44Determination of conditions of exploration licences

#### 44 Determination of conditions of exploration licences (1) This section applies to a person (in this section called the applicant), in relation to an area of Aboriginal land, if: (a) a Land Council is taken to have consented to the grant of an exploration licence in respect of the land under subsection 42(7) (arbitration of terms and conditions by agreement); or (b) section 43 applies to the applicant, but the applicant and the Land Council have failed to agree upon the terms and conditions of the grant of the licence within the period referred to in subsection 43(1). (2) If paragraph (1)(a) applies, the applicant and the relevant Land Council may refer the terms and conditions of the grant of the licence to be determined by arbitration in accordance with the Commercial Arbitration (National Uniform Legislation) Act 2011 (NT). (3) A reference to an arbitrator must be made within 30 days, or such other period as is prescribed, after this section applies to the applicant. (4) If paragraph (1)(b) applies, the applicant or the Land Council, or both, may, in writing, request the Minister to refer the terms and conditions to a person appointed by the Minister as a Mining Commissioner for determination by conciliation or, failing that, by arbitration. (5) Where a request is made to the Minister under subsection (4), the Minister must, as soon as practicable, appoint a person under section 48F as a Mining Commissioner and that person must thereupon try to determine the terms and conditions by conciliation. (6) If the Mining Commissioner becomes of the opinion that there is no reasonable prospect of determining the terms and conditions by conciliation, he or she must notify both parties, in writing, of that opinion and, unless either party objects, must proceed to determine by arbitration the terms and conditions that should, in his or her opinion, be acceptable to both parties. (7) If either party objects under subsection (6), the Minister must, as soon as practicable, appoint another person under section 48F as a Mining Commissioner and that person must thereupon determine by arbitration the terms and conditions that should, in his or her opinion, be acceptable to both parties. (8) In determining the terms and conditions, the Mining Commissioner must take into account: (a) the effect that the entry on to the relevant land and the carrying out of exploration operations on the land would have on: (i) the preservation and protection of the lifestyle, culture and traditions of the traditional owners of the land; (ii) the proposals and wishes of those owners about its management, use and control; (iii) the development of the social, cultural and economic structures of those owners; and (iv) the freedom of access of those owners and their freedom to carry out, in accordance with tradition, rites, ceremonies and other activities on the land; (b) the applicant’s capacity, in carrying out the proposed exploration operations, to minimise any disturbance to those owners and the land; (c) the best practicable industry practices for minimising the impact of proposed exploration works upon the land and upon Aboriginals living on that land; (d) the nature and location of the exploration works proposed to be carried out; and (e) usual industry technology for carrying out exploration works of the kind proposed. (9) Where the applicant is willing to enter into an agreement with the Land Council setting out the terms and conditions determined in accordance with this section, the Land Council must enter into that agreement. (10) Where the Minister is satisfied that the Land Council has refused, or is unwilling, to enter into an agreement in the circumstances referred to in subsection (9), the Minister must, in the name of, and on behalf of, the Land Council, enter into such an agreement. (11) Nothing in this Part is taken to imply that the applicant must enter into an agreement with the Land Council to give effect to any terms and conditions determined by the Mining Commissioner under this section, but if the applicant does not enter into the agreement within 90 days after the determination or such longer period as the Minister may determine on application, within that period of 90 days, by either party, the consent of the Northern Territory Mining Minister under subsection 41(1) is taken to be withdrawn.