 2006 Amendment Act.

192. The NT Government statistics indicate that the number of ELAs received in respect of Aboriginal land has remained fairly constant over the past decade, with a brief spike from around 2005-2007 (ending just as the 2006 Amendment Act commenced in 2007). Those statistics also indicate that PE applications have increased significantly in the past two years, but such applications constitute a small minority of applications relevant to Part IV, and there is no factor identified in Part IV or its processes, or any changed process, which would account for that increase.

193. It is, however, of interest that ELAs received in respect of non-Aboriginal land (almost entirely Native Title land) increased significantly in the 2005-06 financial year, and have remained roughly constant ever since, at a quantity three to four times higher than ELAs received in respect of Aboriginal land. Prior to 2005-06, the ELAs received in respect of Aboriginal and non-Aboriginal land were about equal. This is a strange result, but given it first occurred before the 2006 Amendment Act (which commenced in 2007), it is difficult to attribute it to

those legislative changes. The comparative processes for the granting of mining interests over land under the ALR Act and the NT Act are addressed later in this Report.

194. The CLC provided no statistics on ELAs received prior to 2007. Its data shows that the number of ELAs which it has received annually since 2007 has remained fairly constant. The NLC records a significant increase in ELAs received in the six years after the 2006 Amendment Act, compared to the six years prior to it. Given that that significant increase is not reflected in the NT Government’s NT-wide statistics, it cannot be taken that the increase was due to the changes introduced by the 2006 Amendment Act (which, obviously, applied to the whole Territory), but it must instead be due to some more local cause, or a

83 ATSIA Committee Report, pp.94-95, [6.25]-[6.27].

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mere coincidence. There is no anecdotal information from the interested parties involved in mining which attributes to the 2006 Amendment Act any significant increase in ELAs in the region for which the NLC is responsible.

195. If the focus is shifted to ELs granted each year over Aboriginal land (rather than ELAs), the NT Government statistics again record very little variation over the past decade. On the other hand, ELs granted over non-Aboriginal land increased substantially from 2007 onwards. That is presumably largely a natural result of the increase of ELAs received over non-Aboriginal land. However, that fact does not completely account for the discrepancy. As noted above, there are presently three to four times more ELAs received over non-Aboriginal land than over Aboriginal land. But the present ratio at which ELs are granted over non-Aboriginal land compared with Aboriginal land is significantly higher than that.

There is an obvious possible explanation for this, namely that ELAs over non-Aboriginal land are of course not able to be vetoed, while ELAs over Aboriginal land are. It is not, however, assumed in the subsequent discussion in this Report that that is the, or the only, explanation.

196. The CLC records a very great increase in the number of ELs granted over Aboriginal land over the past two years. The NLC only records the “number of ELAs finalised” - it does not indicate whether each ELA was consented to or vetoed. The number of ELAs finalised by the NLC over the six years since

the 2006 Amendment Act is almost exactly equal to the number finalised over a corresponding period prior to the 2006 Amendment Act, notwithstanding the substantial increase in ELAs received since the 2006 Amendment Act.

197. However, some of the data provided by the various interested parties’ statistics on this point is a little difficult to reconcile. The Territory-wide data provided by the NT supports the conclusion that there is no definite indication that the 2006 Amendment Act has led to an appreciable increase or decrease in the

number of ELs granted over Aboriginal land compared to the period before those amendments came into force.

198. If attention is given to negotiating times, the statistics on this issue do not assist in drawing any conclusion on this issue. The NT Government’s statistics do not go back further than 2007. During that time, negotiating and processing times appear to have remained fairly constant. There is at least no discernible trend. The CLC’s statistics track a steady decline in negotiating times since 2007, but prior

to 2007 the negotiating times were not so different from what they are presently. The NLC, on the other hand, records a significant decline in “average processing time” for ELAs over Aboriginal land from 42.8 months for the six years prior to

the 2006 Amendment Act, to 20.4 months for the six years after the amendments commenced.

199. It is dangerous to conclude much from such information. It is clearly possible that overall average negotiation and processing times have decreased since the 2006 Amendment Act. The change is apparently mainly in the dealing with those ELAs for which the NLC is responsible. It is not suggested that the CLC should have

similarly been able to expedite its processes; it may well be the case that pre-2007 the CLC’s processes were more expeditious than those of the NLC.

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200. All in all, these statistics do not take this aspect of the Review very far. It is clear that there is a sizeable gap between the number of ELAs on Aboriginal and non-Aboriginal land, and an even greater gap between the number of EL grants on each type of land since the 2006 Amendment Act. The reduction in negotiating

times since the 2006 Amendment Act in respect of ELAs for which the NLC is responsible does not of itself provide much support for the view that the 2006 Amendment Act itself has produced any significant change in the number of ELAs, or the grant of ELs, over Aboriginal land since then. The information

provided by the interested parties involved in mining in submissions and in meetings does not provide anecdotal information that any such change occurred.

201. Apart from the statistics, the NLC and CLC provided a report by Dr Hugh Saddler, the managing director of an energy consulting company and an Adjunct Professor at the Australian National University’s Fenner School of Environment and Society, on the topic of exploration in the NT in the context of recent global economic factors. It was commissioned by those Land Councils. Dr Saddler’s ultimate relevant conclusion is as follows:

“…[U]nlike expenditure in all other states, exploration expenditure [in the NT] has grown steadily throughout the [last decade].

Unlike most other states, in the NT there was very little slow down in the growth of exploration expenditure during the peak of the global financial crisis, suggesting that the NT is in fact a satisfactorily diverse and attractive location for mineral exploration. Significantly, exploration for new deposits has grown

more rapidly in the NT than the rest of Australia. Comparing expenditure on exploration at existing deposits there are similar growth rates.

It is clear that the NT has performed at least as well as any other state in attracting investment in mineral exploration over the past decade. Over the past five years, including the period of falling mineral prices in the aftermath of the GFC, it has performed better than most other states. Over this period it has also

performed better at attracting exploration for new mineral deposits.”

202. His report suggests that the state of exploration in the NT is healthy. Given that around half of the NT is comprised of Aboriginal land, it is clear enough that Part IV has not had a detrimental effect upon exploration in the NT. It does not establish, of course, that Part IV is on the one hand playing a role in supporting that level of activity, or on the other hand is not hindering exploration in the NT on Aboriginal land and directing a focus to non-Aboriginal land. The latter alternative is not a likely one simply because Aboriginal land constitutes so much of the NT, and if Part IV in its present form were a material disincentive to applications for mining interests the overall level of exploration activity in the NT would be unlikely to be at the positive levels Dr Saddler has described.

203. On this aspect, my conclusion is an equivocal one. It cannot be said that the 2006 Amendment Act can be shown to have positively promoted economic development on Aboriginal land. Nor, however, can it be said it has not promoted such economic development. The discussion above suggests that the 2006 Amendment Act does not appear to have had any material effect upon such

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economic development on Aboriginal land. That may be because it is too early to see the effects, or it may be because the effects are difficult to discern, or it may be because the beneficial outcomes of the 2006 Amendment Act have had more subtle effects.

204. That final alternative is the most likely conclusion on the material. The NLC’s statistics, which have not been contradicted by any other statistics or evidence before the Review, do support its conclusion that “[t]he amendments have significantly improved the efficiency of the [Part IV] process which, in turn, has contributed to shorter processing times in the NLC region.” As noted, there have not been commensurate shorter processing times in the CLC region, but this may quite possibly be because they are already relatively shorter. It should also be noted that there was no suggestion made on behalf of the mining interests that the CLC was in any inappropriate way untimely in its processes or inappropriately difficult to deal with; the contrary was the case.

205. In short, whilst it is clear that the 2006 Amendment Act generated changes in the processing of ELAs over Aboriginal land, and in the granting of ELs over Aboriginal land, with some benefit to the traditional owners and the interested parties involved in mining, those changes are not able to be shown to have

materially affected the number of ELAs or the number of ELs granted over Aboriginal land since they were introduced.

206. Indeed, in light of the disparity evident in the NT Government statistics between the number of ELAs received and ELs granted over Aboriginal and non-Aboriginal land in recent years, it is difficult to resist the conclusion that Part IV operates as an impediment to the extent of exploration expenditure on Aboriginal land in the NT, relative to non-Aboriginal land.

207. That observation does not necessarily impugn the present Part IV process. It may be that the detrimental effect of Part IV is not due to its inefficiency and lack of expeditiousness, but rather entirely due to the simple fact that Part IV permits traditional owners to veto ELAs, a right that traditional owners obviously do not possess in relation to non-Aboriginal land, where Part IV does not apply. The existence of the veto may be enough to explain not only the lower rate of grants of EL, but also the lower rate of ELAs received (because prospective applicants would rather avoid the chance of exposing themselves to a possible veto if they

can). A factor, however, that militates against that conclusion is the statistics provided by the NT Government and CLC, which suggest that the exercise of the veto is a relatively rare event.

208. It seems, on balance, that the discrepancy between ELAs received and ELs granted in respect of Aboriginal and non-Aboriginal land is most likely due to a combination of the possibility of the veto, and the more protracted processes prescribed under Part IV. No doubt some of that protraction is a necessary corollary of the veto right. It is likely that, so long as traditional owners of Aboriginal land retain a veto right, the Part IV process will not be as speedy

or as positively regarded by mining and exploration companies as the NT Act process, where there is only a right to negotiate. However, given the statistics which suggest that, first, Aboriginal land is ‘underperforming’ as compared to

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non-Aboriginal land, and, second, that it is possible that that underperformance is not wholly explained by the veto right, but may also be due to other factors such as the length of the Part IV process, it is appropriate to analyse the Part IV process and determine whether there is any scope for improvements that will make the process more efficient and expeditious, but which do not upset the underlying rationale and the balancing of competing interests that has been struck. That analysis is undertaken below.

2. Expeditiousness of Part IV process

209. A process is more expeditious not only if it is quicker, but also if it is less administratively and financially burdensome on the relevant parties. The desirability of expeditious Part IV processes was a key focus of the submissions received and it is therefore clear that it is an area of concern. Many of the submissions that have been critical of the expeditiousness of the Part IV processes have drawn unfavourable comparisons between those processes and the equivalent processes mandated under the NT Act, either by proposing that parts of the NT Act processes be incorporated into Part IV, or by demonstrating, by means of statistics or anecdotal evidence, that obtaining ELs over non-Aboriginal land (which is predominantly Native Title land) takes less time than obtaining ELs over Aboriginal land.

210. Clearly, a comparison of the two processes, both with regard to obtaining an EL and obtaining an ML, might prove instructive in assessing the respective submissions and in the identification of recommendations for potential legislative amendments or procedural changes that would contribute to improved outcomes and efficiencies. Such a comparison follows.

2.1. Comparison of processes

2.1.1. Process to obtain an EL over Aboriginal land

1. Application to NT Mining Minister

211. An ELA is made to the NT Minister in a prescribed form, and must include a description of the blocks comprising the proposed EL area and a technical work programme for the first two operational years.

212. As an aside, it should be noted that no ELA can be made in respect of an area that was subject to another EL at any time in the last 30 days. That requirement in effect creates a 30-day ‘moratorium period’ between the expiration, cancellation, or surrender of an EL and an application for a new EL over the former EL

area. That means that it is not uncommon for several ELAs in respect of the same area to be received on the same day (i.e. the first day an area comes out of ‘moratorium’). When that occurs, a process is followed whereby the Titles Advisory Board makes a decision (based on an expert geologist recommendation)

as to which ELA is to be preferred. The successful applicant then has 30 days to decide whether to continue with the ELA, as the Board may not have offered the applicant the full area originally applied for.

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213. Once an ELA is received, it is entered into the DME’s database and mapping system and assessed for compliance with the MT Act. Where information is missing or incomplete, the applicant will be required to provide that information.

214. The applicant has 14 days from lodgement of the ELA within which to give notice of the application to all relevant landowners. The applicant has 14 days after serving notice on the landowners to provide proof of such service to the NT Mining Minister. Thus, this aspect of the process takes a maximum of 28 days.84

215. The NT Mining Minister must assess the ELA to ensure it meets the necessary criteria as outlined in s 58 of the MT Act and reg 44 of the MT Regs. These mainly concern the applicant’s compliance with the MT Act, as well as the applicant’s past record in complying with rehabilitation requirements, paying fees, and participating in any ALR Act negotiations in good faith. The NT Mining Minister may also refuse the application for any reason if satisfied it is appropriate to do so, or because the applicant is not, in the NT Mining Minister’s opinion, a fit and proper person to hold an EL. 85

216. If satisfied that the criteria are met, the NT Mining Minister must give notice of the application in a relevant newspaper (paid for by the applicant). To save costs, the DME will sometimes wait two to three weeks so that there are a sufficient number of ELAs that can be advertised all together.

217. The notice must, inter alia, state that third parties can object to the application within a specified time period that must be not less than 30 days from the date of publication.86

218. If objections are made, the NT Mining Minister must give the applicant a maximum of 21 days to respond to them.87 Any objections, and the applicant’s responses, must be considered by the NT Mining Minister in determining whether to grant an EL. The DME notes, however, that objections in relation to ELAs over Aboriginal land are not common.

2. Consent to negotiate granted by NT Mining Minister

219. There is very little provision in the ALR Act or MT Act or any other legislation about what is required for consent to negotiate to be granted to an applicant. This seems to be largely left to the discretion of the NT Mining Minister.

220. Section 41(1) of the ALR Act merely states that:

“Where the NT Mining Minister has given consent … to a person’s entering into negotiations with a Land Council for the consent of the Land Council to the grant to the person of an exploration licence in respect of Aboriginal land, the person shall submit to that Land Council an application, in writing, for consent to the grant of that licence.”

84 MT Act, s 66.

85 Ibid, s 70.

86 Ibid, s 71.

87 Ibid, s 72.

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221. Section 62 of the MT Act states that:

“(1) A person must not … enter into [ALR Act Part IV] negotiations with a Land Council for consent to the grant of an EL for Aboriginal land unless the person:

(a) has applied under this Act for the EL; and

(b) has the Minister’s consent to enter into the negotiations.

(2) For subsection (1)(b), the Minister may:

(a) give consent conditionally or unconditionally; or

(b) withdraw consent at any time during the negotiations under the ALR Act and refuse to grant the EL; or

(c) refuse to give consent and refuse to grant the EL.”

222. No criteria are set out for the NT Mining Minister to consider before giving such consent. It appears to be in the NT Mining Minister’s absolute discretion. Nor is any indication given as to at which stage in the ELA process this consent is to be given.

223. However, the DME has informed the Commissioner that, as a matter of practice, the consent to negotiate will be granted on completion of the requirements set out above (that is, the initial MT Act processes for granting an EL). That is consistent with the tenor of submissions and interviews with various stakeholders throughout the Review process.

3. Application to Land Council

224. After the NT Mining Minister gives consent to negotiate, the applicant must submit to the relevant Land Council a written application for consent to the grant of the EL (and send a copy to the NT Mining Minister). That application must ordinarily be made within three months of the consent to negotiate being granted. Upon the request of the applicant, that period may be extended by

the NT Mining Minister at his or her discretion for a maximum of three extra months. If no application is made within the time limit, the NT Mining Minister’s consent to negotiate is deemed withdrawn. It should be noted that there is nothing preventing a re-application for the NT Mining Minister’s consent to negotiate immediately after its initial withdrawal. This appears to render the time limit somewhat illusory. That said, an NT Mining Minister may well be less inclined to re-grant such consent to negotiate if an applicant has been tardy in making its application to the Land Council.

225. The application must contain various details about the proposed exploration activities, including some provisions about potential future mining operations in the event of a discovery - namely “a description, expressed as fully as practicable, of the various methods for the recovery of any minerals found as a result of the exploration”.

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4. Land Council consultation and negotiation

226. Upon receiving an application for consent from an applicant, the Land Council must consult the traditional owners of the relevant land concerning the exploration proposals and the terms and conditions to which the grant of the EL may be subject. The consultation must occur by the Land Council convening such meetings with the traditional owners as are necessary for this purpose. The applicant and the Minister have limited rights to send representatives to such meetings.

227. If the Land Council wishes to refuse to consent it may do so as long as it has fulfilled the above consultation requirements before the expiration of the ‘negotiating period’.

228. If the Land Council wishes to consent, it must also consult with any Aboriginal community or group that may be affected by the grant of the EL to ensure that group or community has an adequate opportunity to express it views to the Land Council concerning the EL’s terms and conditions. There is no requirement for

meetings to be convened with such groups or communities.

229. Before a Land Council consent is granted, the Land Council must also be satisfied that the traditional owners understand the nature and purpose of the EL’s terms and conditions and (as a group) consent to them, be satisfied that the terms and conditions are reasonable, and have agreed with the applicant upon the terms and conditions.

230. As a practical matter, the decision of the Land Council to consent or refuse to consent to an application is made at a “full council meeting” of the Land Council. Generally, such full council meetings occur according to a set timetable. The NLC’s full council, for instance, meets twice each year (according to its website). Ordinarily, the decision to consent or refuse will therefore not be made straight

after consultation, but whenever the next full council meeting is scheduled.

231. The Land Council must give written notice of its consent or refusal to consent to an ELA, and the date on which the decision was made, to the applicant, the NT Mining Minister, and the Minister, within seven days of the decision.

232. This entire process (whether it ends in consent or refusal to consent) must take place within what is known as the “negotiating period”. That period is ordinarily a period of 22 months starting on 1 January of the calendar year after the calendar year in which the Land Council received the application for consent from the

applicant. The period can be extended by two years by agreement of the applicant and Land Council. The period can then be further extended by 12 months at a time by agreement of the applicant and Land Council. The Minister and NT Mining Minister must be given notice of any such agreed extension of time. Where the negotiating period has been extended beyond the standard 22 months by agreement of the applicant and Land Council, the Minister may,

after consulting the applicant, the Land Council, and the NT Mining Minister, determine in writing that a specified day at least 12 months after the day of the determination will be the end of the negotiating period. It should be noted that this power is one of the many powers of the Minister that is now delegated to the

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NT Mining Minister. This leads to the apparently anomalous situation where the NT Mining Minister is statutorily obliged to consult him or herself when deciding whether to set a deadline.

233. Where the negotiating period elapses without a decision being made by the Land Council, the NT Mining Minister’s consent to negotiate is deemed withdrawn. That means that the applicant’s application is also deemed withdrawn. This might suggest that the requirement that a refusal to consent be made within the

negotiating period is moot, because the same effect (the ultimate disposal of the application) can be achieved by simply not making a decision. However, that is not the case. There is a distinction between the effect of a refusal to consent and a mere withdrawal of consent to negotiate and consequent withdrawal of the application: a refusal to consent activates the moratorium, while a withdrawal of consent to negotiate does not. So a Land Council that wishes to activate the moratorium must ensure it refuses to consent before the deadline expires.

5. Consent of Commonwealth Minister

234. Where the Land Council grants its consent to an ELA, the Minister must determine in writing whether to consent to the grant and notify the applicant and the Land Council in writing of that determination within 30 days of receipt of notice of the decision to consent. Notice must also be given to the NT Mining Minister (though not necessarily within the 30 days).

235. If the Minister does not give notice of a determination within 30 days, the Minister shall be deemed to have consented to the grant of the EL.

6. Grant of EL by NT Mining Minister

236. According to the MT Act, the NT Mining Minister must consider whether he or she is satisfied that the applicant has obtained any necessary permit, consent or agreement required under the ALR Act.88 In the case of an EL, that will be fulfilled by the NT Mining Minister receiving proof of the Land Council’s consent and the Minister’s consent.

237. If so satisfied (and satisfied of all the other matters mentioned earlier), the NT Mining Minister may grant the EL. As a matter of practice, the DME imposes an additional requirement - a copy of the final agreement between the applicant and Land Council must be lodged with the NT Mining Minister. Often, this lodgement can take a long time. DME cites one case where the agreement was

not lodged until almost nine months after the (Commonwealth) Minister’s consent had been granted. It has been suggested that a reason for this tardiness is that Land Councils sometimes consent to an EL when they have reached agreement with the applicant, but have not yet signed a formal written agreement with the applicant. Therefore, that formal written agreement is still being drafted and finalised even while the Land Council and Minister are giving their consents.

88 Ibid, s 74.

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238. The DME also requires that the applicant must ensure the deed has been assessed for stamp duty by the NT Treasury.

239. Upon receipt of the final agreement, DME submits the agreement to the NT Department of the Attorney-General and Justice (DAGJ), which determines whether or not the agreement complies with the ALR Act. This process can take three to four weeks. DAGJ then supplies an advice to DME on the agreement. That advice is reviewed by DME.

240. Ordinarily, the NT Mining Minister would then make an offer of grant of an EL to the applicant. The applicant then has 30 days in which to accept the offer by paying the applicable rent. The EL is granted once payment is received.

2.1.2. Process to obtain an EL over non-Aboriginal, Native Title land

1. Application to NT Mining Minister

241. This initial process is identical to the initial process for Aboriginal land, outlined above.

2A. Expedited procedure

242. The grant of an EL over land in respect of which native title exists or might exist is a “future act” to which the right to negotiate applies under the NT Act.

243. A government proposing to do such a future act must:

• give public notice of that proposed future act, unless there is a registered native title body corporate (RNTBC) in relation to all of the affected land or water; and

• give notice to the applicant and the RNTBC, if one exists, or relevant registered native title claimants or representative ATSI bodies, if no RNTBC exists.

244. All persons notified (whether by public or private notice) are allowed three months within which to take certain steps to become “native title parties” in relation to the notice. However, the existing parties are able to move on to the next step in the process while this three months elapses.

245. A future act to which the right to negotiate applies under the NT Act is, of course, ordinarily subject to that right to negotiate process. However, that process can be avoided by instead employing the ‘expedited procedure’.

246. The expedited procedure can apply to a future act attracting the right to negotiate which is not likely to interfere directly with the carrying on of native title holders’ community or social activities, or to interfere with areas of traditional significance to native title holders, or to involve major disturbance to any land or waters.

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247. If the NT Government considers that the grant of an EL is an act attracting the expedited procedure, it can include a statement to that effect in the notice described above. A ‘native title party’ then has four months to lodge an objection with the National Native Title Tribunal (NNTT) against the inclusion of that

statement. The objection is called an “expedited procedure objection application”.

248. If no such objection is lodged within the time limit, the EL can be granted.

249. If an objection is lodged within the time limit, the NNTT must determine whether the grant of the EL does in fact attract the expedited procedure. The NNTT will hold an inquiry into the matter. If the NNTT determines the proposed EL grant does attract the expedited procedure, the EL may be granted. If not, the proposed EL grant must be dealt with under the right to negotiate process.

250. Submissions of and discussions with stakeholders suggest that the expedited procedure is utilised in most EL grants over Native Title land in the NT. In particular, the NLC submitted that it had a Memorandum of Understanding with various mining entities enabling the expedited procedure to be utilised in relation

to all ELs over Native Title land without objection.

2B. Right to negotiate process

251. If the expedited procedure is not utilised, the right to negotiate process applies.

252. The NT Government must give all native title parties an opportunity to make submissions regarding the proposed EL grant.

253. The NT Government, the applicant, and the native title parties must negotiate together in good faith with a view to obtaining the agreement of each native title party to the EL grant, subject to any conditions that might be agreed to.

254. If no agreement is reached within six months, any party may apply to the NNTT for an arbitrated determination as to whether or not the EL grant should be made, and if so under what terms and conditions. This determination is to be made as soon as practicable. If the NNTT takes more than four months to make a determination, the Minister may give a written notice requesting the NNTT to make the determination by a date specified in the notice (so long as that date gives the NNTT at least six months in total to make the determination). If the time limit specified in such a notice is not met by the NNTT, the Minister may instead make a determination.

255. In making such a determination, the Minister must first give notice to the NNTT and all the relevant parties that it is to make a determination and give them a chance to present materials to the Minister for consideration in making the determination. The Minister must consider particular stipulated criteria before making the determination.

2C. Indigenous Land Use Agreement process

256. A third option for fulfilling the requirements of the NT Act in relation to ELs over native title land is the use of indigenous land use agreements (ILUAs).

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257. An ILUA is made between the relevant native title parties and governments or a third party. The making of an ILUA is completely voluntary but, once made, binding.

258. Generally, an ILUA permits a future act to be done in relation to a particular area or a registered native title body corporate, so long as it is done as stipulated by the ILUA.

259. Submissions of discussions with stakeholders did not suggest that ILUAs were used in relation to the grant of ELs in the NT.

3. Grant of EL by NT Mining Minister

260. If the expedited process proceeds successfully, or if the right to negotiate process ends in agreement or a positive determination by the NNTT or the NT Mining Minister, or the EL grant is made in accordance with an ILUA, then the EL will be granted by the NT Mining Minister.

261. Section 74(2) of the MT Act states that:

“If the [NT Mining] Minister is satisfied the grant of a mineral title will be a future act in relation to any of the proposed title area of the application for the grant, the Minister may grant the mineral title only if satisfied all pr ocedures under the [NT Act] relevant to the future act have been followed.”

262. If the NT Mining Minister is so satisfied, nothing prevents the grant from being made.

2.1.3. Process to obtain an ML over Aboriginal land

1. Application to NT Mining Minister

263. An application for an ML over Aboriginal land can only be made by someone who already holds an EL or ELR over Aboriginal land. The application must generally include evidence of an ore body of likely economic value in the proposed area.

264. The consideration of the application takes the same course as that for an EL. The NT Mining Minister must assess the ML application to ensure it meets the necessary criteria, and if so, give notice in a relevant newspaper, just as occurs with an ELA.89

265. If objections are made, the NT Mining Minister must give the applicant a maximum of 21 days to respond to them.90 Any objections, and the applicant’s responses, must be considered by the NT Mining Minister in determining whether to grant an ML.

89 Ibid, ss 70, 71.

90 Ibid, s 72.

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2. Land Council consultation and negotiation

266. The details of the ML application process in respect of Aboriginal land have not been the subject of many submissions or discussions, no doubt because that process so rarely occurs. Only six MLs have been granted over Aboriginal land in the past 13 years.

267. It may be the case that the chronology of the process works very similarly to the EL process, in that the negotiations with the Land Council will only begin once the NT Mining Minister has made a preliminary assessment of the application. That said, it should be noted that there is no “consent to negotiate” that is required

by the applicant from the NT Mining Minister in respect of an ML application. So at least theoretically, there is no reason why Land Council negotiations could not begin before the NT Mining Minister has carried out the steps described above.

268. An applicant is required to submit to the relevant Land Council a written statement setting out a comprehensive proposal as to the intended mining works, explaining various prescribed aspects of the proposal. A copy must be sent to the Minister.

269. From the date of the Land Council’s receipt of the proposal, the Land Council and applicant have 12 months to reach an agreement upon the terms and conditions to which the ML will be subject. Alternatively, the Land Council and applicant can make a written agreement to allow themselves a longer time period within which to reach agreement on the terms and conditions.

270. Within that 12 months (or longer agreed period), the Land Council must fulfil consultation requirements more or less identical to those imposed in EL negotiations. Meetings must be convened with traditional owners, so that the Land Council can be satisfied that the traditional owners understand the nature and purposes of the terms and conditions of the ML, and consent to them as a group (the applicant and Minister have limited rights to attend and, in the applicant’s case, present and explain the proposal). The Land Council must also consult with any other affected Aboriginal community or group (not necessarily including convening meetings) so that it is satisfied that the community or group has had an adequate opportunity to present its view to the Land Council.

271. Before the Land Council can agree to any terms and conditions, it must be satisfied of the matters mentioned above, and further satisfied that the terms and conditions are reasonable.

3. Dispute resolution procedures

272. Where agreement is not reached in the 12 months or longer agreed period, one or both of the negotiating parties may make a written request to the Minister to refer the matters in dispute to a ‘Mining Commissioner’ to resolve those matters by conciliation, or, failing that, arbitration.

273. It would appear that if the time limit expires and no-one makes a request for referral to the Minister, negotiations simply continue as before.

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274. If a request is made, the Minister must arrange for the appointment of a Mining Commissioner. He or she does this by notifying the Attorney-General that a Mining Commissioner needs to be appointed. The Attorney-General will consult with the Commonwealth Ministers responsible for Aboriginal affairs (the Minister) and mineral resources. The Attorney-General will then appoint a current

or former judge of the Federal Court as Mining Commissioner.

275. Once appointed, the Mining Commissioner will try by conciliation to assist the applicant and Land Council to resolve the matters in dispute. If the Mining Commissioner decides that there is no reasonable prospect that the conciliation will be successful, he or she will give written notice to the parties of this fact and

that he or she intends to proceed to arbitrate the matters in dispute, unless either party objects.

276. If a party does object, the Minister must arrange for a new Mining Commissioner to be appointed (according to the same procedure outlined above) and that new Mining Commissioner will then conduct an arbitration.

277. If arbitration does occur, the Mining Commissioner must determine terms and conditions that are fair and reasonable and that should have been negotiated by the parties in commercial arms’ length negotiations conducted in good faith.

278. Once the Mining Commissioner has determined terms and conditions as required, the applicant must decide whether it is willing to enter the agreement upon those terms and conditions within 90 days or a longer period determined by the Minister upon the applicant’s application. If the applicant does not make a decision within that time limit, the ML is automatically cancelled. If the applicant decides within the time limit that it is willing to enter the agreement, the Land Council must also enter that agreement. If the Land Council refuses, the Minister will enter the agreement in the name of and on behalf of the Land Council.

4. Minister’s consent

279. The Minister’s written consent to the grant of an ML over Aboriginal land is required by s 45(b) of the ALR Act. However, there is no further provision regarding when or how such consent is given. Presumably, like in the EL process, the Minister’s consent is meant to occur after the agreement is reached between the Land Council and the applicant, so that the Minister can exercise a kind of ‘oversight’ role, to ensure that the agreement is indeed a fair one. However, there

is no basis in the legislation for requiring that the consent be given at this point in the process, and not some earlier point. Further, there is no time limit for the giving of the Minister’s consent equivalent to the 30-day limit for the Minister’s consent to an EL.

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5. Grant of ML by NT Mining Minister

280. The NT Mining Minister cannot grant an ML unless satisfied that the applicant has all necessary consents or agreements required by the ALR Act.91 Those necessary consents or agreements are, in the case of an ML, an agreement with the Land Council, and the consent of the Minister.

281. Once the NT Mining Minister is satisfied that that agreement has been reached, and that consent has been obtained, he or she may properly grant an ML over Aboriginal land to the applicant (if satisfied, in his or her discretion, that it is appropriate to do so).

2.1.4. Process to obtain an ML over non-Aboriginal, NT Act land

1. Application to NT Mining Minister

282. This initial stage of an ML application over non-Aboriginal land is identical to the initial stage of an ML application over Aboriginal land.

2A. Right to negotiate process

283. The grant of an ML over land in respect of which native title exists or might exist is a future act to which the right to negotiate applies under the NT Act. The grant of an ML is not likely to qualify as a future act that would attract the expedited procedure. Moreover, from submissions and interviews, it appears that the expedited procedure is not, as one would expect, utilised in practice in relation to MLs. So the right to negotiate process would apply.

284. The right to negotiate process in relation to an ML application is identical to the right to negotiate process in relation to an ELA (described above), both in its notification and negotiation requirements.

2B. ILUA process

285. It would be possible for the requirements of the NT Act in relation to MLs over native title land to be fulfilled by means of an ILUA. ILUAs are explained in the section above regarding ELAs on non-Aboriginal, NT Act land.

286. Submissions of or discussions with stakeholders did not suggest that ILUAs were used in relation to the grant of MLs in the NT.

3. Grant of ML by NT Mining Minister

287. As with an ELA over Native Title land, the NT Mining Minister must be satisfied that all procedures under the NT Act relevant to the ML application have been followed. If so satisfied, the NT Mining Minister may grant the ML.

91 Ibid, s 74.

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2.1.5. Conclusion

288. The above summaries aid in putting the Part IV process with respect to ELs, which was the main focus of the Review, in proper perspective.

289. It is appropriate now to assess each part of the EL process in turn and discuss and evaluate potential recommendations relating to each of those parts.

2.2. Recommendations regarding the Part IV EL process

2.2.1. Application to NT Mining Minister

290. This part of the EL process attracted little attention from the interested parties.

291. There was only one submission from an interested party directly relating to this part of the process. That was made by the TLC. It suggested that whenever an ELA is lodged with the NT Mining Minister, the relevant Land Council should be notified and invited “to prepare a submission in response to the ELA”. This would ensure that, inter alia, the “opinions of … traditional … landowners

are considered at all stages of [the] application.”

292. This is not a recommendation this Review can endorse. As it presently stands, the MT Act requires that all relevant landowners be notified within 14 days of the ELA’s lodgement (as noted in the summary above). Where land is Aboriginal land, the landowner for the purposes of the MT Act is the relevant Aboriginal Land Trust.92 The Land Trust is then entitled to make an objection to the ELA, and the Land Council is entitled to make submissions about the ELA (because any person may make submissions about an ELA).93 As such, traditional owners are notified and engaged from the very start of the process. Little would be gained by also requiring the relevant Land Council to be notified. There is no information from the NLC, CLC or ALC that suggests that the Part IV EL process would be assisted by such a change, or that they or the traditional owners they represent would benefit from such a change.

293. Statistics provided by the NT Government make it clear that the parts of the process that the NT Mining Minister has direct responsibility for - namely, this part of the process, and the final grant of the EL - cumulatively took an average of around 12 months to occur.

294. However, the DME has provided a very detailed breakdown of exactly what occurs in this part of the process, summarised above. Each stage appears to be a necessary one. No interested party has raised any concern about the length of time taken in this initial stage of the process. In light of those facts, it can be concluded that this part of the process is operating satisfactorily and no recommendation for legislative amendment or procedural change is appropriate.

92 Ibid, s 14(c).

93 Ibid, s 71(3)(e).

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2.2.2. Consent to negotiate granted by NT Mining Minister

295. As has been explained above, the NT Mining Minister ordinarily grants consent to negotiate as a matter of course wherever the NT Mining Minister is satisfied that, so far as he or she is concerned, an EL should be granted.

296. The TLC is unhappy with this situation. It has submitted that consents to negotiate should not be granted as a matter of course, but only once the NT Mining Minister has decided that it is appropriate, with regard to criteria relating to the effect it will have on the Land Council and traditional owners.

297. It might be said that the clarity of the legislative provision requiring the NT Mining Minister’s consent to negotiate could be improved. As noted in the summary above, the only provision of the ALR Act regarding the giving of the consent to negotiate does not specify the relevant steps or factors in any detail.

298. Presently, it appears that the consent to negotiate can be given or not given in the absolute discretion of the NT Mining Minister. Would it be prudent to restrict or regulate that absolute discretion, as proposed by the TLC or otherwise?

299. The TLC raises a legitimate concern in that it does appear onerous that in every case where a consent to negotiate is given, consultation and meetings must occur, even if in some circumstances this is a pure formality and the opinion of the traditional owners is already known.

300. However, the TLC’s proposal of imposing criteria upon the presently unfettered discretion of the NT Mining Minister is not the best resolution of this concern. The proposal would require the NT Mining Minister (in reality, of course, his or her delegates in the DME) to assess matters potentially outside the expertise and

role of the NT Mining Minister. For example, the NT Mining Minister would not be as well placed to determine matters such as the economic and community burden that an ELA will have upon an Aboriginal community as the community itself, or the relevant Land Council.

301. Moreover, the proposal to permit Land Councils more discretion in determining how they consult with traditional owners appears to be a more appropriate means of dealing with the TLC’s concern. That proposal is dealt with later in this Review.

302. Accordingly, no recommendation is made in respect of the consent to negotiate.

2.2.3. Application to Land Council

303. This part of the process would appear largely uncontroversial. Certainly no radical overhaul of this part of the process is required or desired. However, a range of largely technical issues were raised by interested parties relating to this part of the process. Each of those issues is dealt with individually below.

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Enforce time limit for submission of applications

304. As the TLC argues, it does appear that contravening the three-month (or six-month, if extended) deadline for submitting an application to the Land Council has no real, or at least no certain, consequences. There is nothing to prevent the applicant simply obtaining a renewed consent to negotiate from the NT Mining Minister (other than a decision in the NT Mining Minister’s complete discretion

not to give that consent) and thus effectively obtaining a further extension of time.

305. The question, then, is whether or not it is appropriate merely to rely on the NT Mining Minister to ‘police’ this issue, by not giving consent to negotiate where the NT Mining Minister feels the applicant should not be given another chance to submit an application.

306. That question requires consideration of the purpose of imposing a time limit on the submission of applications to the Land Council. The TLC argues that the purpose is to provide “certainty … to the Land Councils”. That is a legitimate purpose, but certainly not the only one. It is no doubt true that it would be burdensome to Land Councils to have the possibility of an application (that would then require consultation meetings and related actions to be undertaken

by the Land Council) hanging over their heads for protracted periods of time. It may well cause difficulties with regard to planning the allocation of resources and staff within the Land Council. But that burden should not be exaggerated. The reality is, of course, that any applicant is free to submit an ELA at any time,

and Land Councils will need to, and no doubt do, make plans to accommodate that eventuality. So the burden of having to factor in the possibility of unknown applications being made at unknown times is an inevitable one. The unenforceability of the application submission time limit constitutes merely a marginal increase of that burden, because the ‘unknown time’ in question is more immediate - that is, the Land Council should be in a position to address at any moment an ELA that has already gone through the initial DME notification and assessment processes and has been granted consent to negotiate.

307. The time limit does increase certainty for Land Councils, albeit only marginally. So what, if anything, should be done to preserve or enhance that certainty that the time limit provides?

308. The TLC proposes that the applicant should be barred from obtaining a new consent to negotiate from the NT Mining Minister. It is the view of this Review that that would be a disproportionate solution. It would mean that the failure of an ELA to meet the time limit would be punished by a de facto final disposal of the entire ELA. Moreover, nothing (other than an even more dramatic solution) would prevent the applicant from simply lodging a new ELA in respect of the

same area, and obtaining a new consent to negotiate through that more circuitous route. Thus, such a solution would only cause more delays for all concerned.

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309. A less harsh solution might be to impose a ‘moratorium’ of some sort upon the applicant, so that it was banned from obtaining a new consent to negotiate only for a limited period of time. However, that solution, while less draconian, would by definition simply result in more delay for what may potentially provide a significant economic benefit to the traditional owners.

310. Another possible alternative would be this: require that where consent to negotiate in respect of an ELA has been withdrawn, such consent cannot be given again in respect of the same ELA until an opportunity has been given (perhaps 21 days) for the relevant Land Council to make a submission to the NT Mining

Minister about the propriety or otherwise of giving consent to negotiate. The NT Mining Minister would be required to consider the submission in determining whether or not to exercise his or her discretion in favour of the applicant by giving consent to negotiate.

311. That could perhaps take the form of adding to s 41A (the present s 41A already deals with withdrawing consent to negotiate) a provision to the effect that, where the consent of the NT Mining Minister has been withdrawn, the NT Mining Minister must not subsequently give another consent to negotiate in respect of the grant of the same proposed EL unless the NT Mining Minister has given written

notice to the relevant Land Council of his or her intention to give such consent, and has allowed the Land Council 21 days from the date of such notice to make a submission, and has considered that submission.

312. Such a provision would act as an incentive to the applicant for an EL to comply with s 41(2) of the ALR Act, and so promote the timely consideration of an ELA and its timely disposition.

Recommendation 1: That amendment to the ALR Act aimed at encouraging applicants to comply with the time limit set out in s 41(2) be considered.

Consultation requirement for extension of time application

313. A further submission by the TLC proposed that Land Councils be consulted before a three-month extension be granted under s 41(3) to the original three-month period.

314. There does not appear to be a sufficient justification for this proposal. An extension of the three-month period to a total six-month period would, one would expect, cause little uncertainty for Land Councils. There may very well be entirely legitimate reasons why the applicant would require an extension. The

matter was not the subject of concern expressed by the other Land Councils.

Notification requirement upon receipt of application

315. The NT Government’s submission that a Land Council should be required to notify the NT Mining Minister of the date upon which it received an application from an applicant appears to be a sound one. The NT Mining Minister has responsibility for enforcing negotiation time limits, which run from the date of

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the Land Council’s receipt of an application. However, the NT Mining Minister is only entitled to be given a copy of the application from the applicant, which will not ordinarily indicate the exact day upon which that application was received by the Land Council. A simple requirement that the Land Council notify the NT Mining Minister of the day of receipt would certainly not impose any significant additional administrative burden on the Land Councils. It is a commonsense recommendation.

Recommendation 2: That s 41 of the ALR Act be amended to require the relevant Land Council to notify the NT Mining Minister of the date upon which it received an application from the applicant.

Provide guidance to applicants as to information required in application

316. Section 41(6) sets out what information must be contained in the application to the Land Council. DRET submitted that some traditional owners had not been given an accurate description of the applicant, as required by s 41(6)(a), particularly in regard to their ownership and interests. This was not an issue that any Land Council sought to raise in the Review. The NLC and CLC said the requirement is “straightforward” and has “never been … an issue”. It should be noted that applications are sent to the Land Council, not the traditional owners. So if traditional owners had been misled by a description of the applicant in an application, the Land Council should be aware of that matter.

317. DRET’s proposal is that greater guidance be given to applicants regarding their applications. This Review does not recommend that this proposal be adopted in the light of the paucity of evidence that this issue has caused any real problems.

Permit amendments to application without requiring resubmission

318. It is easy to see that legitimate reasons could well arise requiring an amendment to an initial application. The NT Government’s submissions make it clear that the present process for doing so (requesting the NT Mining Minister to withdraw and then reissue consent, and then resubmitting the application) is unsatisfactory and there is some doubt about its status.

319. The NLC and CLC point out that amendments to applications could be controversial and important and not merely technical. That forms part of their argument that the status quo on this issue should be maintained. There is obviously scope for debate about whether an amendment is or is not more than technical.

320. If an amendment facility were introduced, that would not affect the operation of ss 42(2) and (6), which would still require the Land Council only to consent to an application where the traditional owners have been consulted and the Land Council is satisfied that the traditional owners understand and consent to the relevant terms and conditions. So it is difficult to see how such an amendment facility could be abused by applicants to exploit traditional owners. At the least, it is certainly clear that there is little benefit to be gained in precluding

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uncontroversial technical amendments. The Review suggests that the benefits of allowing such amendments could be achieved by empowering the Land Councils to agree to such amendments. That is a practical solution, and removes the prospect of dispute about the unfairness of allowing an amendment. Indeed, a Land Council might also wish to allow an amendment which extends beyond the “uncontroversial” or “technical” in the interests of the relevant traditional owners.

The amendment may have been prompted by consultation with the traditional owners. It may be that an amendment proposed would itself require further consultation with the traditional owners, and the applicant would be prepared to support that further consultation.

321. In any event, to ensure any amendment to the application is maintained in the records of the DME and has no implications which are of moment to the NT Mining Minister, any such amendment if accepted by the Land Council should be notified forthwith by the Land Council to the NT Mining Minister (notification by letter would suffice) and the NT Mining Minister should have 28 days thereafter

to disallow the amendment.

Recommendation 3: That the ALR Act be amended to permit an applicant, with the written consent of the Land Council, to amend an application to a Land Council under s 41(1), and that any such amendment be forthwith notified by the Land Council to the NT Mining Minister who shall have 28 days thereafter to disallow the amendment.

Extension of time to re-apply following moratorium

322. The NT Government proposed that, following a veto and subsequent moratorium, the vetoed applicant should have the usual three months to submit an application, rather than the present 30 days. The rationale for this proposal is not articulated. At present, a vetoed applicant has five years and 30 days to prepare a new

application. It is difficult to see what would be gained by extending that to five years and three months.

2.2.4. Land Council consultation and negotiation

323. This part of the Part IV process is the lengthiest and most contentious.

324. It is clear that this process continues to be the principal cause of the much longer lengths of time taken to grant ELs over Aboriginal land as compared to non-Aboriginal land. No doubt that is to some extent inevitable, as traditional owners have a right to veto mining interests over Aboriginal land, while they do

not have such a right with regard to mining interests over non-Aboriginal land. Nonetheless, while it may be unrealistic to expect ELs over Aboriginal land to be granted as quickly as, or quicker than, they are over non-Aboriginal land, everything should be done to diminish the differential. The proposals to this end are discussed below.

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325. First, there were various proposals regarding the time limits placed upon the consultation and negotiation process, and ways of reducing the time the process takes. Second, proposals regarding the substance of the consultation and negotiation also arose.

Abolition of negotiation time limits

326. As summarised and explained above, the NT Government proposed the abolition of negotiation time limits, and the imposition of a new means of dealing with the negotiation process.

327. The proposed new scheme is a thoughtful contribution to this Review. The NT Government has argued, and has convincingly demonstrated through the statistics it provided, that timeframes for the grant of ELs over Aboriginal land are much longer than those over non-Aboriginal land, and that the primary reason for this is

the negotiation stage of the process.

328. However, the NT Government’s scheme has not garnered support from the Land Councils. The CLC and NLC have made some relevant points, discussed above, about the strengths of the status quo.

329. Moreover, while the NT Government has convincingly outlined the weaknesses of the status quo, the benefits of its proposed new scheme are less clear. There is no obvious reason to think that its scheme would reduce the length of negotiations. Also, the NT Government argued that the scheme would “[reduce] administration in either arranging for an extension to the negotiation period or withdrawing and reissuing consent.” That is also not obvious. The proposed new

scheme requires the parties to the negotiation to prepare and submit reports on the negotiations after two years, and every 12 months thereafter. Each report must be considered by the NT Mining Minister. It would seem that the administrative burden of these requirements is at least as onerous as present arrangements, perhaps more so.

330. For those reasons, this Review does not endorse the proposed new scheme put forward by the NT Government in lieu of the existing provisions.

Grant NT Mining Minister power to appoint mediator

331. In the alternative to the above scheme, the NT Government proposed that the NT Mining Minister be given the power, where a ministerial deadline set under s 42(15) has expired without a Land Council decision, to appoint a mediator for a finite period to attempt to facilitate an agreement. A similar idea appeared in the above proposed new scheme.

332. This proposal would “[provide] an additional means to facilitate an agreement” and “may be of assistance in more complex negotiation such as for financial aspects of petroleum activities.”

333. The proposal may very well do those things. However, the Review has not received any submission to the effect that mediation would be a particularly helpful means of facilitating agreements from any of the interested parties that

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are (or have members who are) directly involved in negotiations. Even the proposal’s endorsement in this regard by the NT Government is not a strong one. There are many potential proposals that could provide “an additional means to facilitate an agreement”. No compelling argument has been presented to the effect

that this particular additional means of facilitating agreements would be a useful one. It is not therefore recommended that this proposal be adopted.

Reduction of standard negotiation period

334. In the alternative to its broader proposal that the entire present Part IV scheme be abolished (see discussion of this proposal below), the AMEC suggested that the standard negotiation period be reduced from the present 22 months to six months. The justification is that this would align the Part IV process with the NT Act right

to negotiate process.

335. The NT Act right to negotiate process has been described above. It is clear that the shorter negotiating times it generally delivers are not due to the fact that it imposes a six-month time limit for negotiations. Rather, it is due to the fact that, if no agreement is reached within that time limit, the matter can be sent to the NNTT for determination. As such, native title parties have no choice but to negotiate within that timeframe. On the other hand, under Part IV traditional owners of course have a veto right. That veto right is not stripped from them if they do not comply with the negotiating deadlines.

336. It can be fairly confidently prophesied that if the AMEC’s proposal of reducing the standard negotiation period to six months were adopted, there would be no commensurate reduction in Part IV negotiating times. The only result would be that negotiating parties would have to agree to extend the negotiating period sooner. That would simply impose a greater administrative burden on everyone. As such, this proposal is not supported.

Permit greater flexibility in setting of agreed extension time period

337. The TLC proposed that s 42(13) be amended so that, where the negotiating parties agree to extend the negotiating period, they are not forced to extend it initially by exactly two years. Section 42(13) also provides that, following the initial two-year extension, any further extensions must be for 12-month periods. The TLC does not propose that similar flexibility be permitted in respect of those

subsequent extensions of time. It may be that that is an oversight, rather than an intentional omission.

338. In 1987, when the substance of the present Part IV scheme was first enacted, extension periods were flexible, as the TLC now submits they should again be, rather than predetermined, as they now are. The predetermined extension periods were introduced by the 2006 Amendment Act, when the standard negotiating

period was extended to the present 22 months. There does not appear to be any compelling reason to restrain the parties from setting shorter time limits for themselves if they so choose. In the absence of any compelling reason to the contrary, flexibility for the negotiating parties should be preferred. Therefore, it is recommended that this proposal be accepted.

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Recommendation 4: That s 42(13) be amended so as to permit negotiating parties to agree to extend the negotiating period initially by two years or a shorter period, rather than two years, and subsequently by 12 months or a shorter period, rather than 12 months.

Increase of maximum “special negotiating period”

339. The special negotiating period provisions are set out at s 42(17)-(20). Their effect has been explained above. The NT Government submitted that the maximum special negotiating period that the NT Mining Minister (exercising power delegated from the Minister) can set is too short at only 12 months from the date the application was received. Moreover, there is no means of obtaining any extension of time. The NT Government proposed that the relevant provisions be amended to “make them more workable”

340. These provisions do seem unduly restrictive. The shorter initial period of 12 months is justifiable, given that it applies in respect of an application that has already been before the Land Council. But there is no good reason why the negotiation period should not be able to be extended if both parties agree to do so,

as they are ordinarily able to do. As such, it is proposed that s 42 be amended so as to enable 12-month (or shorter) extensions by agreement of both parties, as is ordinarily permitted.

Recommendation 5: That s 42 be amended so as to permit negotiating parties to agree to extend a special negotiating period determined under s 42(18) by 12 months or a shorter period.

Less prescriptive consultation requirements

341. The NT Government, CLC, NLC, and TLC all proposed that the consultation requirements are too prescriptive and should afford the Land Councils more flexibility to determine how the traditional owners are best consulted. Instead of specifying that a meeting is required in every instance, the ALR Act should merely require that the Land Council be satisfied that, or attest that, proper consultation has occurred.

342. Prima facie, this appears to be an excellent proposal. The reasons for the proposal, summarised above, are convincing. Moreover, although the interested parties whose interest in Part IV is as an applicant (or representing applicants) did not make such a proposal, their submissions included general dissatisfaction with the

cost of meetings and a general view that they were often not “value for money”.

343. There are two classes of stakeholder that could be adversely affected by the proposal - applicants and traditional owners. Traditional owners may not be properly consulted, and applicants may not be afforded a proper opportunity to put their proposal to the traditional owners on their own terms.

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344. The risk to traditional owners’ interests seems small. It is highly unlikely that a Land Council would not properly consult traditional owners. There is no suggestion that this has ever occurred. The present prescriptive consultation requirements could not prevent a Land Council from ‘sidelining’ traditional owners if it were determined to do so in any case. On the other hand, Land Councils have demonstrated a keen awareness of their responsibility to represent

the traditional owners in their geographical area of responsibility. There will be cases where formal consultation may be unnecessary, due to the relationship with the traditional owners or by reason of earlier consultations, formal consultation or further formal consultation is necessary. The position of the TLC, given its relatively smaller area of responsibility, may be amenable to and benefit from greater flexibility.

345. The risk to applicants does appear more realistic. Applicants are given rights to participate in the consultation process under s 42(4) of the ALR Act. There has been no submission that those rights should be diminished. Indeed, as noted in the next section of this Review, some submissions suggested they should be better enforced. It is feasible that a Land Council might decide that the traditional owners can simply rely on that Land Council to inform it of the applicant’s proposal, and that that Land Council might not “do the proposal justice”, in that its own opinions on the proposal might prejudice the consultation. Even if that did not occur, applicants would be uneasy in the knowledge that it might occur, and this could lead to tensions and misunderstandings.

346. In the end, this Review considers that the interests of efficiency and timely addressing of applications do warrant some relaxation of the present prescriptions in s 42(4). Section 42(4) prescribes meetings to be convened by the Land Councils in all cases and in a certain manner. It could be amended so that it is expressed firstly as requiring the Land Council to convene such meetings with

the traditional Aboriginal owners as it considers “appropriate” (rather than “necessary”) for the specified purpose and secondly to enable the Land Council and the applicant to agree upon a less extensive role for the applicant at those meetings. That may be expressed by a new subsection (4A) whereby the Land

Council and the applicant may agree that a meeting not be subject to paragraphs (b), (c) and (d) of s 42(4) in relation to the participation of the applicant.

347. In this way, the applicant’s right to have a meeting with traditional owners (at its expense) is maintained, but can be waived where both parties agree that its participation in such a meeting is impractical or unnecessary. In addition in certain circumstances, the process of giving consent to an EL may also be facilitated by such amendments. It is noteworthy in this respect that the NLC, in

relation to proposed ELs in respect of non-Aboriginal land rarely takes any action to investigate or consult in relation to them, but reserves its position and that of those who are registered claimants or recognised holders of native title rights and interests until, and if, a substantive mining activity is proposed. Given the veto power which exists in relation to Aboriginal land, of course it cannot adopt that position under the ALR Act but there may be circumstances in which standard provisions for the grant of an EL may readily be seen to be beneficial and

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appropriate without incurring the delay and cost of the full consultation process, and where protections of the ALR Act for traditional Aboriginal owners may be preserved when, and if, there is a proposed ML over their land.

Recommendation 6: That s 42 be amended so that:

(a) the Land Council be required to convene such meetings as it considers “appropriate” rather than “necessary” with traditional Aboriginal owners; and

(b) the Land Council and the applicant may agree to waive the requirement to conduct meetings in accordance with s 42(4).

Greater governmental oversight of consultation meetings

348. The MCA and Toro proposed that greater governmental oversight of consultation meetings be mandated. The NT Government did not make such a proposal, and the CLC and NLC opposed it. There has been no real indication in the Review that there are problems with the “transparency” of consultation meetings. So no recommendation is proposed.

Simplification of content of agreements

349. An issue that emerged through the Review was that exploration agreements often end up containing terms that largely “duplicate” matters already dealt with in other legislation, such as sacred sites and environmental protection.

350. Moreover, it was also noted in the course of this Review that it is a common practice for at least some of the Land Councils to insist upon including a requirement in exploration agreements that various ‘securities’ be given. The security is generally required so as to cover the costs of any environmental or cultural damage that might be inflicted, and to cover rehabilitation. Similar securities are already required by law to be given to the NT Government. The suggestion is that the Land Council securities are unnecessary duplications that impose a significant additional financial strain on exploration and mining companies. The CLC and NLC argue that this is not the case and that the securities do not just concern rehabilitation, environmental matters, and similar, but are “for performance of other obligations as well, e.g. compensation due to traditional owners.” Some submissions on behalf of mining interests, particularly “junior miners”, were to the effect that the additional financial burden was a real

inhibition to seeking an EL.

351. With regard to this issue of duplication of terms and securities, the NT Government proposed that s 44A (which concerns terms and conditions of ELs) specifically prohibit terms and conditions that duplicate pre-existing statutory requirements. At first assessment, that seems to be a prudent proposal. Land Councils said, however, that the practice of inserting provisions into exploration

agreements that apparently duplicate statutory requirements in fact do more than that. The NLC and CLC submitted for instance, in relation to environmental protection provisions, that they ensure that “best environmental practice is

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applied” and that “landowners are kept informed of the environmental effects of activities”. It would be unfortunate if any proposal by this Review enabled debates about the reach of statutory requirements and the subtleties of the desirability of Land Councils extending them. Moreover, it is apparently accepted that Land Councils can properly seek security in respect of other matters, such as obtaining security for the payments due under an EL.

352. For instance, s 44A(1) provides:

“The terms and conditions agreed upon under section 42 or 43, or determined under section 44, shall include terms and conditions requiring the payment by the applicant of compensation for damage or disturbance caused to the relevant Aboriginal land, and to the traditional Aboriginal owners of the land, by exploration activities undertaken on the land…”

That provision was inserted by the 1987 Amendment Act. It is qualified by s 44A(3):

“Without limiting the generality of references in subsection (1) to compensation for damage or disturbance caused to land, those references include references to compensation for:

(a) deprivation of the use of the land or a part of the land;

(b) deprivation of the use of improvements on the land as permitted by the agreement; or

(c) severance of the land from other land having the same traditional Aboriginal owners as the land concerned.”

353. The Mining Management Act (NT) requires that a security be given by mineral titleholders as a condition of any authorisation of mining activities (which includes exploration) given under that Act. The NT Mining Minister may then make a claim from that security in order to secure the operator’s obligation to comply with the Act or the authorisation, payment of the NT Mining Minister’s costs and expenses in relation to any action taken to prevent, minimise or rectify environmental harm caused by the operator, or payment of costs and expenses in relation to the Minister causing an action to be taken to complete rehabilitation of a mining site.94

354. There is certainly scope for overlap - on the one hand, applicants are required by s 44A(1) of the ALR Act to pay compensation for damage or disturbance caused to the land; on the other hand, they are also required by the Mining Management Act to pay any government costs and expenses for the prevention, rehabilitation

or rectification of any damage caused to the land. Of course, s 44A(3) makes it clear that s 44A(1) covers matters not covered by the Mining Management Act - compensation for the deprivation of the use of the land, and so on. But it is nonetheless clearly arguable that s 44A(1) might mandate the inclusion of

provisions in exploration agreements that really only duplicate matters already

94 Mining Management Act (NT), ss 43, 44.

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covered by legislation, such as provisions requiring securities be paid to the Land Council so that the Land Council can pay for rehabilitation of the land in the event of environmental damage.

355. It must be accepted that, to some degree, the “duplication” of security payments is unnecessary and may inhibit some mining companies from seeking ELs in respect of Aboriginal land. As is apparent from the attitude of the NLC, that practice is not adopted in the case of ELs over non-Aboriginal land. That is a commercial decision for the Land Councils. However, it may well be that some traditional Aboriginal owners would benefit from an EL, and do not now do so because of the duplication of terms and securities insisted upon in negotiations regarding ELs over Aboriginal land. Practices which have grown up are not immune from reconsideration. Conditions which, in the past, have been imposed may no longer be desirable or necessary, or at least not to the same extent.

356. It is difficult to envisage a proposal for legislative amendment that could satisfactorily deal with this issue. It appears that the appropriate way to deal with the issue of duplication of securities is through greater co-operation and awareness between the negotiating parties, and the commercial considerations

referred to.

357. The Review does not adopt the suggestion of the NT Government.

358. A closely-related proposal made by the NT Government, Toro and the AAPA was that pro forma short-form exploration agreements be used in Part IV negotiations. As the CLC and NLC submitted, a pro forma exploration agreement is generally used by those Land Councils already. It is, however, apparently quite lengthy

and cumbersome. That is not such an issue for long-term or large-scale explorers and miners, who have had experience with such agreements. However, it could present difficulties for ‘junior’ explorers, presented with a lengthy document that they have no familiarity with, and for whom legal advice might be less easily available than for their more experienced and generally wealthier competitors. A

short-form pro forma exploration agreement may make exploration and mining on Aboriginal land more accessible and cheaper for a wider range of potential applicants.

359. A short-form pro forma exploration agreement might also be a means of eradicating some of the statutory duplication discussed above.

360. The CLC and NLC oppose this proposal on the basis that the pro forma agreement would have to be negotiated, and the resultant agreement would probably favour applicants over traditional owners. That is not a convincing objection. All submissions received and interviews undertaken in this Review have given the impression that the Land Councils are competent and confident organisations. They may not be as well-funded as some mining and exploration companies, but it seems very unlikely that they would be exploited or manipulated in any negotiations over a new pro forma agreement. It is therefore recommended that this proposal is worth investigating.

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361. Another advantage of a negotiated short pro forma agreement is that it may be an opportunity to implement some of the ideas proposed by the AAPA in its submissions. Those submissions have been summarised earlier in this Review. In essence, the AAPA feels that the SS Act is too often ignored by Land Councils in its negotiations with applicants. The SS Act establishes processes and prohibitions that could assist the Land Councils in their task (entrusted to them under s 23(1)(ba)) of protecting the sacred sites of traditional owners, without having to negotiate about these issues in relation to every ELA. If some standard references to the SS Act and the processes it establishes could be incorporated into a pro forma agreement, this might prevent the ‘duplication’ that the AAPA asserts is currently occurring, where Land Councils unnecessarily seek to protect sacred sites that are already capable of being protected by the AAPA under the SS Act.

Recommendation 7: That Land Councils and the relevant representative bodies for exploration and mining companies give consideration to the negotiation of a shorter pro forma exploration agreement for use in Part IV negotiations, with a particular focus on the elimination of terms and security requirements that merely duplicate pre-existing statutory obligations.

Negotiations should cover sustainable development and social licence issues

362. The DRET suggested that “negotiation requirements” for both ELs and MLs should incorporate principles of sustainable development and social licence. It should be noted that there are not presently any “negotiation requirements” in relation to ELs, at least in the sense of a list of topics that need to be negotiated. The DRET’s rationale for making this suggestion is not articulated. Interested

parties with a more direct interest in the Part IV process showed no interest in the suggestion. The general tenor of many of their submissions were, as is obvious from the above discussion, that they wanted less matters to be negotiated, not more. There is no obvious benefit to be gained by this proposal.

Negotiations should be conducted in good faith

363. The DRET submitted that Part IV negotiations should be required to be undertaken in good faith, as they are under the NT Act. This suggestion was opposed by the NLC, CLC and ALC. Other interested parties more directly concerned with the Part IV process did not express an opinion either way.

364. The proposal has attracted only opposition and ambivalence from those interested parties that regularly participate in Part IV negotiations. There is no evidence, nor any suggestion, that any party to negotiations under Pt IV has not done so in good faith (except those apparently few applicants who engage in ‘land banking’). In

the context of Part IV, where the veto given to traditional Aboriginal owners is recognised, it is difficult to conceive how “good faith” could or should qualify

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the veto. As discussed, the existence of the veto is a matter of policy, having deep roots recognised in earlier reviews. It would almost be inconsistent with the policy for the veto power to be measured against some form of good faith.

365. For those two reasons, although the obligation to negotiate in good faith is now being prescribed more extensively in legislation, this Review does not recommend that it be inserted in Part IV.

Permit traditional owners to play a greater role in negotiations

366. The MCA proposed that traditional owners should play a greater role in Part IV negotiations, at least in some circumstances. The purpose of this proposal appears to be to promote procedural efficiencies by diminishing the role of the Land Council, which is in many respects a “middle man” in the process. However,

there is little evidence to suggest that such a proposal would result in procedural efficiencies. On the other hand, there is anecdotal material provided in informal discussions that, as the CLC, NLC and ALC variously argued, it could lead to misunderstandings, misinterpretations and miscommunications. It is understood

that Land Councils provide an important role in, inter alia, identifying who are the traditional owners in respect of a particular area. Without them, this would presumably be left to the applicant. The Land Councils exist for historically good reasons. They offer oversight and expertise to their “constituents”. Many traditional owners, like any Australian citizen, would struggle to competently negotiate complex matters, on their own, with (sometimes very large) mining and exploration companies. Land Council staff, on the other hand, have the training and experience for this purpose. For all these reasons, this proposal is not accepted.

Formalise the practice of applicant paying meeting costs

367. The TLC notes that there is no statutory requirement that the applicant pay the costs of traditional owner meetings regarding its application. Despite this, it is the practice for applicants to do so, and many parties appear to assume it is in fact law. The practice makes sense. Amongst other reasons, if Land Councils had to

pay for traditional owner meetings, Land Councils’ budgets would be uncertain and vulnerable to applicants’ ELAs.

368. The TLC’s suggestion is a prudent one. It could be effected by a subsection 42(4)(e):

“(e) the applicant must pay all costs reasonably incurred for meetings convened under this section.”

Recommendation 8: That s 42(4) be amended by adding a requirement that the applicant must pay all costs reasonably incurred for all meetings convened under that section.

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Give Land Council ‘third option’ of ‘continuing to negotiate’

369. Sometimes, the NT Government submitted, traditional owners are happy to allow exploration in one area of an ELA, but are unsure about another area. In such circumstances, they must still determine whether to “consent” or “veto” for the entire area. So the uncontroversial area cannot be consented to until the controversial area is also dealt with. The NT Government therefore suggested a third option of “continuing to negotiate” in such situations. There are several difficulties that arise from this proposal.

370. First, no detail has been given as to how this ‘third option’ would operate.

371. Second, where the identified situation arises, a Land Council can already agree with an applicant to extend the negotiation time. In that sense, there is already a ‘continuing to negotiate’ third option - as a deadline approaches, a Land Council can either consent, veto, or seek agreement for an extension of time so that

negotiations can continue.

372. Third, s 42(1) expressly contemplates that consent might, and can, be given only “to the grant of an [EL] authorising the proposed exploration program in respect of … a part of [the relevant] land.” So it would appear that there is nothing to prevent a Land Council consenting to part of the land, and then agreeing with the

applicant to extend the negotiation period in respect of the rest of the land. This Review considers that the identified problem seems capable of resolution without adopting the NT Government’s proposal.

373. For these reasons, the proposal for legislative change is not adopted.

Delegation of Land Council power to consent or veto

374. It is noted in the above summary of the Part IV process that the general practice is for a Land Council consent or veto to be given at a regular meeting of the Full Council of the Land Council. It is likely that this leads to delays, as such meetings are often not frequent.

375. With this in mind, the MCA suggests the Land Council’s power of consent or veto be delegated to the Chief Executive or other executive staff. That suggestion is expressly prohibited by s 28(1)(e) of the ALR Act, which excludes the power of consent or veto under s 42(1) from the general prescription that the Land Council’s powers may be delegated to staff. A similar provision has existed since

at least 1987. It was therefore obviously determined that the power of consent or veto under s 42(1) is a power of the Land Council that it is proper for the Full Council to exercise. The only justification the MCA provides for its proposal are pragmatic ones. It would not be appropriate in those circumstances to recommend

that s 28(1)(e) be repealed so that the Land Council can delegate the power of consent or veto. Indeed, given the composition of the Full Council of Land Councils, it is a means of ensuring accountability to and for traditional Aboriginal owners.

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2.2.5. Consent of Minister

376. This part of the process is a relatively steady one. Moreover, no interested party suggested that the Minister had ever refused to consent to an EL. It is a formality, included so that the Minister can retain a degree of ‘oversight’ of the Part IV process.

377. The abolition of this step was advocated by the NT Government, primarily on the basis that it is an “unnecessary delay”. The CLC and NLC wanted this step to be retained, seeing it as an ultimate, last-resort “backstop” for extreme, rare cases that ensures traditional owners are not exploited. It is difficult to envisage in exactly what sort of situation the ministerial consent might be refused - presumably a case where a Land Council had failed in its role and an EL had been consented to when it objectively should not have been.

378. However, under s 42(1AA), the only notice the Minister receives of the Land Council consent is the bare fact of the decision. There is no requirement to provide substantive information that might enable the Minister to make an informed decision. As such, the Minister’s consent, in its present form, is

unlikely to be an effective “backstop” even in the theoretical situation imagined by the CLC and NLC, because the Minister would not know anything about the circumstances of the decision.

379. As such, the NT Government’s proposal to repeal the provisions dealing with the Minister’s consent merits serious consideration. It would abridge the disposition time by 30 days or so. On the other hand, the Minister’s consent requirement does not add expense or real complexity to the process.

Recommendation 9: That consideration be given to the benefit of securing the Minister’s consent, and, if it is assessed that it does not add “quality” to the decision making process, to the possible repeal of ss 40(a)(ii), 42(8), (8A), (9), and (10) and other consequential amendments.

380. As explained above, at present, the finalised agreement between the Land Council and applicant is required by the NT Mining Minister before the NT Mining Minister will grant an EL. That often takes some time to be provided, because the agreement has often not yet been finalised in writing. That means that in some, probably many, cases, the Minister consents to the grant of an EL where no finalised agreement as to its terms and conditions exists.

381. If the Minister’s consent is required, the situation should be altered so that the finalised written agreement is required to be provided to the Minister before the 30 days within which the Minister must decide to give or withhold consent begins to run. That will mean that the Minister has some basic information to inform

his or her determination to give or withhold consent. It will also inevitably mean that the Minister’s consent stage of the Part IV process will take longer. However, it should not lead to an increase in the length of the whole Part IV process as an entirety. That is because it will considerably shorten the final stage where the NT Mining Minister grants the EL. At the moment, that stage takes a long

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time because the NT Mining Minister must wait for the written agreement to be finalised. If that has already happened at the Minister’s consent stage, the final stage will be commensurately shorter.

382. It is recommended that a new s 42(7A) is inserted to the following effect:

“(7A) The applicant must provide to the Minister a copy of the agreement entered into by the Land Council and the applicant as to the terms and conditions to which the grant of the licence will be subject within 7 days of that agreement being entered into.”

383. Subsection (8) would then need to be amended as follows:

“(8) Where the Land Council consents to the grant of the licence, the Minister shall determine, in writing, whether he or she also consents to the grant, and shall notify the applicant and the Land Council, in writing, accordingly, within 30 days, or such other period as is prescribed, after:

(a) the receipt by the Minister of the copy of the agreement under subsection (7A); or

(b) the day on which the Land Council was, under subsection (7), deemed to consent to the grant of the licence.”

Recommendation 10: That, in the alternative to Recommendation 9, s 42 of the ALR Act be amended so as to require the applicant to provide a copy of the agreement entered into by the Land Council and the applicant as to the terms and conditions to which the grant of the exploration licence is subject, and the ALR Act further be amended so that the 30 days within which the Minister’s determination must be made runs from the date of receipt of the copy of the agreement.

2.2.6. Grant of EL by NT Mining Minister

384. This is the final stage of the process. As has been discussed, this stage presently can take considerable time because the NT Mining Minister must wait for the negotiation agreement to be finalised.

385. It should be noted that the requirement that the applicant provide the negotiation agreement to the NT Mining Minister is not one imposed by the ALR Act. However, it is a prudent and probably necessary practice of the NT Mining Minister to require it, because s 40 specifically prohibits ELs from being granted in respect of Aboriginal land unless, inter alia, “the Land Council and the [applicant] have entered into an agreement under … Part [IV] as to the terms and conditions to which the grant of the [EL] will be subject.” So it is appropriate for the NT Mining Minister to grant an EL without confirming that an agreement has been entered into.

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386. Perhaps surprisingly, no proposals were recommended by any interested parties in relation to this part of the process, and this Review makes no recommendations in respect of it. However, it is observed that no good reason for the delay in effecting “the paperwork” was provided to the Review.

2.3. Other proposals for more expeditious administration of Part IV

387. A number of proposals dealt with increasing the expeditious and efficient administration of Part IV processes other than those processes directly involved in granting an EL over Aboriginal land. They are dealt with here.

Extend moratorium period

388. The TLC proposed an extension of the moratorium period from five to 10 years. The TLC was the only interested party to suggest such an amendment. It says that five years “is not long enough to offer any respite to the landowners, and encourages the mining companies to attempt to divide the Aboriginal community

over time”. Those concerns may be legitimate, but an increase of the moratorium period to 10 years would be very onerous to mining and exploration companies, and since the TLC is the only interested party that has voiced concerns about the length of the moratorium period, no recommendation is made with regard to this issue.

Reasons be provided for a refusal

389. At present, where there is a refusal to consent, no explanation must be given for that refusal. The NT Government suggested it would be helpful to applicants in subsequent applications if reasons were provided by Land Councils for refusals. That may be the case, but the CLC and NLC’s objections against this proposal are

convincing. Giving reasons for refusal may be no easy task. Different traditional owners may have different reasons for their refusal. It is easy to imagine the drafting of reasons becoming a long, drawn-out process that consumes Land Council resources. There would have to be a considerable gain to be obtained to justify such an amendment. It has not been demonstrated that any such gain is

probable.

Ability to nominate ‘non-consent’ areas within an EL area

390. According to the NT Government, often an ELA will be consented to by a Land Council in respect of most areas, but the ELA will be refused in respect of some small areas. That means the small ‘non-consent’ areas become separate parcels of land in the DME’s system, and are each individually placed under moratorium. This practice increases the administrative burden on the DME, as it needs to keep

track of more parcels of land, and skews statistics by constantly creating extra parcels of land. The NT Government suggests that the ALR Act be amended so that these ‘non-consent’ areas can be included in the granted EL, and it simply be made a condition of the EL that no exploration occur on those areas.

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391. It is not at all clear that this cannot already be done. There does not appear to be anything in the ALR Act that would prevent the terms and conditions of an EL contained in an exploration agreement to include a condition that particular areas of the EL area are not to be explored upon.

392. If the NT Government’s proposal is in fact that such conditions should be mandated rather than just permitted, then the proposal should be rejected. There may be legitimate reasons why a Land Council would want to refuse to consent to an EL in respect of part of an area, rather than consent, but insert a condition prohibiting exploration on that area. The easing of the administrative burden on the DME is an insufficient reason to constrict Land Councils’ and applicants’ freedom to contract as they choose.

393. It may be appropriate for the NT Government to explore informally with the Land Councils the proposal discussed. The Review did not investigate, for example, the facility of the NT Mining Minister giving consent to negotiate in respect of an ELA but specifying as a condition of that consent that specified areas of the ELA may not be explored; the specified areas would refer to the areas to be excluded

by reference to the areas within the ELA area subject to registrations under the SS Act. Alternatively, the Land Council may agree to give its consent to the proposed EL subject to the type of exclusion which the NT Government suggested. Unless there is some issue of principle, that valid administrative concern of the NT

Government should be able to be accommodated.

Omit environmental provisions from ML negotiations

394. Section 46(1)(a) sets out the requisite contents of a proposal of mining works made by an applicant to a Land Council in order to reach agreement with the Land Council so that an ML can be granted. Section 46(1)(a)(viii) requires that the proposal contain “any other information of the kind that would, under the law of the [NT] relating to the protection of the environment, be required to be included in an environmental impact statement in relation to the proposed mining works”.

395. The MCA submits that this requirement is “impractical” and “unworkable in some respects” and forces applicants to undertake a “lengthy & expensive process”. This does seem like an onerous requirement. The Mining Management Act (NT) requires that a “mining management plan” be provided in respect

of all mining activities. But an environmental impact statement under the Environmental Assessment Act (NT) is only required where the mining project proposal is likely to have a “significant environmental impact”. That term is not

defined in the legislation, but the relevant government website contains examples of significant environmental impact including threats to endangered species or important conservation areas and significant land disturbance.

396. The requirement for a de facto environmental impact statement to be provided to a Land Council was introduced by the 1987 Amendment Act. Its precise rationale is unclear. Clearly there is an imperative for traditional owners to be

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fully informed about all aspects of a mining proposal, including environmental aspects, so they can make a fully informed decision. But there must be a limit to the quantity of information that should be provided.

397. It is difficult to see how traditional owners would be adversely affected if the requirement in s 46(1)(a)(viii) was diluted from a requirement for a de facto environmental impact statement to something like the following:

“(viii) any other information of the kind that would, under the law of the Northern Territory relating to the protection of the environment, be required to be provided to a Government department or authority in relation to the proposed mining works”

398. This would mean that, where an environmental impact statement was required by NT legislation, all the information required to be provided in such a statement would also be provided to the traditional owners. But where such a statement is not required, only the information required in a mining management plan would

need to be provided to traditional owners.

Recommendation 11: That s 46(1)(a)(viii) be amended so that the quantity of environmental information in relation to a proposed mining works that needs to be included in a s 46 mining proposal be the same as that environmental information that is required to be provided under NT environmental legislation.

Incorporate ELRs into s 48A process

399. Section 48A deals with exploration or mining of land that is not Aboriginal land but is subject to a claim that it is Aboriginal land. It permits Land Councils to make agreements with applicants “setting out the terms and conditions to which, if the land becomes Aboriginal land before the grant of that licence, the grant of that licence will be subject.”

400. DRET submits that ELRs are not drawn “into the s 48A process”, and that they should be. This submission is an obscure one. As one might expect, s 48A is not a frequently-used section of Part IV. ELRs can only be granted to a person who already holds an EL in respect of the relevant area. Section 44A makes it

clear that ELRs (or at least, their predecessors, exploration retention leases) do not require a separate agreement where there is already an agreement in relation to the pre-existing EL. Where there is no such agreement (because, perhaps, the land has only just become Aboriginal land), then it would appear that an agreement would be required in respect of an ELR, as the present ALR Act definition of “exploration licence” would seem to incorporate ELRs. Assuming that an ELR is an “exploration licence” under the ALR Act, it follows that it is already “drawn into the s 48A process”, because s 48A refers to ELs. So even if the DRET’s concerns were found to be valid ones, as presently understood, the Review does not make any recommendation as proposed.

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Repeal s 40(b)

401. While s 40(b) was not the focus of any submissions, it was noted in passing by the NLC in interview that s 40(b) is a relic of the original ALR Act that no longer serves any feasible purpose.

402. Section 40(b) permits the Governor-General effectively to overrule the traditional owners’ veto by declaring that the national interest requires that an EL be granted. Section 40 originally applied both to ELs and MLs. It is quite clear that the grant of an ML might be in the national interest. However, only a very small percentage of ELs result in a profitable discovery and it is impossible to tell which EL will make a profitable discovery in advance. It is therefore very difficult to envisage how an EL could ever be in the national interest. It is noted that there is no equivalent power to that in s 40(b) exercisable in relation to the grant of an ML.

403. Unsurprisingly, s 40(b) has never been utilised (even when it also applied to MLs). Section 40(b) is doing no positive harm, but given the impossibility of conceiving of a situation where it might be utilised, it is recommended that it be repealed.

404. Simplicity in legislation is desirable and a good in itself. Outdated sections that are never utilised and could not conceivably be utilised should not be kept on the basis that they aren’t doing any harm. Having legislation littered with such provisions is a hindrance to the clear public good of laws that are easy to understand. Members of the public trying to acquaint themselves with a particular law should not have to sift through the uncleared detritus of past legislative changes to find the active provisions that actually govern today’s world. For this

reason, the present s 40(b) should be repealed so that s 40 reads as follows:

“An exploration licence shall not be granted to a person in respect of Aboriginal land (including Aboriginal land in a conservation zone) unless:

(a) the Land Council for the area in which the land is situated gives consent under subsection 42(1) to the grant of the licence;

(b) the Minister gives consent under subsection 42(8) to the grant of the licence; and

(c) the Land Council and the person have entered into an agreement under this Part as to the terms and conditions to which the grant of the licence will be subject.”

405. As a result of this amendment, the entirety of s 43 could also then be repealed.

Recommendation 12: That ss 40(b) and 43 be repealed. It is a matter of policy whether some provision equivalent to s 40(b) and supporting provisions should be enacted in relation to proposed MLs.

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3. Certainty of Part IV processes

406. The third question relating to the achievement of the purposes of the 2006 Amendment Act is: has the ALR Act provided greater certainty in relation to exploration and mining on Aboriginal land?

407. While the issue of expeditiousness mainly called for a close examination of the minutiae of the Part IV processes, the issue of certainty calls for a broader assessment of two closely inter-related topics. First, the question of the veto right of Land Councils and traditional owners, and whether it should continue to exist. Second, the question of the relative merits of conjunctive and disjunctive exploration and mining agreements. Both of these topics have been dealt with in previous reviews of the ALR Act, but they were again a focus of submissions and discussion in this Review.

The veto

408. Most interested parties did not directly deal with the issue of the veto right. The veto right is the central concept that underpins all of Part IV. It is a right that Justice Woodward decided should exist in the Second Report of the Woodward Commission in 1974. It was incorporated into the ALR Act in its original form in 1976, and has evolved over, but survived, the intervening 37 years.

409. The AMEC was the only interested party to call for its abolition. It proposes that an NT Act-style ‘right to negotiate’ process be adopted in its place. The AMEC’s arguments in favour of that submission were not strong.

410. It was argued that the right to negotiate process was superior to the Part IV process because it, inter alia, “allow[ed] and, in some respects, motivat[ed] Aboriginal people to consider mining proposals…”

411. Like the right to negotiate process, the Part IV process also allows, motivates and in fact requires Aboriginal peoples to consider mining proposals. But unlike the right to negotiate process, it also allows them, once they have considered that proposal, to say “no”, as was envisaged by Justice Woodward in 1974.

412. It was then argued that the right to negotiate process was superior because it allowed greater access to “the tangible and intangible benefits that flow from mining … including … exposure to the modern economy and working conditions.”

413. It cannot be disputed that there are benefits that flow from mining, and that for remote communities one of those benefits is exposure to the modern economy and working conditions. But what the Woodward Commission determined was that it should not be up to outsiders, but the traditional Aboriginal owners themselves, to determine whether the benefits of mining on their traditional lands

are worth the costs. The Part IV process permits this, while the right to negotiate process does not.

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414. Finally, it is argued that a right to negotiate better strikes a balance between Aboriginal peoples’ traditional land rights and Aboriginal peoples’ rights to economic advancement, and between Aboriginal peoples’ traditional land rights and Australian citizens’ rights to the benefit of Australia’s mineral wealth.

These final arguments get to the heart of the matter - the veto right and its appropriateness is a policy issue, requiring the balancing of competing interests. That balancing of interests was undertaken by the Woodward Commission, and subsequently by the legislature. It is not a task for which this Review was

established. Nor is it one for which this Review is well-adapted.

415. The Review has disclosed no compelling argument for disturbing the status quo in this regard.

Conjunctive vs. disjunctive agreements

416. The term “conjunctive agreement” has generally been used in discussions of Part IV to refer to an agreement between a Land Council and applicant which deals with and consents to both exploration and mining conjunctively. Conversely, a “disjunctive agreement” is one where a separate agreement (and thus separate consent) is made in relation to only one stage (say, exploration). Another consent and agreement is required for the other stage (mining).

417. Since the 1987 Amendment Act, the ALR Act has in effect provided for conjunctive agreements. There are still separate agreements in relation to exploration and mining, but there is only one veto right, exercisable at the exploration stage. However, that arrangement has led to a situation where the essential terms and conditions of any mining works are generally agreed at the exploration stage, even though that is not required by the ALR Act. Naturally, Land Councils and traditional owners want to confirm terms and conditions of any subsequent mining before they give consent. Similarly, many applicants do

not want to explore if they have no certainty as to the terms on which mining would occur if the exploration was successful. Moreover, s 41(6)(e) requires that the exploration agreement proposal include “a description, expressed as fully as practicable, of the various methods for the recovery of any minerals found as a

result of the exploration.”

418. The conjunctive agreement arrangement has presented some difficulties. There are two chief concerns:

• s 41(6)(e) is regarded as an onerous and unrealistic requirement, compelling mining companies effectively to guess what mineral it might find and what method it might use to recover that mineral; and

• the practice of including essential terms of any mining agreement, such as royalty payments, in the exploration agreement is also onerous and unrealistic, given that almost nothing is known about the nature of the potential future mining operations at the time of negotiation. Moreover, this practice may contravene s 44A(1).

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419. Toro had an especial concern with traditional owners’ “veto powers” provided by exploration deeds and exercisable where the “actual discovery [does] not match the envisaged commodity or occurrence.” It isn’t immediately obvious what this is a reference to. There is no such power provided for under the ALR Act.95 But, as was noted earlier in this Report, the NLC and CLC explained that this is probably a reference to a provision contained in a “small number” of exploration agreements that permits traditional owners to effectively “veto” uranium mining if uranium is unexpectedly found in exploration.

420. There were a significant number of interested parties, consisting of miners, explorers and the NT Government, who proposed that s 41(6)(e) simply be repealed. Their submissions, described above, to the effect that s 41(6)(e) is unworkable, onerous, and inefficient have some force. As the NT Government argued, only one in a thousand ELs result in a significant mine, but Part IV requires that mining be dealt with in some detail in every EL proposal. On the other hand, there is also force in the major Land Councils’ argument that, given the conjunctive nature of the veto right, traditional owners need to have some assurance about what would happen at the mining stage, or they might not agree to exploration at all. To require traditional owners to consent to mining without knowing anything about the nature of the mining in question would effectively strip traditional owners of their right to consent - uninformed consent is no consent at all.

421. Many of the same considerations apply to the other chief concern, the practice of including essential terms of any mining agreement (i.e. royalty payment terms) in the exploration agreement. It is, as the MCA states, “extremely convoluted” and “expensive” to have to include these terms when so little is known about the nature of any future mining operations that might (but probably will not) occur. On the other hand, having those terms in the exploration agreement provides

assurance to traditional owners as to what might happen at the mining stage, were that stage to be reached. An additional consideration, though, is that while the MCA opposes this practice, it seems that other explorers support it. Applicants want the certainty of knowing at the exploration stage what payments they would have to make to traditional owners in the event that a profitable discovery was

made and mining went ahead.

422. That said, the MCA’s submission that the practice of deciding essential mining terms at the exploration stage may contravene s 44A(1) is arguable. Section 44A(1) relevantly states that:

“The terms and conditions agreed upon under section 42 or 43, or determined under section 44 [i.e. the terms and conditions of an exploration agreement] … shall not include compensation for the value of minerals removed or proposed to be removed from the land or for any other purpose or consideration for giving consent to the grant of the exploration licence.”

95 Although s 47(3) does permit the Minister to cancel or refuse to grant an ML if a number of criteria are fulfilled, one of which is that the mining works do not match the description that was given of them in s 41(6)(e).

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423. The mining terms generally decided upon at the exploration stage usually include provision for royalty payments in the event of a subsequent ML, specified as a percentage of the quantity of minerals taken. It would be arguable that such a term constitutes an agreement to agree upon “compensation for the value of minerals removed or proposed to be removed” in the event that an ML is granted, and is caught by s 44(1).

424. Moreover, s 46(17) stipulates that “the terms and conditions of [a mining] agreement under this section shall include terms and conditions relating to the payment to the Land Council of an amount or amounts specified in, or determined under, the agreement.” So it seems to be clearly envisaged under the provisions of the ALR Act, notwithstanding the present practice to the contrary, that royalties will not be agreed upon until the mining stage is reached.

425. Recognising the competing arguments, the NT Government proposed a compromise - that s 41(6)(e) be removed from the ALR Act, but that new provisions be inserted that require conjunctive agreements as the “default process”, but permit applicants and Land Councils to choose to have a disjunctive agreement if they so choose. The NT Government notes that a more ‘co-operative’ approach between Land Councils and applicants has emerged in recent years. That observation informs this proposal. In light of that more ‘co-operative’

approach, the NT Government argued, applicants may be willing to agree to a disjunctive process.

426. This proposal has some appeal. However, it should be remembered that Land Councils have the greatest leverage at the exploration stage - they can veto the ELA. It thus seems likely that the proposed provisions, allowing parties to choose whether to have conjunctive or disjunctive agreements, would in fact

end up merely reintroducing the disjunctive veto provisions of the pre-1987 ALR Act. It would seem strange for a Land Council to agree to consent to both exploration and mining at the exploration stage, without knowing anything about the potential mining. In reality, the Land Council would be likely to always insist

upon disjunctive agreements with a separate veto. There is no benefit to the Land Council in giving consent to any future mining if it can consent to the EL without having to do so. Indeed, given the choices proposed by the NT Government, it would seem imprudent of the Land Councils to do otherwise than insist upon a

disjunctive agreement. Thus, it seems at least arguable that the NT Government proposal would amount to a de facto return to disjunctive agreements with veto rights at both stages. Incidentally, this is what the TLC explicitly proposed in its submissions.

427. Before 1987, the ALR Act provided for a default disjunctive agreement process, but an optional conjunctive agreement process. That was removed by the 1987 Amendment Act, and replaced with the mandatory conjunctive agreement process that remains in place today. The problem with disjunctive agreements is that they

provide no certainty for applicants, and could discourage ELAs on Aboriginal land entirely.

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428. As frustrating and cumbersome as the requirement to provide details of mining at the exploration stage is, it may be the only way to effectively protect two competing imperatives: that traditional owners not be forced to consent to mining on their traditional lands that they know nothing about, and that applicants not be forced to undertake exploration without any certainty as to whether or not they will be permitted to take advantage of any minerals found as a result of that exploration.

429. In the light of that state of affairs, it is suggested that for the present, the existing law and practice be maintained.

430. In the course of the Review, and having regard to the information provided by the NLC that it takes no action to resist ELAs over non-Aboriginal land, it was contemplated that there may be a case for transferring the veto to the proposed grant of an ML, and removing it from an EL. The material before the Review

suggests that there are “standard” terms for an EL consent, and that those terms do not routinely involve significant payments to the traditional Aboriginal owners or provide them with significant economic activities or interests. Exploration is

said to involve relatively little interference with land. By transferring the veto right to the point where an ML was under consideration, the Land Councils and the traditional Aboriginal owners would then be exercising an informed decision in relation to real and measurable prospects.

431. The Review does not recommend that option. In the first place, the existence of the veto and when it might be exercised is more a matter of fundamental policy. Secondly, there may be traditional Aboriginal owners who would, in any event, be opposed to any government-approved activity on Aboriginal land (such as under an EL) without their approval. Any decision to remove that veto right (and replace it with a different veto right exercisable at a later point in the EL/

ML process) should only be taken after the most careful consideration and the opportunity to consider the policy implications with as wide a range of Land Councils and traditional Aboriginal owners as possible. The Review did not fully extend into those areas. One reason for that is that, clearly, any changed

scope of operation of the veto would not be likely to have broad support among sectoral shareholders. The Land Councils were firmly opposed to any change to the veto, and on the other hand those mining parties who addressed it were simply opposed to it remaining in any form or at any point in the EL/ML process. Finally, it is noted that the Review did not obtain detail of the community benefits to traditional Aboriginal owners of ELs granted over the last several years. Consequently, the extent of economic development on Aboriginal land by

ELs in that period was not able to be assessed in any quantitative way. Such an assessment would have offered some insight into the potentially greater economic development to be gained by facilitating ELs by leaving the veto to operate only in the event of a proposed ML. It is a task which could be undertaken, but it would be a substantial exercise. It is only an exercise worth undertaking if there were broad sectoral support for consideration of such a proposal.

432. That leaves one unresolved aspect of this dilemma: s 44A(1) and its apparent prohibition of the present practice of including mining royalty terms in the exploration agreement. The CLC and NLC recommended that s 44A(1) should

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be amended so as to ensure that the present practice is lawful. Section 44A(1) was introduced by the 1987 Amendment Act. As mentioned above, the 1987 Amendment Act mandated conjunctive agreement. But it is more accurate to say it mandated conjunctive consent. It required two separate agreements, one

concerning exploration and one concerning mining. The only aspect of mining to be dealt with at the exploration stage was that mandated by s 41(6)(e). The practice of parties in also including mining royalty terms and similar mining-related terms in the exploration agreement is a justifiable deviation from the 1987 Amendment Act scheme, for the reasons given above. As such, s 44A(1)

should be repealed insofar as it prohibits terms and conditions which provide for compensation for the value of minerals removed or proposed to be taken from the land.

Recommendation 13: That ss 44A(1) to the extent that it prohibits its terms and conditions which provide for compensation for the value of minerals removed or proposed to be taken from the land be repealed.

4. Other issues arising from this Review

4.1. Part IV’s consistency with other provisions of the ALR Act

Section 27

Section 27(3) provides that:

“A Land Council shall not, without the approval of the Minister, enter into, or permit a Land Trust holding land in its area to enter into, a contract involving the payment or receipt of an amount exceeding $1,000,000, or, if a higher amount is prescribed, that higher amount.”

433. The MCA submitted that “[b]oth Land Councils and [r]esource [c]ompanies see this amount as restrictive to progression of relationships.” It is submitted that the amount should at least be indexed, if not increased.

434. This provision would appear to have the effect of requiring another layer of ministerial approval where an exploration or mining agreement involves payment of or receipt of more than $1,000,000. Section 27(3) has existed in the ALR Act since its enactment largely in its present form (albeit with a lower cap - originally $50,000). No particular guidance is given in the original clause notes as to the

rationale behind this restriction or its level.

435. While the broad merits of s 27(3) are outside the scope of this Review, its consistency with and application to Part IV processes is not. It appears unnecessary to require ministerial approval for payments made under exploration or mining agreements, when both exploration and mining presently require the Minister’s consent already (and, if Recommendation 10 is accepted, in the case of an EL, the Minister will receive a copy of the agreement before he or she gives that consent).

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436. If pursuant to Recommendation 9 the need for the Minister’s ultimate consent were done away with, then there may be some merit in preserving s 27(3)’s application to Part IV. Otherwise, it seems an unnecessary burden.

Recommendation 14: That Part IV be made exempt from the application of s 27(3) so that the Minister’s consent is not required both in relation to the payment of over $1,000,000 and in relation to the granting of the EL or ML.

437. A further issue regarding s 27(3) was raised by the AMEC. It suggested that s 27(3) is ambiguous as to whether it applies only to contracts regarding Aboriginal land. It suggested that it only applies to contracts regarding Aboriginal land, and that amendments should be made to “clarify” this position.

438. There is no basis for interpreting s 27(3) as the AMEC suggests. The words of s 27(3) place no limitation upon the range of contracts that s 27(3) applies to, other than the limitation that the contract involves “payment or receipt of an amount exceeding $1,000,000 [or higher]”. There is no scope for reading s 27(3) down so as to apply only to Aboriginal land because it appears in the ALR Act. The ALR Act does not merely deal with Aboriginal land, but also, inter alia,

establishes the Land Councils and their powers. Section 27(3) appears in that part of the ALR Act that establishes the Land Councils and their powers. So AMEC’s proposal amounts not to a clarification but an unambiguous alteration of s 27(3). Whether such an alteration would be desirable or not is an issue well outside the

scope of this Review.

Section 19 and extractive minerals

439. Section 19(11) specifically states that extractive mineral titles are to be regarded as “estates or interests in land” for the purposes of s 19. Section 19 sets out a scheme for the grant of interests by Land Trusts over Aboriginal land.

440. Section 19(11) was added to the ALR Act by the Aboriginal Land Rights (Northern Territory) Amendment Act 1987 (Cth) as a result of a recommendation of the Toohey Report.96 Justice Toohey’s justification for this innovation was that extractive mineral titles are used for “relatively minor projects” compared

to mineral titles, and so should not be subject to the Part IV process, but a less onerous process.

441. The s 19 process for the grant of interests in Aboriginal land by Land Trusts can be simply outlined as follows: a Land Trust may grant an interest or estate in Aboriginal land to any person only at the direction of the relevant Land Council, after that Land Council has consulted with the relevant traditional owners and any

other affected Aboriginal community or group and is satisfied that the traditional owners consent to the grant and that the grant is made on reasonable terms and conditions.97

96 Note that this was not the 1987 Amendment Act.

97 It should be noted that where the grant of an interest in land is made to another Land Trust, s 19 imposes further requirements that are not set out here.

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442. It seems fairly clear that Justice Toohey intended that this process should apply to extractive mineral titles. That is, Land Councils would need to consult traditional owners about extractive mineral titles as set out above. The EIA notes that it is the practice of the NT Government to require an applicant “to have an agreement (said to be an agreement under s 19 of [the ALR Act]) with the relevant Land Trust under which the Land Trust consents to the grant of the extractive title”.

443. Moreover, s 64 of the MT Act complements s 19’s purported application to extractive mineral titles by requiring the NT Mining Minister to give notice of an extractive mineral title application as soon as practicable to the relevant Land Council, presumably so that Land Council can begin consultation with the

relevant traditional owners and affected communities.

444. However, as pointed out by the EIA, s 19 does not require the s 19 process to be followed with respect to extractive mineral titles. That is because all of the provisions of s 19 set out under what circumstances a Land Trust may grant an interest or estate in land to someone else (those circumstances being where the Land Council has consulted). But the grant of an extractive mineral title is not made by a Land Trust, but by the NT Government. All grants of any sort of mineral title are of course made by the NT Government.

445. So while it appears that s 19 is meant to apply to extractive mineral titles so as to require the consent of traditional owners, and s 19 is in fact applied to extractive mineral titles by the NT Government, the plain words of s 19 do not extend its application to extractive mineral titles.

446. Accordingly, the EIA’s submission that new provisions should be made regarding extractive mineral titles should be accepted.

447. The issue, then, is what form those new provisions should take. The EIA submitted that extractive mineral titles should continue not to require Land Council or Land Trust consent, as the law presently provides (albeit seemingly accidentally, and notwithstanding that the present practice is to require such

consent). The EIA further submits that a ‘voluntary scheme’ should be introduced under the ALR Act to permit extractive mineral licence applicants to enter agreements with Land Trusts and Land Councils where the applicant feels it is advantageous to do so.

448. It is unclear why traditional owners should have a right of veto in regard to mining interests, but no special rights at all in regard to extractive mineral titles. It appears that the Toohey Report’s recommendations sought to reduce the consultation and consent requirements applying to an extractive mineral title to less than those applying to mining interests, presumably because extractive mineral titles are generally less intrusive. But the Toohey Report explicitly stated that any scheme for the grant of extractive mineral titles “must not significantly derogate from the control which Aboriginal owners have over their land…” That comment should be endorsed. The EIA’s proposal does significantly derogate from the control which traditional owners have over their land, by requiring agreement from traditional owners only if an applicant feels the need to obtain one.

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449. As such, the EIA’s recommended scheme should not be implemented. Instead, the consultation provisions of s 19 should be set out in a new section in such a way that those provisions apply to extractive mineral titles. Such a recommendation would be largely consonant with the proposal of the NT Government that s 19 remain the authority for extractive mineral titles, but be clarified so as to ensure

that s 19 does in fact apply to extractive mineral titles.

Recommendation 15: That s 19(11)(a) be repealed insofar as it purports to include extractive mineral titles within the definition of “estate or interest in land”.

Recommendation 16: That a new section be added to the ALR Act requiring that an extractive mineral title not be granted unless the Land Council has given notice to the NT Mining Minister that it is satisfied of all the matters set out in s 19(5). Consequential amendments to the MT Act may also be necessary.

4.2. Delegations to the NT Mining Minister

450. The 2006 Amendment Act facilitated the delegation to the NT Mining Minister of various functions previously exercised by the Minister. Most interested parties saw this move as a positive one, or a neutral one. The Land Councils, as is noted above, were particularly pleased with the increased insight (they submitted) the NT Mining Minister had gained through the exercise of the delegated roles. The NT Government agreed that it had gained a greater understanding of the

negotiating process through these roles.

451. As such, overall, it seems that this initiative has been a successful one, but one the benefits of which are difficult to quantify or observe, and are in any case unlikely to be significant.

452. A small number of issues arose in relation to this issue.

Delegation to the NT Mining Minister of the Minister’s role under s 47

453. Sub-section 76(2), as amended by the 2006 Amendment Act, stipulates that all the powers of the Minister under Part IV may be delegated to the NT Mining Minister, except for specific listed exceptions. Section 47 enables the cancellation of ELs by the Minister, and the cancellation or refusal of MLs. To do so, the Minister must determine a number of issues. Paragraphs 76(2)(d) and (e) prohibit the NT Mining Minister from determining those issues required by s 47 that concern the national interest. However, other determinations under s 47 are able to be made by the NT Mining Minister.

454. The CLC submitted that that ought not to be the case. The other determinations largely involve determining whether or not particular exploration or mining activities “are causing, or are likely to cause, a significant impact on the affected land and on Aboriginals, to the extent that the Council would not have consented

to the grant of the licence.” It would certainly appear that this is not a matter that particularly lies within the NT Mining Minister and the DME’s area of expertise or jurisdiction. It is a matter that requires regard to be had to environmental,

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cultural, and social factors. It would therefore seem prudent that this matter should be decided by a person better-equipped to decide such matters. The Minister, the originally-envisaged decision-maker, would appear to be such a person.

455. However, there is a problem that emerges in requiring the Minister to make these decisions: the decision also requires the Minister to determine, in the case of an EL, whether “the licence-holder is conducting, or is likely to conduct, exploration works otherwise than in accordance with the proposed exploration program”, or, in the case of an ML, whether “the proposed mining works or related activities

are not in accordance with the description set out under paragraph 41(6)(e) in respect of the application relating to the relevant [EL].” Those matters are ones that would appear to fall within the purview of the NT Mining Minister. That problem is resolved in the EL-related provisions of s 47, as they require that the Minister consult with the NT Mining Minister (as presently delegated, s 47 therefore requires the NT Mining Minister to consult with himself or herself) before making his or her decision. No such consultation requirement is included in relation to an ML.

456. The CLC’s proposal that this power not be able to be delegated to the NT Mining Minister should be endorsed, but there should also be a requirement in relation to the ML provisions of s 47 that the Minister consult the NT Mining Minister.

457. A new s 76(2)(ca) and (da) could be added in the following terms:

“(ca) paragraph 47(1)(d) (about determining whether a Land Council was entitled to make a statement that the exploration works of a licence-holder not complying with the proposed exploration program are causing or are likely to cause a significant impact on the affected land and on Aboriginals, to the extent that the Council would not have consented to the grant of the licence);

(da) paragraph 47(3)(a) (about determining whether a non-compliant proposed mining works are causing, or are likely to cause, a significant impact on the affected land and on Aboriginals, to the extent that the Council would not have consented to the grant of the licence);”

458. Finally, a new s 47(3)(aa) could also be added:

“(aa) consult the Northern Territory Mining Minister; and”

Recommendation 17: That the Minister’s powers under ss 47(1)(d) and 47(3)(a) be excluded from delegation to the NT Mining Minister under s 76(2), and that a requirement to consult the NT Mining Minister be added to s 47(3).

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Funding of delegated functions

459. The delegation provisions of s 76(2), introduced by the 2006 Amendment Act, were not accompanied by any arrangement as to funding. It is self-evident that the extra duties imposed upon the NT Mining Minister by the delegation of the Minister’s functions would have imposed an additional cost burden.

460. The NT Government submitted that that cost burden ought to be shared between the Commonwealth and NT governments, rather than being borne solely by the NT Government. There was no information provided about the increased costs incurred by the NT Mining Minister by reason of accepting the additional delegated functions. The Review did not explore with FaHCSIA the extent to which costs had been saved by the delegation of the Minister’s functions. The Review notes that it is generally the view that the NT Mining Minister, in

performing the delegated functions, does so well and usefully. Beyond that, it is a matter between the Commonwealth and the NT Government as to the terms on which delegated functions are given and accepted.

Notification of intra-departmental delegation

461. The TLC suggested that written proof should be provided to Land Councils that the powers purportedly being exercised by a DME employee have in fact been properly delegated to that employee by the NT Mining Minister. It is not proposed that this suggestion become a recommendation of this Review. There has been no suggestion that there have been any difficulties arising from

the improper exercise of a ministerial function by a DME employee. Nor has there been any suggestion that the relevant delegation instrument would not be provided if requested. The Review simply notes those matters.

4.3. Compatibility of the relevant Commonwealth and NT legislation

Access authorities

462. Section 84 of the MT Act provides for the grant of “access authorities”, which grant a mineral titleholder a “right to enter land outside the title area [of a mineral title] … to construct, maintain and use infrastructure associated with conducting authorised activities under the mineral title.” The NT Mining Minister will only grant an access authority if the consent of all relevant landowners has been obtained. Obviously in the case of Aboriginal land that includes the consent of

traditional owners. As has been explained earlier in this Report, reg 76 of the MT Regs applies so as to permit an applicant to take a refusing landowner to the Lands, Planning and Mining Tribunal on the basis that the refusal is unreasonable. That might be considered, as the AMEC notes, contrary to the spirit of Part IV.

463. Moreover, it could be argued that an access authority falls within the definition of “mining interest” for the purposes of the ALR Act, which includes “any … right in respect of, land granted under a law of the [NT] relating to mining for minerals …” An access authority granted in relation to an ML could arguably be

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characterised in that way. That would mean that an access authority would be governed by s 46 of the ALR Act and would therefore require a Land Council agreement and the Minister’s consent.

464. The MCA and AMEC sought to import the NT Act provisions regarding the grant of “infrastructure facilities” into the ALR Act. An “infrastructure facility” for the purposes of the NT Act includes a road, railway, bridge, jetty, port, airport, landing strip, electricity-related facility, petroleum and mineral storage and distribution facility, dam, antenna, and so on. So it appears that an access authority would generally fall within the definition of an infrastructure facility.

465. Under s 24MD(6B) of the NT Act:

• the DME must notify native title parties of the proposed grant of an access authority and their right to object to it;

• the parties then have two months to make an objection;

• if an objection is received, the native title party must be consulted by the DME in relation to the proposed access authority. This consultation process will generally take a few months, but will be shorter than the right to negotiate procedure;

• if the objection cannot be resolved, the native title party may refer the objection to an ‘independent person or body’ to make a determination regarding the objection, which may be overruled by the NT Mining Minister in the interests of the NT.

466. Section 24MD(6A) of the NT Act has the effect that a native title party has the same rights in relation to the grant of an access authority as a freehold landowner. That would mean that the rights of landowners granted under the MT Act to refuse to consent to an access authority would appear to apply in addition to the

above NT Act consultation provisions.

467. Presumably, the AMEC and the MCA have proposed that these NT Act provisions be incorporated into the ALR Act as a compromise between merely treating the traditional owners like any other landowner under the MT Act, and dealing with access authorities as mining interests under Part IV of the ALR Act. That seems a good idea in principle. It does seem onerous to require that the requirements of s 46 of the ALR Act apply to any access authority application, when those requirements were primarily fashioned to deal with ML applications. At the same time, it is contrary to the intent of the ALR Act to deal with Aboriginal traditional owners as if they were merely ordinary landowners. Whether the provisions of s 24MD of the NT Act are an appropriate compromise is a question that should be the subject of negotiations and discussions between the relevant stakeholders in the future.

Recommendation 18: That consideration be given to incorporating provisions into the ALR Act similar to those set out in s 24MD of the NT Act for dealing with the grant of access to authorities.

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Repeal s 75 of the ALR Act

468. Section 75 stipulates that a “miner’s right” does not apply in relation to Aboriginal land. A “miner’s right” was a kind of title that existed under previous NT mining legislation. No such title is provided for under the MT Act. However, its definition is broad enough to arguably encompass titles and interests other than

the now-defunct miner’s right.

469. Therefore, many interested parties called for the repeal of s 75. Given the above, that seems to be a prudent recommendation.

Recommendation 19: That s 75, relating to miner’s rights, be repealed.

Incorporation of geothermal energy titles

470. Titles issued under the GE Act should be brought within the operation of Part IV. The reasons given by various interested parties, which have been outlined earlier in this Report, are convincing. No opposition has been encountered to this proposal. As noted above, the GE Act already envisages that titles issued under

it will be governed by Part IV. There is no good reason why such titles should be treated radically differently from mineral and petroleum titles.

Recommendation 20: That titles issued under the Geothermal Energy Act (NT) be brought within the operation of Part IV, by including:

(a) geothermal exploration permits under the definition of “exploration licence”; and

(b) geothermal retention licences under the definition of “exploration retention licence”.

471. As the NT Government noted, the incorporation of geothermal energy titles within the ALR Act makes it is necessary to update s 48(1A) so that moratorium periods run separately for each type of title (mineral, petroleum, and now geothermal). Section 48(1A) should be amended as follows:

“Subsections (1) to (4A) have 3 separate applications as follows:

(a) [remain in present form];

(b) the second application is in relation to minerals and for this purpose those subsections apply as if:

a. a reference to a refusal to consent to the grant of an exploration licence were a reference to a refusal to consent to the grant of an exploration licence in relation to minerals; and

b. a reference to an application under section 41 in respect of particular land or an area within that land were a reference to an application

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under section 41 in relation to minerals in respect of that land or an area within that land;

(c) the third application is in relation to geothermal energy and for this purposes those subsections apply as if:

a. a reference to a refusal to consent to the grant of an exploration licence were a reference to a refusal to consent to the grant of an exploration licence in relation to geothermal energy; and

b. a reference to an application under section 41 in respect of particular land or an area within that land were a reference to an application under section 41 in relation to geothermal energy in respect of that land or an area within that land.”

472. This would also require the insertion of a definition of geothermal energy in s 3 of the ALR Act in the following terms:

“geothermal energy has the meaning given by section 4 of the Geothermal Energy Act of the Northern Territory.”

Recommendation 21: That amendments to s 48(1A) and s 3 be made as recommended in this Report in order to ensure separate moratorium provisions run in relation to geothermal energy title applications.

Update definitions

473. In light of the new MT Act, a number of the definitions in the ALR Act require updating to make them compatible with the MT Act.

474. The definitions of “extractive mineral” and “mineral” do not reflect the definitions of those terms contained in the MT Act. It is recommended that they be amended to reflect those definitions.

Recommendation 22(1): That the definitions of “extractive mineral” and “mineral” in s 3 be amended so that they reflect the definitions of those terms contained in ss 10 and 9 respectively of the MT Act.

475. The definition of “exploration licence” needs to be updated to include geothermal exploration permits, as recommended in Recommendation 20. The NT Government recommended repealing all current paragraphs of this definition. That proposal should only be accepted in relation to paragraph (a), which deals with “prospecting authorities”, a type of mineral title that no longer exists. The

legislation referred to in paragraph (b) is not completely redundant due to s 119 of the Petroleum Act (NT). The legislation referred to in paragraph (c) is current. The repealed legislation referred to in paragraph (d) still has some application

100

by virtue of s 124(8) of the Lands Acquisition Act 1989 (Cth). Finally, it should also be made absolutely clear that this definition is not meant to encompass any extractive mineral title.

Recommendation 22(2): That the definition of “exploration licence” in s 3 be amended so that references to “prospecting authorities” are removed, and extractive mineral titles are specifically excluded.

476. The definition of “exploration retention licence” needs to be updated to incorporate geothermal retention licences, as covered in Recommendation 20. Also the MT Act calls its equivalent to an exploration retention licence an “exploration licence in retention”. There is no need to alter the name used in the

ALR Act to reflect this. Instead, the definition of “exploration retention licence” should simply be updated so that it refers to exploration licences in retention under the MT Act:

Recommendation 22(3): That the definition of “exploration retention licence” in s 3 be amended so that it refers to exploration licences in retention under the MT Act, and extractive mineral titles are specifically excluded.

477. The definition of “mining interest” does not require updating, other than specifically to exclude extractive mineral titles. The NT Government proposed that paragraphs (b) and (c) of the definition be removed because they refer to redundant legislation. As noted above, the legislation referred to appears to be not entirely redundant. The effect of Recommendation 22(3) also means there is no need to update references to exploration retention licences.

Recommendation 22(4): That the definition of “mining interest” in s 3 be amended so that extractive mineral titles are specifically excluded.

478. The definition of “intending miner” does not require updating. The NT Government suggests that references to exploration retention leases should be removed from the definition of intending miner. Perhaps it merely means that those references should be replaced by references to exploration leases in retention. If that is the case, Recommendation 22(3) to keep the wording “exploration retention lease” removes this need. If the submission is intended to

be a proposal that an ML applicant needs to hold an EL rather than an ELR in order to be an “intending miner” under the ALR Act, that proposal is rejected. Section 63 of the MT Act clearly envisages that an ML applicant holding an ELR would still fall within Part IV, and there is no good reason why this should not be the case. The NT Government proposes removing paragraph (b) of the definition,

again because it refers to redundant legislation. Again, that legislation is not entirely redundant for the reasons given.

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4.4. Restrictions placed on competition by Part IV

479. The issue of ‘land banking’, also known as ‘warehousing’, is one that has emerged in past reviews. ‘Land banking’ may be defined for present purposes as the deliberate, bad faith triggering of the moratorium provisions by exploration and mining companies so as to “freeze out” competitors from the area indefinitely. Such companies can then “sit on” the land until such time as it may be most financially beneficial to utilise the land.

480. There was a vague consensus amongst the interested parties that land banking still exists in the NT. However, the practice appears to be far from widespread, and no interested party seemed particularly concerned by it. The ATSIA Committee Report dealt with this issue in 1999, and its proposals on this issue were largely incorporated into the 2006 Amendment Act. While there is evidence that those changes - the power for the NT Mining Minister to withdraw the consent to

negotiate, and the power for a Land Council to apply for the moratorium to be lifted - have been rarely utilised, perhaps they have helped to have a deterrent effect.

481. The AMEC noted another uncompetitive aspect of Part IV. A practice apparently exists whereby the NT Mining Minister, in relation only to Aboriginal land ELs, does not insist upon the reduction of the size of an EL area every two years, as is ordinarily required by the MT Act. As the NT Government said in

interviews, the purpose of the reduction requirement is to implement a “use it or lose it” philosophy, thus encouraging high turnover of land for exploration. This practice clearly impedes upon such a philosophy, and to that extent discourages competition. However, no interested party expressed any concern about this

practice, including the AMEC, the interested party who brought the issue up.

482. In those circumstances, the reasoning advocated by the CLC, that some restrictions on competition are “essential to the achievement of the purpose of [Part IV]”, should be adopted in relation to both the issues identified above.

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CONCLUSION

483. The Terms of Reference identified the matters which the Review was to address, and to possible changes which would be likely to have support amongst sectoral stakeholders and be consistent with the objectives of the ALR Act.

484. The matters raised by the key stakeholders have been identified, and each of those matters addressed by this Report. A number of recommendations have been made which may facilitate the achievement of the objectives of the ALR Act.

485. It emerged that there was no strong discontent - with one qualification: the veto power of traditional owners - among the sectoral stakeholders in relation to the existing provisions and processes. Hence, the recommendations of the Report do not include any very significant legislative or procedural changes; they are largely changes at the margins.

486. In the Executive Summary, the Review discusses a few respects in which more significant changes might be seen to be warranted - subject to the support of all sectoral stakeholders - in the light of some further investigation. That is a matter which the Minister may wish to pursue if it is supported by the sectoral stakeholders, and in particular the traditional Aboriginal owners of Aboriginal land.

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APPENDICES

104

APPENDIX A: LETTER OF 7 SEPTEMBER 2012 CALLING FOR SUBMISSIONS

OFFICE OF THE ABORIGINAL LAND COMMISSIONER 5th Floor, 39-41 Woods Street, Darwin NT 0800

Telephone: (08) 8396 6324

Facsimile: (02) 6204 5386

GPO Box 9820

DARWIN NT 0801

7 September 2012 (By email and post)

Mr Mark Hewitt Chief Executive Officer Anindilyakwa Land Council PO Box 172 ALYANGULA NT 0885

mhewitt@alcnt.com.au julianne.uate-jones@alcnt.com.au

Mr Simon Bennison Chief Executive Officer Association of Mining & Exploration Companies

PO Box 948 WEST PERTH WA 6872

simon.bennison@amec.org.au

Mr David Byers Chief Executive Australian Petroleum Production and Exploration Association

GPO Box 2201 CANBERRA ACT 2601

appea@appea.com.au smain@appea.com.au sellis@appea.com.au

Mr David Ross Director Central Land Council PO Box 3321 ALICE SPRINGS NT 0871

julie-ann.stoll@clc.org.au david.ross@clc.org.au

Mr Finn Pratt Secretary Department of Families, Housing, Community Services & Indigenous

Affairs GPO Box 7576 Canberra Business Centre CANBERRA ACT 2610

finn.pratt@fahcsia.gov.au john.litchfield@fahcsia.gov.au

Mr Greg Shanahan Chief Executive Department of the Attorney-General and Justice, Northern Territory Government GPO Box 1722 DARWIN NT 0801

greg.shanahan@nt.gov.au

Mr Mike Burgess Chief Executive Department of the Chief Minister Northern Territory Government GPO Box 4396 DARWIN NT 0801

mike.burgess@nt.gov.au

Mr Alistair Trier Department of Mines & Energy, Northern Territory Government GPO Box 3000 DARWIN NT 0801

anita.kneebone@nt.gov.au alistair.trier@nt.gov.au gillian.sharkey@nt.gov.au

105

Mr Drew Clarke Secretary Department of Resources, Energy & Tourism GPO Box 1564 CANBERRA ACT 2601

drew.clarke@ret.gov.au michael.sheldrick@ret.gov.au

Mr Paul Grimes Secretary Department of Sustainability Environment, Water, Population

and Communities GPO Box 787 CANBERRA ACT 2601

paul.grimes@environment.gov.au fiona.fraser@environment.gov.au

Mr Tom Harris Chief Executive Officer Extractive Industry Association Northern Territory

extractindustry@bigpond.com

Dr Kevin Tuckwell Acting Executive Director Minerals Council of Australia NT Division

GPO Box 510 DARWIN NT 0801

info.nt@minerals.org.au drew.wagner@minerals.org.au

Mr Robert Graham Acting Chief Executive Officer Northern Land Council GPO Box 1222

DARWIN NT 0801

robert.graham@nlc.org.au matthew.punch@nlc.org.au

Mr John Hicks Secretary Tiwi Land Council PO Box 38545 WINNELLIE NT 0821

tiwilc@bigpond.com

Dear

Review of Part IV of the Aboriginal Land Rights (Northern Territory) Act 1976

I have been requested by the Minister for Families, Community Services and Indigenous Affairs under section 50(1)(d) of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act) to undertake this independent Review of Part IV of the Land Rights Act as required by clause 234 of Schedule 1 to the Aboriginal

Land Rights (Northern Territory) Amendment Act 2006. I am writing to you as a key stakeholder to invite you to participate in the review process.

I enclose a copy of the Terms of Reference.

As you will see, they include making direct contact with the key stakeholders, including your organisation, and ascertaining the views of sectoral stakeholders on:

• the extent to which the amendments to Part IV of the Land Rights Act contained in the Aboriginal Land Rights (Northern Territory) Amendment Act 2006 have achieved the stated objectives of the legislation, to promote economic development on Aboriginal land by providing for expedited and more certain processes related to exploration and mining on Aboriginal land;

• the extent to which the provisions of Part IV of the Land Rights Act are, in operation, consistent with the provisions of other parts of the Act;

106

• the extent to which the delegation of some functions and powers under Part IV of the Land Rights Act to the Northern Territory Mining Minister, subsequent to the commencement of the Aboriginal Land Rights (Northern Territory) Amendment Act 2006 have resulted in administrative and procedural efficiencies;

• the extent to which Commonwealth and Northern Territory legislation, relevant to exploration and mining on Aboriginal land in the Northern Territory, operates to promote compatibility and procedural efficiencies;

• the extent to which Part IV of the Land Rights Act operates to impose costs and confer benefits upon stakeholders;

• the extent to which the operation of Part IV of the Land Rights Act may restrict competition;

• the potential for amendments to Part IV of the Land Rights Act that would contribute to more efficient administration and improved outcomes in respect of exploration and mining on Aboriginal land in the Northern Territory; and

• such other matters as may be pertinent to the review.

The review will be publically advertised so that any interested party may participate.

You are requested to in participate in the Review. Would you please advise me of the name of your representative and their contact details? As the Review is to be completed by 31 December 2012, I would appreciate your response, together with a brief outline of any particular matters you consider should be addressed by the Review, by 24 September 2012.

I will then invite formal submissions, and provide an opportunity to consult with you in the subsequent period.

I look forward to hearing from you.

Yours faithfully

Justice John Mansfield AM Aboriginal Land Commissioner

Justice John Mansfield AM Tel. (08) 8219 1085

Commonwealth Law Courts Fax (08) 8219 1086

GPO Box 1350 Email: john.mansfield@fedcourt.gov.au

ADELAIDE SA 5001

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APPENDIX B: ADVERTISEMENT GIVING NOTICE OF REVIEW

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APPENDIX C: LIST OF ENTITIES THAT MADE WRITTEN SUB-MISSIONS

• Aboriginal Areas Protection Authority (sent 14 February 2013)

• Anindilyakwa Land Council (sent 13 November 2012)

• Association of Mining and Exploration Companies (sent 23 November 2012)

• Central Land Council (sent 7 February 2013)

• Extractive Industries Association of Australia (sent 15 February 2013)

• Federal Government, Department of Families, Housing, Community Services and Indigenous Affairs (sent 18 February 2013)

• Federal Government, Department of Resources, Energy and Tourism (sent 24 September 2012)

• Federal Government, Department of Sustainability, Environment, Water, Population and Communities (sent 26 September 2012)

• Government of the Northern Territory (sent 17 January 2013)

• Minerals Council of Australia (sent 15 February 2013)

• Northern Land Council (sent 25 February 2013)

• Tiwi Land Council (sent 3 December 2012, additional material sent 17 January 2013)

• Toro Energy Ltd (sent 18 September 2012)

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APPENDIX D: SUBMISSIONS RECEIVED

Aboriginal Areas Protection Authority

110

111

112

113

114

115

116

Anindilyakwa Land Council

117

118

Association of Mining and Exploration Companies

119

120

121

122

123

124

125

126

127

Central Land Council

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

Joint CLC and NLC responses

161

162

163

164

165

205

166

206

167

207

168

208

169

209

170

210

171

211

172

212

173

213

174

214

175

215

176

216

177

217

178

Extractive Industries Association of Australia

179

180

181

182

183

184

185

186

Department of Families, Housing, Community Services and Indigenous Affairs

226

Department of Families, Housing, Community Services and

Indigenous Affairs

187

227

188

228

189

Department of Resources, Energy and Tourism

229

Department of Resources, Energy and Tourism

190

230

191

Department of Sustainability, Environment, Water , Population and Communities

192

193

194

Government of the Northern Territory

195

196

197

198

199

200

201

202

203

204

205

206

207

208

209

210

211

212

213

214

215

ATTACHMENT A

216

217

218

219

220

221

222

223

224

225

226

227

228

229

230

231

232

233

234

235

236

237

Minerals Council of Australia

238

239

240

241

242

Northern Land Council

243

244

245

246

247

Tiwi Land Council

248

249

250

251

252

253

254

255

256

Toro Energy

257

258

259