Navigating the NT planning framework and development on Aboriginal land

Unlike the Australian mainland states, the Northern Territory has a single planning scheme which is applied to the whole Territory, except for the town of Jabiru within the Kakadu National Park. Under the Northern Territory Planning Scheme, the zoning of a place will dictate whether a use or development of land is:

1. permitted without the consent of the consent authority
2. self-assessable
3. permissible only with the consent of the consent authority, or
4. prohibited.

The Planning Act 1999 (NT) (Planning Act) sets out the application framework for obtaining the consent of the consent authority. Under s 46, development applications must include various assessments, including demonstrating a proposed development’s compliance with the Planning Scheme, its merits, and the land’s suitability for that purpose.

Local councils can make submissions regarding development applications however, they do not have powers to assess or decide development applications or amend the Planning Scheme. Instead, the Minister for Lands, Planning and Environment has the power to amend the Planning Scheme, and the Development Consent Authority and the Minister determine development applications.

Large areas of the Northern Territory are not zoned under the Planning Scheme. In these areas, the Planning Act does not impose land use controls, with the exception of clearing over one hectare of native vegetation or subdividing land. However, various other legislation can restrict development in these areas, especially where First Nations peoples hold rights and interests over the land.

Fifty per cent of the Northern Territory is owned by Traditional Owners, so there is a high likelihood that developers in the Northern Territory will need to consider and negotiate with Land Councils.

Development in remote areas of the Northern Territory, such as mining interests, renewable energy generation (although in 2025, the Northern Territory government abandoned its 50% target for renewable energy ) and development on pastoral leases needs to account for the rights of Traditional Owners in ways that are not legally enshrined in all parts of the country. Outlined below are some examples of how development in the Northern Territory needs to be planned in the context of its unique legislative framework.

Pastoral leases

The High Court decision of The Wik Peoples v State of Queensland and Ors [1996] HCA 40 famously recognised that the granting of a statutory pastoral lease does not extinguish native title rights. In the Northern Territory, pastoral leases are subject to a reservation in favour of Aboriginal people which permits Aboriginal persons who ordinarily reside on the leased land or are entitled to use or occupy the land under cultural tradition, to enter and be on the leased land, and to use and take water, animals and vegetation.

Interfering with those rights is an offence under s 38(5) of the Pastoral Land Act 1992 (PLA), which may be particularly relevant in the context of developing non-pastoral uses of leased land. Introduced in the Pastoral Land Amendment Act 2013, Part 7 of the PLA allows pastoral lessees to obtain permits to develop leased land for non-pastoral purposes, such as tourism, forestry, commercial accommodation and horticultural activities.

Mining interests

The Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) was the first piece of Australian legislation that allowed First Nations peoples to be granted title over their traditional lands. This differs from the rights recognised in the later Native Title Act 1993 in that the ALRA allows for the grant of an estate in the land to Land Trusts. Aboriginal Land Trusts hold title to lands and exercise powers as the owner of the land for the benefit of the Aboriginal group.

In the Northern Territory, pursuant to s 40 of the ALRA, exploration licences cannot be granted in respect of Aboriginal land without the consent of the area’s Land Council. The exception to this rule is if the Governor-General declares that the national interest requires that the licence be granted. Where the Mining Minister has given consent for a person to enter negotiations with a Land Council for the consent of the Land Council to grant an exploration licence, the person can submit an application for consent to the grant of an exploration licence from the Land Council.

In considering whether to consent to the grant of a licence, Land Councils must consult Traditional Owners of the lands who would be affected by the licence. Under s 42(6) of the ALRA, Land Councils must not consent to the grant of the licence unless it is satisfied that the Traditional Owners understand and consent to the terms and conditions of the licence. This effectively grants Traditional Owners the ability to veto proposed mining activities on their land.

The applicant and the Land Council can also agree that the terms and conditions of the licence should be dealt with by arbitration or determined by conciliation.

If the Land Council consents to the applicant being granted an exploration license, and the applicant makes a commercially viable discovery under the exploration licence, it then needs to apply for a mineral lease. While the Land Council’s consent is not needed for the grant of a mineral lease, the mineral lease will not be granted in respect of Aboriginal land unless the relevant Land Council and the mining company have entered an agreement under s 46 of the ALRA as to terms and conditions, and Minister has consented to grant of the mining interest.

Therefore, how a development can be made to be beneficial to First Nations owners of the land must be a primary concern for any person wishing to mine on Aboriginal land in the Northern Territory.

Key takeaway

As the above examples demonstrate, the planning framework in the Northern Territory is vastly different to the planning frameworks that apply in other states and territories and the Northern Territory Planning Scheme is not the only instrument that must be considered when planning development in the Northern Territory.