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MINING AND PETROLEUM (ABORIGINAL LAND RIGHTS) AMENDMENT BILL 2007
SERIAL NO. 104
Included in the Commonwealth amendments are new powers to be exercised by the Northern Territory Mining Minister, in particular the powers to withdraw or re-issue consent to negotiations between an applicant and the Land Councils. Furthermore, the new provisions allow for delegation of powers by the Commonwealth Minister in the ALRA to the Northern Territory Mining Minister relating to exploration and mining on Aboriginal Land.
The purpose of this Bill is to enact complementary provisions to those enacted by the Federal Parliament to Part IV (Mining) of the ALRA amendments. Part IV of the ALRA deal specifically with mineral and petroleum exploration and mining on Aboriginal land. The amendments are intended to provide a more transparent, streamlined approach to gaining access on Aboriginal land by enabling the Northern Territory government to have a greater role in what is primarily a Northern Territory land management issue.
Clause 1. Short Title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Mining and Petroleum (Aboriginal Land Rights) Amendment Act 2007.
Clause 2. Commencement
States that the Act will commence on 1 July 2007.
Clause 3. Act Amended
Identifies the Act to be amended – the Mining Act.
Clause 4. Amendment of section 137 (No negotiations without Minister’s consent)
Sub-clause 1 - Establishes the principle whereby a person may not enter into negotiations with a Land Council with respect to gaining the Council’s consent to the grant of an exploration licence until such time as the Minister has consented to the person entering into those negotiations.
Sub-clause 2 - The Minister will only give consent to negotiations being entered into where a person has lodged an application for an exploration licence. It is anticipated that consent to negotiations will not be issued until such time as the Minister considers the application meets all requirements of sections 39 and 162 as to the form and substance of the application.
Sub-clause 3 - Upon receipt of a satisfactory application the Minister is required to advise the relevant Land Council in writing that the application has been received.
Sub-clause 4 - The Minister has the discretion to either give or refuse consent to negotiations between the applicant and the relevant Land Council. It is not considered that the lodgment of a satisfactory application will automatically give rise to the granting of the Ministers consent.
Sub-clause 5 - Where two or more satisfactory applications have been lodged over the same parcel of land, the Minister will only give consent to one applicant entering into negotiations with the Land Council for that particular land parcel. The Minister may only give consent to negotiations to the other applicant entering into negotiations once the original negotiations consented to are concluded.
Sub-clause 6 - This clause is self explanatory.
Sub-clause 7(a) - This sub-clause endorses the new power of the Minister granted by the ALRA amendments. This clause needs to be read in conjunction with the ALRA, section 42(1B). This section provides the NT Mining Minister with the power to withdraw consent in situations where the Land Council has not made a decision to either refuse or grant an application prior to the end of the negotiating period.
Sub-clause 7(b) - The intention of this clause is to simply clarify the Minister’s right to refuse an application, even where consent to negotiations has been granted. It further confirms that in the event the Minister does refuse the application, then consent to negotiate is taken to be withdrawn. It is not intended to afford the Minister with what would be, in effect, a veto on the grant of an exploration licence application at the conclusion of party negotiations.
Furthermore, it is considered that in the rare situation where an applicant cannot progress the application due to an unforeseen and irreparable situation (such as the applicant company may be in administration or declared bankrupt), then the Minister may withdraw his consent to negotiate and/or refuse the application, thereby allowing other explorers the opportunity to apply for the land.
Sub-clause 8 - This clause endorses a new requirement of the ALRA amendments where it was deemed necessary to empower the Minister to re-issue or give consent to negotiations in circumstances where the Minister had previously either refused or withdrawn his consent to negotiations or where specific provisions of the ALRA deem the Minister’s consent to negotiations have been withdrawn.
Sub-clause 9 – This clause has been added to clarify that where consent to negotiations has been refused or withdrawn by the Minister, this does not of itself imply that the Minister has refused the application per se. Refusal of the application would occur as a separate matter under section 162A, and following the Minister’s consideration of the possibility of re-issuing consent to negotiate.
Sub-clause 10 - Defines;
‘ALRA’, as the Aboriginal Land Rights (Northern Territory) Act 1976 of the Commonwealth.
Defines ‘concluded’ to include situations where the applicant withdraws their application, the Minister withdraws his consent to negotiations or where the Land Council notifies in writing its decision to either consent or refuse to consent to the grant of the exploration licence.
Defines ‘consent’ to negotiations to mean the Minister’s consent to an applicant of an exploration licence to enter into negotiations with the relevant Land Council for the Council’s consent to the grant of the exploration licence in accordance with section 42 of the ALRA.
Defines ‘Minister’ to have the same meaning as the Northern Territory Mining Minister as defined in the ALRA.
A ‘note’ has been included into the section to highlight to readers the need to read the section in conjunction with Part IV of the ALRA as well as drawing the readers attention to section 76 of the ALRA which enables the Commonwealth Minister to delegate certain powers in Part IV of the ALRA to the Northern Territory Minister for Mines and Energy.
Clause 5. Act Amended
Identifies the Act to be amended – the Petroleum Act.
Clause 6. Amendment of section 13 (No negotiations without Minister’s consent)
This clause is identical to the substitute clause 137 of the Mining Act above, subject to a few minor variances:
The clause refers to an exploration ‘permit’ for consistency with all other clauses within the Petroleum Act.
Sub-clause 2 - The form and substance of an application for a petroleum exploration permit is found at section 16 of the Petroleum Act.
Sub-clause 9 - Refusal of an application would occur under section 20(3) of the Petroleum Act.