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1.1. 2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ATOMIC ENERGY AMENDMENT (MINE REHABILITATION AND CLOSURE)
BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Resources and Minister for Northern Australia,
the Hon Madeleine King MP)
TABLE OF CONTENTS
GLOSSARY 1
OUTLINE 3
FINANCIAL IMPACT STATEMENT 4
CONSULTATION 4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS 5
NOTES ON CLAUSES 8
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GLOSSARY
Abbreviation Definition
Act Atomic Energy Act 1953
ALRA Aboriginal Land Rights (Northern Territory) Act 1976
Bill Atomic Energy Amendment (Mine Rehabilitation and Closure)
Bill 2022
EPBC Act Environment Protection and Biodiversity Conservation Act 1974
ERs Environmental Requirements of the Commonwealth of Australia
for the Operation of Ranger Uranium Mine (see Appendix A to
the Section 41 Authority dated 14 November 1999). In 2021,
the ERs could be viewed at www.industry.gov.au/regulations-
and-standards/regulating-the-ranger-uranium-mine
Historic Section 41 the authority under section 41 of the Atomic Energy Act that was
Authority conferred on Energy Resources of Australia Limited on 14
November 1999
Mine Operator The holder of the authority granted pursuant to the Atomic
Energy Act 1953
Minister The Minister with responsibility for administering the Bill, once
enacted (presently, the Minister for Resources and Water)
NT Northern Territory
NT Mining Minister The Minister who is responsible for administration of the law of
the Northern Territory relating to mining for minerals, currently
the Mining Management Act 2001 (NT). This expression has the
same meaning in the Bill as it does in the Aboriginal Land
Rights (Northern Territory) Act 1976
Part III Authority An authority conferred under section 41 or 41CA of the Atomic
Energy Act 1953, as defined in the Bill
Ranger Means the mine on the Ranger Project Area, located in the
Alligator River Region of the Northern Territory about 8 km east
of the township of Jabiru
Rehabilitation An authority conferred under section 41CA of the Atomic
Authority Energy Act 1953, as defined in the Bill
1
RPA Ranger Project Area as defined in Schedule 2 of the Aboriginal
Land Rights (Northern Territory) Act 1976
Section 41 Authority An authority granted under section 41 of the Atomic Energy Act
1953
2
ATOMIC ENERGY AMENDMENT (MINE REHABILITATION AND CLOSURE)
BILL 2022
OUTLINE
The Atomic Energy Amendment (Mine Rehabilitation and Closure) Bill 2022 (the Bill)
amends the Atomic Energy Act 1953 (the Act) to allow the Minister to preserve the regulatory
framework that applies to the Ranger Uranium Mine (Ranger) in the Northern Territory (NT).
Mining operations at Ranger have ceased. The mine is now in full time rehabilitation.
Ranger operates under a unique regulatory framework. Under an authority conferred under
section 41 of the Act in 1999 (the historic Section 41 Authority), the Mine Operator and
holder of that authority (currently Energy Resources of Australia Ltd) was authorised to mine
prescribed substances (i.e. uranium) at Ranger until 8 January 2021. That Section 41
Authority requires the Mine Operator to undertake and complete the rehabilitation of the
Ranger Project Area (RPA) in accordance with the Environmental Requirements of the
Commonwealth of Australia for the Operation of Ranger Uranium Mine (the ERs) at
Appendix A of that Authority. It is the only Section 41 Authority in force. A number of other
agreements between the Mine Operator, the Northern Land Council (NLC) and the Australian
Government support operations at the RPA. NT legislation also applies to these operations.
The historic Section 41 Authority remains in force until 8 January 2026. At that time it will
expire, irrespective of the Mine Operator's public and approved rehabilitation plans
indicating that the Mine Operator will need additional time to execute all proposed
rehabilitation and monitoring activities and demonstrate it has satisfied the ERs. This is
because the Act does not allow the Minister to vary (except in limited circumstances), renew
or extend the period in which a Section 41 Authority is in force. Similarly, the agreement
between the Commonwealth and the NLC made under section 44 of the Aboriginal Land
Rights (Northern Territory) Act 1976 (Cth) (ALRA), and which provides Traditional Owners'
approval for the Mine Operator to access the RPA, will also expire on 8 January 2026.
The Bill therefore amends the Act to allow the Minister to:
• confer a new Rehabilitation Authority on the Mine Operator for the express purposes
of authorising rehabilitation, remediation and monitoring operations at Ranger;
• vary the historic Section 41 Authority conferred on the Mine Operator to authorise the
carrying out of rehabilitation, remediation and monitoring operations and extend the
period in which the authority is in force. This provides an alternative pathway to
authorise rehabilitation activities at Ranger beyond 2026 should the Mine Operator
opt not to apply for a Rehabilitation Authority; and
• give effect to the RPA's progressive close-out by declaring that a Section 41 or
Rehabilitation Authority (both defined as a Part III Authority) conferred under the Act
will no longer be in force in relation to a part of the RPA for which the Mine Operator
is taken to have satisfied its rehabilitation requirements.
Amendments in the Bill are intended to preserve the longstanding regulatory framework at
Ranger until the Mine Operator has rehabilitated the RPA to the standard described in the
ERs. The ERs are publicly available and set out the environmental objectives and other
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requirements that the Mine Operator must achieve. Amendments in the Bill are not intended
to and do not support the making of significant changes to the ERs. The ERs have long
applied at Ranger and will continue to guide the Mine Operator's significant rehabilitation
activities into the future. Maintaining certainty of those requirements is therefore critical.
Progressive close-out, as described in the ERs, is the point at which the Mine Operator is
deemed to have satisfied the rehabilitation requirements in relation to a part of the RPA.
'Final Close-Out' is the point at which the Mine Operator is deemed to have satisfied the
rehabilitation requirements in respect of the whole of the RPA such that the Mine Operator
will have no further obligations at Ranger. As some parts of the RPA are less disturbed than
others, the ERs have long envisaged the RPA's progressive close-out. However, amendments
to the Act are needed to give this concept full effect, and provide that a Part III Authority will
cease to apply to a part of the RPA where the holder of that authority has satisfied the
rehabilitation requirements.
FINANCIAL IMPACT STATEMENT
The Bill has no financial impact and applies to a single project and a single operator.
CONSULTATION
The following entities have direct interests in the operations at Ranger. They provided
feedback to three exposure drafts of the Bill, and were also consulted throughout the policy
development process, including on the purpose and scope of amendments:
• Energy Resources of Australia Ltd (ERA)
• Gundjeihmi Aboriginal Corporation
• Northern Land Council (NLC)
• Northern Territory Government
Additional consultation was undertaken with relevant departments and agencies across the
Commonwealth, as well as other key stakeholders including:
• Attorney-General's Department
• Australian Conservation Foundation
• Department of Climate Change, Energy, the Environment and Water
• Department of Infrastructure, Transport, Regional Development, Communications
and the Arts
• Department of the Prime Minister and Cabinet
• Environment Centre Northern Territory
• Minerals Council of Australia
• National Indigenous Australians Agency
All stakeholders consulted accept the limitations within the Act and the need for amendment.
4
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Atomic Energy Amendment (Mine Rehabilitation and Closure) Bill 2022
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The purpose of the Bill is to amend the Atomic Energy Act 1953 (the Act) to maintain the
Australian Government's long term regulation of the Ranger Uranium Mine in the Northern
Territory (NT). Mining operations ceased in January 2021 and the Mine Operator has
commenced full time rehabilitation.
The Australian and NT Governments are jointly responsible for the regulation of Ranger. The
Act applies because prescribed substances located in the NT, including uranium, are owned
by the Commonwealth (in accordance with section 35 of the Act) and because an authority
conferred under section 41 of the Act (a Section 41 Authority) has authorised mining and
related activities at Ranger since 1979.
The first Section 41 Authority was conferred in 1979. The second Section 41 Authority was
conferred on the current mine operator in 1999. The latter remains in effect and is the only
Section 41 Authority in force under the Act. It authorised the Mine Operator (currently
Energy Resources of Australia Ltd) to mine uranium until 8 January 2021 and requires the
operator to undertake and complete the rehabilitation of the Ranger Project Area (RPA) in
accordance with the Environmental Requirements of the Commonwealth of Australia for the
Operation of Ranger Uranium Mine (the ERs) by 8 January 2026. The ERs are at
Appendix A to the historic Section 41 Authority. They are publicly available and set out the
environmental objectives and other requirements that the operator must achieve.
Without amendment of the Act, the Section 41 Authority will terminate on 8 January 2026
irrespective of whether the operator can execute all planned rehabilitation and monitoring
activities and demonstrate it has satisfied the ERs. The Act does not provide for the Minister
to vary, renew or extend a Section 41 Authority.
In summary, the Bill allows the Minister to:
• Confer a new Rehabilitation Authority on the Mine Operator (upon an application)
authorising rehabilitation and incidental activities, with the duration of that authority
to be determined following consultation with key stakeholders (Mine Operator,
Northern Land Council (NLC), and the NT Government).
• Vary the historic Section 41 Authority conferred on the Mine Operator to authorise
the carrying out of rehabilitation, remediation and monitoring operations and extend
the period in which the authority is in force. This provides an alternative pathway to
authorise rehabilitation activities at Ranger beyond 2026 should the Mine Operator
opt not to apply for a Rehabilitation Authority. This power may also be used, in very
5
limited circumstances, to vary a Rehabilitation Authority to extend the period in
which it is force, and to make other minor amendments. Any variation must not
change the standard of rehabilitation and can only occur after consultation with the
Mine Operator and the NLC.
• Declare that an authority conferred under the Act will cease to apply to a part of the
RPA in which the Mine Operator is deemed to have met its rehabilitation
requirements. This supports the site's progressive close-out and will allow
rehabilitated tracts of the RPA to be returned to Traditional Owners sooner.
The intent of these provisions is to preserve the longstanding regulatory framework at Ranger
until the Mine Operator has rehabilitated the RPA to the standard described in the ERs.
Amendments in the Bill are not intended to and do not support the making of significant
changes to the ERs which have long applied at Ranger and which are supported by Ranger's
stakeholders, including the organisations representing the land's Traditional Owners.
The Bill does not necessitate any consequential amendments to other Commonwealth
legislation.
Human rights implications
This Bill engages with the right to enjoy and benefit from culture and the right to self-
determination.
Ranger is Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976
(ALRA). The Mine Operator is currently authorised to access the RPA in accordance with a
section 44 ALRA agreement (negotiated between the Commonwealth and the NLC). This
agreement will also terminate on 8 January 2026. Provisions in the Bill will maintain the
operation of section 44 of the ALRA as it applies to the RPA--Part IV of the ALRA, as in
force immediately before the commencement of the Aboriginal Land Rights (Northern
Territory) Amendment Act (No 3) 1987, and the longstanding relationship between an
authority conferred under the Act and an agreement made under the ALRA.
For example, the Bill provides that the Minister must not confer a Rehabilitation Authority,
or vary a Section 41 Authority, to authorise the Mine Operator's remaining rehabilitation
operations beyond 2026 unless the land access agreement between the relevant Land Council
and the Commonwealth under section 44 of the ALRA has been amended or extended. This
ensures the land's Traditional Owners are consulted, and able to exercise meaningful control
over their affairs and the decisions that affect them.
Passage of the Bill, and the subsequent conferral or variation of an authority that would have
the effect of authorising the Mine Operator's ongoing rehabilitation activities, may adversely
impact Traditional Owners' access to traditional lands and right to enjoy and benefit from
culture. However, this is considered appropriate in these circumstances. The Bill will allow
the Minister to preserve the Mine Operator's legal requirement to rehabilitate the RPA to
achieve a condition similar to the surrounding environment. Successful rehabilitation will
ultimately support Traditional Owners' rights to self-determination and to enjoy and benefit
from culture. To support this and Traditional Owners' post-mining land use objectives,
Traditional Owner representative bodies provide input into aspects of the Mine Operator's
6
rehabilitation plans that, when completed, will contribute to Traditional Owners' enjoyment
and reconnection to Country (e.g. the design of the landform constructed over a mined-out
pit, the species composition for the site's revegetation). Further, as the Minister cannot confer
or vary an authority under the Act unless a new or amended section 44 agreement is in force,
Traditional Owners' approval for the Mine Operator to access the RPA and the temporary
adverse effect on rights is for a long-term benefit.
Conclusion
This Bill is compatible with human rights as, to the extent that it engages human rights issues,
it does so in a positive way. Although there is some temporary adverse impact on Traditional
Owners' rights to enjoy and benefit from culture on the RPA, there is an associated long-term
benefit and the temporary adverse impact is appropriate. The Mine Operator, NLC,
Gundjeihmi Aboriginal Corporation and the NT Government have all been consulted on the
Bill and support its intent.
Minister for Resources and Minister for Northern Australia, the Hon Madeleine King
MP
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ATOMIC ENERGY AMENDMENT (MINE REHABILITATION AND CLOSURE)
BILL 2022
NOTES ON CLAUSES
Clause 1: Short title
1. This is a formal provision specifying the short title of the Act which is the Atomic
Energy Amendment (Mine Rehabilitation and Closure) Act 2022.
Clause 2: Commencement
2. The table in this clause sets out the commencement date for when the Bill's provisions
commence.
3. All provisions of the Bill will commence the day after the Bill receives Royal Assent.
Clause 3: Schedules
4. This clause gives effect to the provisions in the Schedule to the Bill.
Schedule 1 - Authorities under the Atomic Energy Act 1953
Part 1 - Amendments
Item 1: Subsection 5(1)
5. This item defines terms and expressions used throughout the Bill in order to avoid
doubt and clarify the intended meaning of each word for the purposes of the Bill.
6. 'Mining-related operations' is defined in and used throughout the Bill to distinguish
between those operations that were (and could be) authorised under the historic Section
41 Authority, and those operations that may (and can) be authorised by a Rehabilitation
Authority after commencement. Mining-related operations are described in paragraph
41(2)(c). The Bill provides, at subsection 41CA(2), that a Rehabilitation Authority
cannot authorise mining-related operations.
7. 'Rehabilitation requirement' is defined in and used throughout the Bill in recognition of
the change in operations that may be authorised under the Act. Whereas the Mine
Operator's rehabilitation of the RPA is a condition of its authority to carry on mining
under the historic Section 41 Authority, the Bill provides that a Section 41 Authority or
Rehabilitation Authority may also impose rehabilitation requirements that are direct,
positive obligations on the holder of that authority. Rehabilitation requirements are
conceived to cover a broad range of activities that may be considered a part of the
overall rehabilitation, such as ongoing monitoring on the land.
Item 2: Before section 41
8. This item inserts a new Division heading, 'Division 1 - Authority to mine etc.'.
9. Provisions in Division 1 will enable a Section 41 Authority to explicitly authorise the
Mine Operator's rehabilitation activities at Ranger by expanding the scope of the
authorised operations. Changes in Division 1 are necessary because, in the event the
Mine Operator does not apply for a Rehabilitation Authority and the Minister varies the
8
historic Section 41 Authority in accordance with Division 4, mining will no longer be
an authorised operation and the Section 41 Authority could not then be said to be an
authority to mine prescribed substances.
Item 3: Before subsection 41(1)
10. This item inserts a new heading 'Minister may confer authority' to subsection 41(1) of
Part III-The Ranger Project to aid readability of that section.
Item 4: Subsection 41(1)
11. This item is intended to remove the part of this subsection that allowed the Minister to
consider (and subsequently authorise) mining of a prescribed substance because this
requirement no longer applies. There may still be a prescribed substance but the
Minister can no longer authorise that it be mined.
Item 5: Subsection 41(1)
12. This item updates this subsection to make it clear that 'that land' refers to the whole or
a specified part of land in the RPA. This language is used elsewhere in the Bill in
relation to a Section 41 Authority and a Rehabilitation Authority. It recognises that an
authority may cease to apply to a specified part of the RPA pursuant to the progressive
close-out provisions in Division 3.
Item 6: Before subsection 41(2)
13. This item inserts a new heading 'Powers under authority' to subsection 41(2) of Part
III-The Ranger Project to aid readability of that section.
Item 7: Subsection 41(2)
14. Item 7 amends subsection 41(2) by stating that while the authority is in force, the
authority holder is authorised to continue with operations, works, etc. subject to any
conditions or restrictions specified in the authority as well as any requirements imposed
by the authority. Requirements are able to be explicitly imposed in an authority under
new subsections 41(2AC), (2AD) and (2AE), inserted by item 11.
Item 8: After paragraph 41(2)(c)
15. This item expands the activities or operations that the holder of a Section 41 Authority
may be authorised to do or carry on in the RPA (or part of the RPA) to include
operations relating to the protection, rehabilitation, remediation or monitoring of the
land.
16. The purpose of new paragraph 41(2)(ca) is to explicitly allow for rehabilitation
activities to be authorised under a Section 41 Authority.
17. The purpose of new paragraph 41(2)(cb) is to remove any doubt that the Minister may
authorise operations specifically included in the authority in addition to the operations
listed in subsection 41(2). For example, operations may include works and activities
associated with or incidental to rehabilitation.
Item 9: Paragraph 41(2)(d)
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18. This item amends paragraph 41(2)(d) to insert a reference to the new paragraphs
41(2)(ca) and (cb).
Item 10: After subsection 41(2)
19. This item provides for new subsections 41(2AAA) and 41(2AAB).
20. Subsection 41(2AAA) expands and clarifies the scope of operations that can be
authorised for the purposes of new paragraph 41(2)(cb). It has been included to retain
the flexibility to allow operations to be authorised through the authority that might only
apply to a part of the RPA. Operations may include works and activities associated with
or incidental to rehabilitation. The scope to vary the authority is limited by Division 4.
21. The purpose of subsection 41(2AAB) is to remove any doubt that a Section 41
Authority may include a condition or restriction that prohibits or limits the rights of the
holder of the authority from doing any operations outlined in subsection 41(2). This
would enable the Minister to vary a Section 41 Authority to expressly prohibit
operations for discovering, mining, recovering, treating and processing prescribed
substances.
Item 11: After subsection 41(2AB)
22. This item inserts new subsections 41(2AC), (2AD) and (2AE). These provisions are
needed to remove any doubt that an authority which was conferred under section 41
and originally authorised mining and incidental activities may now include conditions,
restrictions and requirements associated with rehabilitation.
23. Subsection 41(2AC) confirms that a Section 41 Authority may specify conditions or
restrictions to which that authority is subject. This would put beyond doubt that a
Section 41 Authority can specify conditions and restrictions with which the Mine
Operator must comply when undertaking authorised operations.
24. Subsections 41(2AD) and (2AE) expand on this by providing that a
Section 41 Authority may impose requirements on the holder of an authority, and that
those requirements may relate to the protection, rehabilitation, remediation or
monitoring of land.
25. These provisions make it explicit that a Section 41 Authority can impose obligations
directly on the Mine Operator, rather than specify conditions or restrictions on activities
the Mine Operator is authorised to carry on. In the event that the historic Section
41 Authority is varied, subsections 41(2AD) and (2AE) can be used to impose a direct
obligation on the Mine Operator to comply with the ERs, rather than being a condition
or restriction to conducting mining activities.
26. This item also inserts a new heading 'Period when authority is in force' to subsection
41(2A) to aid readability of that section.
Item 12: Subsection 41(2A)
27. This item amends subsection 41(2A) to make it clear that the period of time in which a
Section 41 Authority is in force is subject to the new Division 3 of Part III. This is
10
necessary to give effect to the progressive close-out of the RPA. Division 3 allows the
Minister to declare that an authority, or specified provisions of an authority, are no
longer in force in relation to all or part of the RPA where the Mine Operator is taken to
have satisfied its rehabilitation requirements.
Item 13: Paragraphs 41(2A)(a) and (b)
28. This item repeals existing paragraphs 41(2A)(a) and (b) and inserts new paragraphs (a)
to (c) which list the circumstances in which a Section 41 Authority may cease to be in
force before the expiration of the period for which the authority is conferred.
29. Currently, a Section 41 Authority will be in force for the period for which it is
conferred unless it is terminated in accordance with a condition or restriction of the
Authority, or revoked under a provision of the Act. These circumstances are retained
but clarified and expanded in new paragraphs 41(2A)(a), (b) and (c).
30. Paragraph 41(2A)(a) provides for a circumstance in which the term of a
Section 41 Authority, or the period in which that authority is in force, may be extended
pursuant to new subsection 41CK(2) in the event a Rehabilitation Authority under
Division 2 is not conferred.
31. Paragraph 41(2A)(b) recognises that in addition to termination through Division 3 of
the Bill, a Section 41 Authority will terminate if a Rehabilitation Authority is conferred
under a provision of the Act that also provides for termination (such as section 41CF),
or under a provision of the authority itself if one exists.
32. Paragraph 41(2A)(c) references that a Section 41 Authority can be revoked under
sections 41CQ and 41CR of the Act or under a provision of the authority.
Item 14: At the end of subsection 41(2A)
33. This item inserts a new note at the end of subsection 41(2A) which states that the
Minister may declare that a Part III Authority is no longer in force in relation to a part
of the RPA for which the Minister has issued a declaration pursuant to new Division 3.
This note is included to aid readability, noting subsection 41(2A) is now subject to
Division 3 and both relate to the period for which an authority will continue in force. A
Part III Authority is defined in the Bill to include both a Section 41 Authority and
Rehabilitation Authority.
Item 15: Before subsection 41(3)
34. This item inserts a new heading, 'Vesting of property in Commonwealth' to subsection
41(3) to aid readability of that subsection.
Item 16: Subsection 41(4)
35. This item repeals subsection 41(4), as it has now been superseded by new
section 41CX.
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Item 17: Section 41A
36. This item repeals the whole of section 41A because new Division 4 provides for the
variation and revocation of Part III authorities, which includes a Section 41 Authority.
Item 18: After section 41C
37. This item inserts new Divisions 2 to 5 into Part III of the Act, after section 41C.
38. This Division establishes arrangements for the application, conferral and contents of a
new class of authority under the Act, a Rehabilitation Authority.
39. Whereas provisions in Division 4, reflected in amendments to Division 1, enable the
Minister to vary the Mine Operator's historic Section 41 Authority to extend the period
for which it is force, provisions in Division 2 establish an alternative pathway to
authorise the Mine Operator's rehabilitation activities at the RPA beyond 2026.
40. Provisions in Division 2 recognise that mining operations at Ranger have ceased, and
allow the Minister to authorise the Mine Operator to conduct only rehabilitation and
associated activities.
Section 41CA Authority to carry out rehabilitation etc.
41. New subsection 41CA(1) allows the Minister to confer a Rehabilitation Authority
which authorises a person or persons to carry out specified operations relating to the
protection, rehabilitation, remediation or monitoring of land in the RPA, provided
subsections 41CA(4), (5) and (6) have been satisfied.
42. The scope of the operations that a Rehabilitation Authority may authorise relating to the
protection, rehabilitation, remediation or monitoring of the land under subsection
41CA(1) is deliberately broad. Some flexibility is necessary given the diversity of the
Mine Operator's current and planned rehabilitation activities at Ranger (which are
subject to significant, separate assessment processes) and the need to adaptively
respond to matters arising over the course of the remaining rehabilitation and
monitoring period which is estimated to be another 20 years at this time.
43. In recognition of this, paragraph 41CA(1)(b) provides that a Rehabilitation Authority
may authorise a person or persons to carry out specified operations of another kind.
This allows, by way of example, a Rehabilitation Authority to explicitly authorise the
Mine Operator to continue to operate Jabiru Airport in the RPA if desirable.
44. The scope of operations that may be authorised by a Rehabilitation Authority is
however constrained by new subsection 41CA(2), which states that a Rehabilitation
Authority must not authorise the carrying on of mining and related activities.
45. New subsection 41CA(3) confirms that there is no limit on the number of
Rehabilitation Authorities that may be granted to a person or persons. Read alongside
section 41CF, this provision means that multiple Rehabilitation Authorities could be
successively conferred, but only one Rehabilitation Authority would be in force at any
one time.
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46. New subsection 41CA(4) states that before conferring a Rehabilitation Authority, the
Minister must give the person or persons who have applied for that authority written
notice of, and the person or persons must advise the Minister of their agreement to, the
proposed terms of that authority. Those terms are listed in subparagraphs 41CA(4)(a)(i)
to (iv) and include the operations, duration, conditions, restrictions and requirements
associated with the proposed Rehabilitation Authority. Paragraph 41CA(4)(c) further
provides that the terms of the Rehabilitation Authority conferred on a person or persons
must be the same as those earlier proposed by the Minister and agreed by the applicant
under paragraph 41CA(4)(b).
47. This requirement that the applicant for a Rehabilitation Authority agree to the proposed
terms of that authority is consistent with arrangements in place at the time of the
conferral of the historic Section 41 Authority on the Mine Operator in 1999. In practice,
the terms of any new Rehabilitation Authority will be developed in consultation with
Ranger's stakeholders.
48. New subsections 41CA(5) and (6) impose further limitations on the Minister's ability to
confer a Rehabilitation Authority. These provide that the Minister must not confer a
Rehabilitation Authority on a person or persons unless there is first an agreement of the
kind referred to in subsection 44(2) of the ALRA in place (subsection 41CA(5)) and the
Minister has consulted with the relevant Land Council (subsection 41CA(6)). In
relation to Ranger, the relevant Land Council is the NLC.
49. Subsections 41CA(5) and (6) are necessary and important because Ranger is on
Aboriginal land and Ranger's Traditional Owners, represented by the NLC, are its key
stakeholders.
50. The requirement under subsection 41CA(5) that there be an agreement in place between
the relevant Land Council and the Commonwealth under section 44 of the ALRA (as it
applies to the RPA) before a Rehabilitation Authority is conferred has been included to
explicitly maintain existing arrangements at Ranger, and to ensure that the Mine
Operator's long term rehabilitation operations are supported by appropriate land access
arrangements. The current agreement between the NLC and the Commonwealth for the
purposes of section 44 of the ALRA will expire in 2026 and without a new or amended
agreement in force, the Mine Operator will not be able to lawfully access the RPA to
undertake rehabilitation works and activities if a Rehabilitation Authority is conferred.
51. New subsection 41CA(7) outlines the period of time for which a Rehabilitation
Authority will be in force.
52. Aside from a Rehabilitation Authority ceasing to apply in accordance with Division 3, a
Rehabilitation Authority will terminate if a new Rehabilitation Authority is conferred
under section 41CF, or if a provision in the authority provides for termination.
53. A Rehabilitation Authority can only be revoked if a provision of the authority provides
for this - only a Section 41 Authority can be revoked under new section 41CR.
54. Subsection 41CA(8) states that the Minister must give a copy of the Rehabilitation
Authority to the person or persons who will hold the authority, the relevant Land
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Council, the Commonwealth Environment Minister and the NT Mining Minister. This
ensures that relevant stakeholders are aware of the operations the Mine Operator is
authorised to carry on at the RPA, and the conditions, restrictions and requirements
with which the Mine Operator must comply.
Section 41CB Application for rehabilitation authority
55. New section 41CB sets out who may apply for a Rehabilitation Authority and when.
Subsection 41CB(1) states that an application for a Rehabilitation Authority can only
be made by the holder of the historic Section 41 Authority, or Rehabilitation Authority.
Provision for the latter is included in the event the Mine Operator applies for and is
conferred multiple sequential Rehabilitation Authorities over the course of the
rehabilitation period. The Mine Operator may assign their interest in a Rehabilitation
Authority in accordance with section 41B and new section 41CG of the Act.
56. Subsection 41CB(2) states that there is no limit on the number of times a person may
apply for a Rehabilitation Authority. Again, this allows for the possibility that the Mine
Operator may wish to hold more than one Rehabilitation Authority over the course of
Ranger's rehabilitation, and corresponds with the Minister's ability to confer more than
one Rehabilitation Authority on a person under subsection 41CA(3).
57. The Mine Operator's ability to apply for a Rehabilitation Authority at any time is
constrained by the operation of subsections 41CB(4) to (5) which establish periods of
time within which an application for a Rehabilitation Authority must be made.
58. Where the application for a Rehabilitation Authority is made by the holder of the
historic Section 41 Authority, subsection 41CB(4) states that the application must be
made within 18 months of the commencement date or such later time determined by the
Minister. In the event the Mine Operator fails to apply for a Rehabilitation Authority
within the specified timeframe, the Minister may vary the historic Section 41 Authority
under the provisions in Division 4.
59. Subsection 41CB(5) establishes the application period for a further Rehabilitation
Authority. It provides that a person on whom a Rehabilitation Authority is conferred
may apply for a further Rehabilitation Authority at any time but not later than 12
months before the period in which the authority is in force will end, or such later time
determined by the Minister.
60. The Minister may under subsection 41CB(6) determine in writing a later time for an
application to be made, for the purposes of subparagraphs 41CB(4)(b)(ii) and (5)(b)(ii).
61. Subsection (7) states that the determination of a later time to make an application is not
a legislative instrument. A determination under subsection (6) falls within the class of
instruments which are stated not to be legislative instruments in item 29 of the table in
section 6 of the Legislation (Exemptions and Other Matters) Regulation 2015. This
determination is administrative in nature and is likely to occur as part of Ranger's day-
to-day administration. There are no penalties if an application is not made within the
timeframe.
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Section 41CC Powers under rehabilitation authority
62. New section 41CC expands upon and clarifies the operations that a Rehabilitation
Authority may authorise the holder of that authority to carry out or do. In addition to
the carrying out of operations relating to the protection, rehabilitation, remediation or
monitoring of land in the RPA (where they are expressly referred to in subsection
41CC(1)), a Rehabilitation Authority may authorise operations related, necessary or
convenient to the matters listed in paragraphs 41CC(1)(a) to (d).
63. These matters largely refer back to the operations listed in amended subsection 41(2),
including authorisation to enter into and demolish buildings and structures on the RPA.
In light of the diversity of approved rehabilitation activities at Ranger, potential matters
for which a Rehabilitation Authority may authorise are deliberately broad.
64. The operations that a Rehabilitation Authority may authorise do not extend to mining or
associated activities.
Section 41CD Rehabilitation authority may impose conditions, restrictions and
requirements
65. Section 41CD provides that a Rehabilitation Authority may specify conditions and
restrictions to which the authority is subject as well as imposing requirements on the
person or persons on whom the authority is conferred. Conditions may specify where
requirements imposed on the holder of the authority are taken to be satisfied for part of
the RPA as described in section 41CH (i.e. conditions as to how the RPA will be
closed-out).
66. Requirements have been included in addition to restrictions and conditions to make
explicit that the authority can impose positive obligations on the Mine Operator
directly, and not just conditions or restrictions to authorised operations. This is
consistent with the addition of subsections 41(2AD) and (2AE) discussed above.
67. Requirements may include those relating to Ranger's rehabilitation (which are also
subject to section 41CE below) or other requirements, such as a requirement that the
Mine Operator, as the holder of the authority, keep proper documents.
Section 41CE Rehabilitation authority must impose rehabilitation requirements
68. New section 41CE states that a Rehabilitation Authority must impose rehabilitation
requirements on the holder of the authority. A rehabilitation requirement is defined in
the Bill to mean a requirement that relates to the protection, rehabilitation, remediation
or monitoring of the whole or part of the RPA.
69. Paragraph 41CE(1)(b) further provides that rehabilitation requirements imposed by a
Rehabilitation Authority must be substantially similar to the environmental
requirements imposed by the historic Section 41 Authority.
70. The intent of this section is twofold. Firstly, incorporation of the concept of
rehabilitation requirements is consistent with other provisions of the Bill which enable
the Minister to impose positive obligations directly on the holder of a Part III Authority
15
via that authority, in addition to specifying conditions and restrictions on authorised
operations under subsection 41(2AD) or section 41CD.
71. Secondly, paragraph 41CE(1)(b) provides an overarching certainty and confidence to
the Mine Operator and Traditional Owners, if transitioning from the historic Section 41
Authority to a new Rehabilitation Authority, by requiring that any rehabilitation
requirements imposed by a Rehabilitation Authority must be substantially similar to the
ERs in force at the time of commencement.
72. Compliance with the ERs annexed to the historic Section 41 Authority has underpinned
the Mine Operator's operations, progressive rehabilitation and rehabilitation planning at
Ranger for some time. The ERs are also well understood and accepted by key
stakeholders. Maintaining certainty of the Mine Operator's substantive rehabilitation
requirements is therefore critical.
73. Requiring that any rehabilitation requirements imposed on a Rehabilitation Authority
must be substantially similar to those set out in the current ERs prevents the Minister
from imposing requirements would have the effect of substantially increasing, or
lessening, the standard of rehabilitation required at Ranger.
74. However, this provision does provide scope for a Rehabilitation Authority to amend the
rehabilitation requirements described in the historic Section 41 Authority provided that
they are substantially the same as the ERs. For example, a change could be made to the
process by which a requirement is achieved (an assessment of Ranger's rehabilitation
performance against approved closure criteria), which does not substantially change the
requirement (that the Mine Operator must rehabilitate the RPA to establish an
environment similar to the adjacent area). This scope is necessary to ensure that a
Rehabilitation Authority can support the progressive close-out of the RPA. Any
amendments to requirements will build on and be consistent with existing provisions of
the ERs, which have long envisaged the RPA's progressive close-out.
Section 41CF Termination of previous Part III authorities
75. New section 41CF provides for the termination of a Part III Authority on the
commencement of a new Rehabilitation Authority. This ensures that only one authority
is in force over the RPA at any given time.
76. The holder of the previous Part III Authority must consent to the proposed termination
of that authority before the new Rehabilitation Authority can commence. This is to
ensure that the process to terminate a Part III Authority is transparent, and the holder of
the previous Part III Authority is sufficiently aware and involved in the process, taking
into account any possible impacts the termination might have on the previous holder.
77. If the Mine Operator opts not to apply for a Rehabilitation Authority, and the historic
Section 41 Authority is instead amended or extended, this provision simply has no
effect.
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Section 41CG Assignment of interests in rehabilitation authority
78. New section 41CG applies section 41B of the Act to a Rehabilitation Authority in the
same way as it applies to a Section 41 Authority. The holder of a Rehabilitation
Authority is able to assign their interest in that authority with the Minister's consent.
Division 3 - Close out of Part III authorities
79. Division 3 provides a two-stage process to give effect to the progressive close-out of
the RPA. Close-out is defined in the ERs as the point at which the Mine Operator is
deemed to have met the requirements of clause 2 of the ERs, and the Mine Operator's
rehabilitation obligations under the historic Section 41 Authority will cease to apply.
80. Division 3 establishes this process by, firstly, providing that a Part III Authority may
specify conditions which describe how and when a rehabilitation requirement imposed
by that authority will be taken to have been satisfied and, secondly, providing that the
Minister may declare that an Authority is no longer in force in respect of an area of land
where applicable rehabilitation requirements are taken to be satisfied.
81. Clause 2 of the ERs includes the requirement, amongst other things, that the Mine
Operator must rehabilitate the RPA to establish an environment similar to the adjacent
area of Kakadu National Park such that, in the opinion of the Minister, the rehabilitated
area could be incorporated into Kakadu. No part of the RPA has achieved close-out at
this time. Final Close-out is defined as the point at which the Mine Operator is deemed
to have satisfied the rehabilitation requirements in respect of the whole of the RPA. .
Section 41CH When rehabilitation requirements are taken to be satisfied in relation to
an area of land
82. New subsection 41CH(1) provides that a Part III Authority may specify the conditions
under which the rehabilitation requirements imposed on the holder of a Part III
Authority are taken to be satisfied. New subsection 41CH(2) further provides that those
conditions may, by way of example, specify an assessment process or confer a
determinative function on another.
83. This section will enable the Minister, after consulting with stakeholders, to specify
conditions in a Part III Authority that clarify procedural arrangements related to close-
out, building on and consistent with the relevant clauses of the existing ERs. In general
terms, these are considered to be 'close-out conditions' for Ranger.
84. Conditions may include closure criteria and metrics that the holder of the authority
must meet over a period of time; and documents and reports that the authority holder is
required to provide relating to Ranger's performance against those criteria and metrics.
For example, relevant NT legislation currently provides that the Mine Operator must
demonstrate successful closure of the RPA by satisfying specified closure criteria. In
this example, a condition of the Part III Authority could have the effect of specifying
that the Minister may consider the Mine Operator's performance against these closure
criteria when determining if a rehabilitation requirement will be taken to be satisfied.
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85. Some clauses of the ERs broadly describe how the holder of the historic
Section 41 Authority will be deemed to have satisfied its rehabilitation requirements.
For example, clause 9.3 of the ERs provides that the Supervising Authority (i.e. the NT
Mining Minister) may issue the Mine Operator a close-out certificate stating that the
Mine Operator's obligations cease in relation to a part of the RPA provided the
Supervising Scientist and the NLC agree that the Mine Operator has met its
rehabilitation requirements in respect of that part. Section 41CH allows a Part III
Authority to set out a more detailed assessment process by which the Minister, and
specified others, will determine when the rehabilitation requirements can be taken to be
satisfied. Paragraphs 41CH(2)(a) and (b), for example, will allow the roles and
responsibilities of the Supervising Authority, Supervising Scientist and NLC in
assessing whether the Mine Operator has met its rehabilitation requirements, as
described in the ERs, to be replicated in a future Part III Authority.
86. Clarifying how the Minister will determine if the Mine Operator is taken to have
satisfied its rehabilitation requirements will provide stakeholders with greater certainty
about the pathway to Ranger's eventual close-out.
87. Consistent with the broader need to maintain certainty with respect to the Mine
Operator's obligations in relation to close-out, new section 41CK of the Bill constrains
the Minister's ability to impose conditions that are inconsistent with, or vary or remove
conditions that may already exist in an authority.
Section 41CI When authority is no longer in force in relation to an area of land
88. New subsection 41CI(1) provides that the Minister may declare, in writing, that a
Part III Authority (or specific provisions of the authority) is no longer in force in
relation to any part of the RPA. The note under subsection 41CI(1) clarifies that such a
declaration may relate only to specified provisions of the authority (in which case other
provisions of the authority would remain in force in relation to that part) and that the
authority remains in force in relation to other areas of land in the RPA.
89. As some parts of the RPA are relatively undisturbed or require little rehabilitation, it is
likely that the Minister will make several declarations pursuant to subsection 41CI(1)
over the course of the rehabilitation period. While the language of subsection 41CI(1)
provides that a declaration may relate to all, or specified provisions of an authority, in
practice it is unlikely that all of the Mine Operator's requirements in respect of a part of
the RPA would cease to apply upon a single declaration by the Minister. The language
in subsection 41CI(1) maintains flexibility.
90. Subsection 41CI(2) limits the Minister's ability to make a declaration to those parts of
the RPA for which the rehabilitation requirements imposed by the Part III Authority
have been satisfied. These are the rehabilitation requirements and conditions provided
for in section 41CH. Paragraphs 41CI(2)(b) and (c) further provide that the Minister
must seek the agreement of the authority holder and consult with the Land Council
before making a declaration. Paragraphs 41CI(2)(b) and (c), in particular, will ensure
18
key stakeholders are in agreement that an authority, or specified provisions of an
authority, should cease to apply in respect of a part of the RPA.
91. Subsection 41CI(3) provides that a declaration under subsection (1) has effect for the
purposes of the Act. This ensures that the Part III Authority, or specified provisions of a
Part III Authority, no longer operate in respect of the RPA or a specified part thereof as
set out in the declaration.
92. Subsection 41CI(4) states that the Part III Authority will terminate at the time (or at
another, specified time) at which the Minister makes what is, in practice, the final
declaration. This is the declaration that has the effect that no provisions of the Part III
Authority are in force in relation to any part of the RPA. This corresponds to the point
of Final Close-out in the ERs. The Mine Operator's authorisation to conduct
rehabilitation and associated activities at Ranger, and its rehabilitation and other
obligations under a Part III Authority will cease. This, in addition to termination upon
conferral of a further Rehabilitation Authority, is the only way a Rehabilitation
Authority may be terminated. It is not possible for a Rehabilitation Authority to be
revoked, except under a provision of the authority.
93. Subsection 41CI(5) states that the Minister must give a copy of the declaration to the
holder of the authority, the relevant Land Council, the Commonwealth Environment
Minister and the NT Mining Minister.
94. The requirement at subsection 41CI(2) that the Minister obtain the holder of the
authority's agreement before making a declaration under subsection 41CI(1) is
necessary because the holder of the authority will lose its ability to lawfully carry out
operations in that part of the RPA at that time. There is no requirement that the Minister
obtain the agreement of the Land Council or other stakeholders because, by the time the
Minister gets to the point of making a declaration, specified stakeholders will have
provided their advice or agreement that the Mine Operator has satisfied its
rehabilitation requirements in respect of that part (as per the detailed close-out
assessment process enabled by subsection 41CH(1) and the provisions of a future Part
III Authority). The Minister's consultation and notification requirements at subsections
41CI(2) and (5) are therefore appropriate.
95. Subsection 41CI(6) states that the Minister's declaration under this division is not a
legislative instrument. Further, a declaration falls within the class of instruments which
are stated not to be legislative instruments in item 14 of the table in section 6 of the
Legislation (Exemptions and Other Matters) Regulation 2015. The Minister's
declaration can only be made after consultation with specified stakeholders, and after
considering the requirements and conditions stated in the authority which may give
these stakeholders additional advisory or decision-making functions.
Division 4 - Variation and revocation of Part III authorities
96. Division 4 sets out the circumstances in which the Minister may vary a Part III
Authority and revoke a Section 41 Authority. The circumstances for both are
19
necessarily limited in line with the overarching intention of the Bill to preserve
Ranger's longstanding regulatory framework.
97. The Minister's ability to vary the conditions and restrictions of a Part III Authority, in
particular, is narrow and is not intended to extend to variations that would have the
effect of changing the standard of rehabilitation that the Mine Operator must achieve
and which is described in the ERs. The new provisions however provide adequate
scope for the Minister to respond flexibly to a project of Ranger's complexity and
duration.
98. The Minister's ability to revoke an authority is also limited. In practice, the only way an
authority could be revoked is through the terms of the authority itself.
Section 41CJ Variation of Part III authorities--overview
99. Section 41CJ provides that a Part III Authority can only be varied by the Minister in
accordance with section 41CK or through a provision of the authority that provides for
it to be varied.
100. The note included in this section is intended to confirm that provisions dealing with
variation do not affect the ability of the authority holder to assign their interest in a
Part III Authority under section 41B of the Act. An assignment of an interest in the
authority is not a variation.
Section 41CK Minister may vary Part III authority
101. New section 41CK sets out the four circumstances in which the Minister may vary a
Part III Authority.
102. Subsection 41CK(1) allows the Minister to vary a Part III Authority if the authority
holder has failed to comply with a condition, restriction or requirement of the authority
and the Minister considers that the proposed variation is an appropriate response to that
failure. This replicates the Minister's existing powers with respect to the authority
holder's failure or refusal to comply with a condition or restriction of a
Section 41 Authority in subsection 41A(4) of the Act.
103. Subsection 41CK(2) allows the Minister to vary the authority to extend the period in
which the authority is in force. This provision will allow the Minister to extend an
authority if necessary to prevent the authority from expiring before the Mine Operator
has completed rehabilitation. New section 41CO constrains when the Minister can
extend the timeframe of a Rehabilitation Authority.
104. Subsection 41CK(3) allows the Minister to vary the authority where they consider a
variation is necessary to ensure the continued effective and proper operation of the
authority. This variation will enable the Minister to make necessary technical, operative
and administrative variations to relevant clauses of the authority to maintain the legal
effect of the authority. For example, subsection 41CK(3) would enable the Minister to
update priority clauses, definitions, or references to other agreements that are in force
following their variation or renegotiation, particularly references to an agreement under
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section 44 of the ALRA. It is not intended to support substantive changes to the ERs or
rehabilitation requirements in the authority.
105. Subsection 41CK(4) allows the Minister to vary the authority to include new conditions
which describe when the requirements imposed by the authority are taken to be
satisfied. In practice, this provision is intended to allow the historic Section 41
Authority to be varied to incorporate close-out conditions, or conditions which specify
where requirements imposed on the holder of the authority are taken to be satisfied for
part of the RPA as described in new Division 3. This provision is not intended to allow
the Minister to include conditions which change the standard of rehabilitation. The
Minister may also vary a Rehabilitation Authority to include conditions of this nature.
However, the provision must be read in conjunction with subsection 41CK(5).
106. Subsection 41CK(5) constrains the Minister's ability to vary a Part III Authority
pursuant to subsection (4) by providing that while a variation can add additional
conditions, it cannot vary, remove or be inconsistent with any existing close-out
conditions in the authority. This constraint means the Minister's variation cannot, by
way of example, change the roles and responsibilities of parties in the close-out
assessment process that are outlined in the historic Section 41 Authority. Clause 9.3 of
the ERs requires the agreement of the Supervising Scientist and the NLC before the
Supervising Authority may issue a close-out certificate over part of the RPA.
Subsection 41CK(4), when read in conjunction with subsection (5), would not support
the Minister to remove or vary this existing requirement for stakeholder agreement.
This constraint does not apply to minor changes of a technical nature. For example,
conditions could be varied to update cross-referencing.
107. Subsection 41CK(6) confirms that each of the provisions that allow the Minister to vary
an authority are independent of each other. There is no limit on the number of times the
Minister may vary the authority but section 41CO sets out constraints on when the
Minister can vary an authority, depending on whether it is a Section 41 Authority or
Rehabilitation Authority).
Section 41CL Variation of Part III authorities--agreement with Land Council must be
in force
108. New section 41CL states that the Minister must not vary a Part III Authority unless an
agreement between the Commonwealth and a Land Council developed under section 44
of the ALRA is in force.
109. The existing agreement between the Commonwealth and NLC made under section 44
of the ALRA, and which authorises entry on to the RPA, will expire on 8 January 2026.
In the event that the historic Section 41 Authority is varied to authorise rehabilitation
and other activities at Ranger after 8 January 2026, Section 41CL provides that the
Minister cannot vary said Authority unless an appropriate agreement under section 44
of the ALRA is in place. This section 44 agreement would, by way of example, allow
the entry on to, and conduct of, authorised operations at the RPA beyond 2026. This
21
replicates the requirement to have a section 44 agreement in place before a Minister
may confer a Rehabilitation Authority under subsection 41CA(5).
110. This item relates to the ongoing application of section 44 of the ALRA, as it applies to
the RPA. Part IV of the ALRA, as in force immediately before the commencement of
the Aboriginal Land Rights (Northern Territory) Amendment Act (No 3) 1987, applies
in relation to the RPA, notwithstanding the fact that it has been repealed. Part IV of that
Act has been frozen since 1987.
Section 41CM Variation of Part III authorities--consultation
111. New section 41CM outlines the consultation requirements that the Minister must follow
before varying a Part III Authority. It provides that the Minister must not vary an
authority unless the Minister first consults with the holder of that authority, the relevant
Land Council and the Commonwealth Environment Minister.
112. These requirements broadly align with other consultation provisions in the Bill and
ensure that the Minister consults with the Mine Operator and the statutory body
representing Ranger's Traditional Owners before making a decision affecting the
conduct of authorised activities at Ranger. The Minister's consultation with the
Commonwealth Environment Minister in this instance will provide an additional level
of oversight and environmental protection.
113. New section 41CN also requires the Minister to notify the authority holder before
varying the authority.
Section 41CN Variation of Part III authorities--notice etc.
114. New subsection 41CN(1) states that if the Minister intends to vary a Part III Authority,
the Minister must first give the holder of that authority written notice of that intention,
and a reasonable opportunity to respond to the proposed variation. New section 41CM
also requires the Minister to consult other specified parties.
115. Following the Minister's variation of a Part III Authority, subsections 41CN(2) and (3)
require the Minister to give written notice of the variation to the authority holder, and to
provide copies of the instrument of variation (i.e. the varied authority) to the authority
holder, the relevant Land Council, the Commonwealth Environment Minister and the
NT Mining Minister. This ensures Ranger's key stakeholders, the majority of whom the
Minister will have already consulted, are notified of decisions affecting the authorised
activities at Ranger.
116. Consultation and notification requirements in new sections 41CM and 41CN give
Ranger's stakeholders proper opportunity to make representations on the Minister's
proposed variation of a Part III Authority and are appropriate. The provisions do not
require the Minister to obtain the consent of the authority holder or any other party
before varying a Part III Authority. This is appropriate given the narrow scope of the
Minister's powers to vary an authority under section 41CK, and the operation of other
provisions which also constrain the Minister's ability to vary an authority, including
sections 41CL and 41CS.
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Section 41CO Variation of Part III authorities--timing
117. Provisions of new section 41CO limit the Minister's ability to vary the conditions and
restrictions of a Part III Authority under section 41CK by establishing time periods
within which variations will be permitted. This is consistent with the broader need to
maintain certainty of Ranger's regulatory framework and allow the Minister to vary an
authority only in necessary, specified circumstances.
118. Subsections 41CO(1) and (2) apply only to the Minister's variation of a Section 41
Authority. Subsection (1) provides that the Minister must not vary a Section 41
Authority until after the period which the holder of that authority has to apply for a
Rehabilitation Authority has lapsed. This is the timeframe described in paragraph
41CB(4)(b), being 18 months from commencement or a time determined by the
Minister. This gives the holder of the historic Section 41 Authority sufficient
opportunity to apply for a Rehabilitation Authority, and relevant parties sufficient time
to negotiate the necessary section 44 ALRA agreement (refer subsection 41CA(5)).
There is no limit on the number of times a Section 41 Authority can be varied after this
time.
119. Subsection 41CO(2) allows the Minister to vary a Section 41 Authority where the
holder of the authority has applied for a Rehabilitation Authority within the application
period but fails to agree to the proposed terms of that authority within a reasonable
period of time. This provision is necessary to enable the Minister to extend the period
for which the historic Section 41 Authority is in force, and prevent the expiry of that
authority, should the holder of the authority not agree or delay agreement to the terms
of the new Rehabilitation Authority.
120. Subsections 41CO(3) and (4) relate to the Minister's proposed variation of a
Rehabilitation Authority pursuant to subsection 41CK(2), when that variation will have
the effect of extending the period in which the authority is in force. These provisions
prevent the Minister from extending the Rehabilitation Authority unless the holder of
that authority has failed to apply for a further Rehabilitation Authority within the
applicable timeframe or has applied for a further Rehabilitation Authority but failed to
agree the proposed terms of that authority within a reasonable period. This is consistent
with the limitations imposed on the Minister's ability to extend a Section 41 Authority,
and will enable the Minister to prevent a Rehabilitation Authority from expiring before
rehabilitation is complete.
121. 'Reasonable period' is not defined in the Bill. In practice, it is expected that the
Minister would specify in the notice of the Minister's intention to vary a Part III
Authority when the period for the person to agree would end. The references to a
'reasonable period' in this section retains flexibility (for example, to extend the time
specified by the Minister based on the person's circumstances).
122. Subsection 41CO(5) confirms that subsections (3) and (4) apply only to variations that
would extend the period in which a Rehabilitation Authority is in force, and not to any
other variation made under section 41CK. Restricting the Minister's power to vary an
23
authority in the event the Mine Operator fails to comply with a condition of that
authority, for example, would be inappropriate.
123. Sections 41CN and 41CM describe the consultation and notification processes the
Minister must follow before and after varying a Part III Authority.
Section 41CP Variation of Part III authorities--other matters
124. New subsection 41CP(1) provides that a variation under section 41CK takes effect from
the day specified in the instrument of variation (i.e. the varied authority) or on the day
after the day when notice of the variation was given, whichever is later.
125. New subsection 41CP(2) confirms that the instrument of variation is not a legislative
instrument. An instrument of variation under subsection (1) also falls within the class of
instruments which are stated not to be legislative instruments in item 14 of the table in
section 6 of the Legislation (Exemptions and Other Matters) Regulation 2015. The
making of a Part III Authority as varied from time to time is administrative in nature
and is already subject to adequate notification and consultation requirements as set out
in new sections 41CM and 41CN.
Section 41CQ Revocation of Part III authorities--overview
126. New section 41CQ outlines the two circumstances in which the revocation of a Part III
authority may occur. Firstly, a Section 41 Authority can be revoked in accordance with
sections 41C or 41CR of the Act. This preserves the ability of the holder of the historic
Section 41 Authority to request revocation in the original section 41A of the Act.
Secondly, section 41CQ confirms that a Part III Authority may be revoked if a
provision in the authority provides for revocation.
Section 41CR Minister may revoke authority under section 41
127. New subsection 41CR(1) allows the Minister to revoke a Section 41 Authority, but only
on an application by the authority holder and if the Minister is satisfied that the
authority holder has satisfied all conditions and restrictions to which the authority is
subject or requirements imposed by the authority. New subsections 41CR(2) to (5)
provide further information on this process.
128. Subsection 41CR(2) enables the holder of a Section 41 Authority to apply in writing for
a revocation under subsection (1). Subsection 41CR(3) requires the Minister to consult
with the relevant Land Council before the authority is revoked, consistent with other
consultation provisions throughout the Bill. Subsection 41CR(4) provides for when a
revocation takes effect. Subsection 41CR(5) states that the Minister must give a copy of
the instrument of revocation to Ranger's key stakeholders, including the authority
holder, the relevant Land Council, the Commonwealth Environment Minister and the
NT Mining Minister. This supports transparency in the Minister's decision-making with
respect to Ranger.
129. Finally, subsection 41CR(6) provides that the instrument of revocation is not a
legislative instrument. An instrument of revocation under subsection 41CR(1) falls
within the class of instruments which are stated not to be legislative instruments in item
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14 of the table in section 6 of the Legislation (Exemptions and Other Matters)
Regulation 2015. The making of the instrument is administrative in nature and only
occurs on application by the authority holder and after appropriate consultation.
130. New section 41CR is not intended to provide an alternative method for the holder of an
authority to terminate that authority or for that authority to cease to be in force. Rather,
section 41CR replicates subsections 41A(2) and (3) of the Act which have been
repealed, preserving the holder of historic Section 41 Authority's existing right to apply
for that authority to be revoked where it has satisfied the conditions and restrictions to
which the authority is subject. The Mine Operator has never lodged an application for
revocation and, given rehabilitation is not yet near or nearing completion, is unlikely to
ever do so.
131. In the event the Mine Operator's current authority transitions to a new Rehabilitation
Authority, that Rehabilitation Authority will terminate or cease to be in force in relation
to the whole of the RPA under three scenarios: upon conferral of a further
Rehabilitation Authority as per section 41CF, upon Final Close-out in accordance with
Division 3, or in accordance with a term of a future Rehabilitation Authority, if
applicable.
Section 41CS Variation and revocation must be consistent with Commonwealth
obligations
132. New section 41CS replicates existing subsection 41A(8) of the Act and requires that
any variation or revocation of a Part III authority must be consistent with all other
Commonwealth obligations under any agreements entered into by the Commonwealth
under the ALRA as they apply to the RPA.
Division 5 - Other matters relating to Part III authorities
133. This Division outlines the other matters that will apply to a Part III Authority. The
intent of many of these provisions is to support or give effect to other provisions in the
Bill, or to satisfy more contemporary drafting requirements.
Section 41CT Conferral of functions and powers
134. New section 41CT provides that a Part III Authority may confer functions and powers
on a person or body in relation to a matter connected to that authority. The intention is
to ensure that a future Part III Authority can preserve or replicate those aspects of the
historic Section 41 Authority that confer decision-making or advisory powers on
persons that are not the Minister.
135. For example, clause 9 of the ERs provides that the Mine Operator must prepare a
rehabilitation plan for the approval of the Minister and the Supervising Authority. The
Supervising Authority is subsequently defined in the ERs as the person having
responsibility under an 'applicable law'. In practice, this is the NT Mining Minister at
this time. Clause 3 of the ERs states that the Supervising Scientist, a position
established under the Environment Protection (Alligator Rivers Region) Act 1978, may
25
determine background values for key variables in water quality at Ranger from time to
time.
136. While there is no equivalent provision in the Act, this new section is considered
necessary in the context of contemporary drafting standards and Ranger's longstanding
regulatory framework where the Commonwealth and Northern Territory Ministers have
decision-making responsibilities, and other stakeholders have specified roles and
functions.
Section 41CU Incorporation of matters in other instruments
137. New section 41CU states that a Part III Authority may make a provision dealing with a
matter contained in an instrument or other document by incorporating it as in force
from time to time.
138. This new section will allow a provision of a future Part III Authority to incorporate or
adopt by reference matters relevant to Ranger's rehabilitation and which are set out in a
separate, specified document. For example, NT legislation requires the Mine Operator
to meet specified closure criteria in respect of the site. Section 41CU will allow a future
Part III Authority to make reference to closure criteria which have been approved by
stakeholders from time to time, in turn ensuring consistency of obligations imposed on
the Mine Operator.
139. Incorporation of documents as they exist from time to time will support the efficient
operation of the legislation without having adverse effects on stakeholders. This is
because stakeholders will be consulted on the contents of a future Part III Authority and
asked to agree the documents that are intended to be incorporated into that authority.
Section 41CV Part III authority not a legislative instrument
140. New section 41CV states that a Part III Authority is not a legislative instrument. A Part
III Authority falls within the class of instruments which are stated not to be legislative
instruments in item 14 of the table in section 6 of the Legislation (Exemptions and
Other Matters) Regulation 2015. The making of an authority is administrative in nature
and will follow extensive consultation with key stakeholders. The Bill includes several
provisions which either require the Minister to seek the agreement of the applicant or
authority holder, or to consult with specified stakeholders, before making a decision in
respect of a Part III Authority.
Section 41CW Exemption from Part 3 of the Environment Protection and Biodiversity
Conservation Act 1999
141. New section 41CW exempts actions that are authorised by a Rehabilitation Authority or
the historic Section 41 Authority from parts of the EPBC Act provided that the action is
taken in accordance with any condition or restriction to which the Authority is subject
to, or any requirement that has been imposed.
142. This section has the effect of exempting authorised activities from requiring assessment
and approval under Part 3 of the EPBC Act. By exempting activities in the RPA from
26
requiring assessment and approval under Part 3, the section also has the effect that Parts
7-9 of the EPBC Act would not be engaged.
143. As the operation of the section is limited to the historic Section 41 authority under
which mining activities have already ceased, and a Rehabilitation Authority cannot
authorise mining, the section is only intended to apply to activities relating to the
protection, rehabilitation, remediation or monitoring of land in the RPA. This section is
not intended to change or limit the Mine Operator's other requirements and obligations
that may exist within the EPBC Act.
144. This section is intended to give stakeholders certainty about the application of the
Commonwealth's regulatory framework at Ranger by explicitly stating that the
continuing rehabilitation activities taken in accordance with a relevant Part III
Authority at Ranger do not require assessment and approval under Part 3 of EPBC Act.
Ranger was approved based on the recommendations of the Ranger Uranium
Environmental Inquiry, which considered the environmental impacts of proposed
activities throughout 1975-1977 pursuant to the now-repealed Environment Protection
(Impact of Proposals) Act 1974. The environmental conditions and requirements
applying at Ranger are set out in the historic Section 41 Authority which has been in
force since 1999.
145. The regulatory framework applying to Ranger ensures the rehabilitation continues to
undergo assessment by the Commonwealth and NT governments, informed by the
independent advice from the Supervising Scientist with input from Traditional Owner
representative bodies. Rehabilitation is also subject to ongoing monitoring and
verification undertaken by the Supervising Scientist.
Section 41CX Restrictions under the Aboriginal Land Rights (Northern Territory) Act
1976 on entry onto land etc.
146. New section 41CX ensures the continued application of section 44 of the ALRA as it
applies to the RPA despite a Rehabilitation Authority only authorising rehabilitation
rather than authorising mining for minerals.
147. The Act continues to be an Act authorising the mining for minerals for the purposes of
the ALRA.
Section 41CY Concurrent operation of State and Territory laws
148. New section 41CY states that the laws and regulations of a State or Territory continue
to operate concurrently with this Act except where limited by regulations made under
the Act. This preserves existing arrangements where there is joint operation of
Commonwealth and NT legislation for Ranger matters. There are no current regulations
made under the Act.
Item 19: Before section 41D
149. This item inserts a new heading for Division 6 into Part III of the Act to delineate the
provisions in the Act that deal with offences and compensation.
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Item 20: Subsection 41D(1)
150. This item repeals and substitutes subsection 41D(1) to include refusal to comply with a
requirement in the scope of the offence.
151. The subsection previously applied to the holder of a Section 41 Authority's refusal to
comply with a condition or restriction of an authority. The amendment is intended to
make explicit that refusal to comply with a requirement of an authority is also subject to
the same penalties as refusal to comply with a condition or restriction. This amendment
is necessary to reflect the language elsewhere in the Bill, particularly in new
subsection 41(2AD) and new section 41CD.
152. There is no change to the relevant penalty units (20 penalty unit in case of a natural
person; 100 penalty units for a body corporate).
Item 21: Subsection 41D(2)
153. This item repeals and substitutes subsection 41D(2) to include failure to comply with a
requirement in the scope of the offence.
154. The subsection previously applied to the holder of a Section 41 Authority's failure to
comply with a condition or restriction of an authority. The amendment is intended to
make explicit that failure to comply with a requirement of an authority is also subject to
the same penalties as refusal to comply with a condition or restriction. This amendment
is necessary to reflect the language elsewhere in the Bill, particularly in new
subsection 41(2AD) and new section 41CD.
155. There is no change to the relevant penalty units (20 penalty unit in case of a natural
person; 100 penalty units for a body corporate).
Item 22: Section 42 (heading)
156. This item amends section 42 of the Act by repealing the current heading and
substituting it with a new heading, 'Compensation for certain matters' to aid
readability.
Item 23: Paragraph 42(b)
157. This item amends paragraph 42(b) by inserting a reference to section 41CA to ensure
the provision also applies to anything done in pursuance of both a Section 41 Authority
and Rehabilitation Authority.
Item 24: At the end of Part III
158. This item inserts new section 43 into the Act dealing with provisions for compensation
for acquisition of property. If the operation of this part of the Act (i.e. Part III) would
result in an acquisition of property within the meaning of the Constitution other than on
just terms, the Commonwealth is liable to pay a reasonable amount of compensation to
the person (i.e. the authority holder). If an agreement on the amount of compensation
cannot be reached, the authority holder may institute proceedings in the Federal Court
of Australia or the Supreme Court of a State or Territory.
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159. The intention of this item is that section 42 operates in the first instance, and then
section 43 operates.
Part 2 - Application provisions
160. Part 2 of Schedule 1 of the Bill provides application provisions of the amendments to
the Act. These are necessary to ensure that the amendments have the intended effect of
preserving the regulatory framework by applying them to the historic Section 41
Authority.
Item 25: Application - Part III authorities
161. Subitem 25(1) provides for the application of amendments to section 41 of the Act that
apply to a Section 41 Authority, regardless of when that authority came into force.
162. Subitem 25(2) provides for the application of a termination of a previous Part III
Authority under section 41CF of the Act, as inserted by the Schedule to this Bill,
regardless of when that authority came into force.
163. Subitem 25(3) provides for the application of Division 3 of Part III of the Act for the
close-out of a Part III Authority, as inserted by the Schedule to this Bill, regardless of
when the authority came into force.
164. Subitem 25(4) provides for the application of Division 4 of Part III of the Act for the
variation and revocation of a Part III Authority, as inserted by the Schedule to this Bill,
regardless of when the authority came into force.
165. Subitem 25(5) provides for the application of section 41CT of the Act for the conferral
of functions and powers, as inserted by the Schedule to this Bill, regardless of when the
authority came into force.
166. Subitem 25(6) provides for the application of section 41CV of the Act for the
incorporation of matters in other instruments, as inserted by the Schedule to this Bill,
regardless of when the Part III Authority came into force.
167. Subitem 25(7) provides for the application of section 41CW of the Act and for the
incorporation of matters in other instruments, as inserted by the Schedule to this Bill,
for actions that are taken on or after commencement, regardless of when the Part III
authority came into force.
Item 26: Application - offences
168. Item 26 provides for the application of subsections 41D(1) and (2) of the Act, as
amended by the Schedule to this Bill, in relation to offences. The subsections as
amended only apply to acts and omissions that occur after the commencement of this
item and Part III Authorities regardless of when the authority came into force.
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