North East Gas Interconnector Pipeline (Special Provisions) Act 2015

The Act defines several key concepts that are central to its operation. Pipeline is defined as the North East Gas Interconnector Pipeline, being the pipeline or proposed pipeline to connect the Northern Territory gas pipeline network to the Eastern States gas pipeline network, as more fully described by regulation, and includes all associated infrastructure and equipment. A note clarifies that in this definition the word ‘pipeline’ has the same meaning as in the Energy Pipelines Act 1981. This ties the Act to the existing regulatory framework for energy pipelines, meaning the pipeline must also comply with that Act except where modified by this special Act. Pipeline licensee means the licensee for the Pipeline under the Energy Pipelines Act 1981. So the Act operates on whichever entity holds the licence from time to time. Project means the project for constructing and operating the Pipeline. Project participant is a broader concept: a person responsible from time to time for the project or any part or aspect of the project, and includes a subsidiary of a project participant that participates in the project, or a contractor or other person acting on behalf of a project participant. This wide definition captures multiple entities (designers, constructors, operators, subcontractors) and ensures they all can benefit from the Act’s provisions such as the sacred site certificate portability and the priority application duty, but also potentially subject them to duties. Authority Certificate and custodian are defined by reference to the Northern Territory Aboriginal Sacred Sites Act 1989. An Authority Certificate is a certificate issued under that Act that authorises work on or use of land near a sacred site. Lands Minister is the Minister responsible for administering the Pastoral Land Act 1992. Pastoral land and pastoral lease have the meanings given in section 3(1) of the Pastoral Land Act 1992. Road is defined by reference to section 5(1) of the Control of Roads Act 1953, which typically includes public roads and streets. Transport Minister means the Minister responsible for administering the Control of Roads Act 1953 (except Part IV). Water Minister means the Minister responsible for administering the Water Act 1992. Waterway has the meaning given in section 4(1) of the Water Act 1992. The Act also uses the term easement in gross, which under section 10(2) is taken to be an easement granted under the Law of Property Act 2000, meaning it has the same legal characteristics (e.g., it can exist without a dominant tenement and is held by a person rather than annexed to land). These definitions are narrow and project-specific, limiting the Act’s application to the named pipeline and its participants.

The Act directly affects a range of public and private actors. The primary beneficiary is the pipeline licensee under the Energy Pipelines Act 1981, and any project participant (including subsidiaries, contractors and others acting on behalf of a participant). These entities gain rights to use roads and waterways, to have applications prioritised, to rely on sacred site certificates obtained by any participant, and to create easements over pastoral land. The Territory’s Ministers are affected: the Transport Minister must decide whether to approve pipeline construction in roads (section 6) and may impose conditions; the Water Minister must approve waterway crossings (section 7) and may impose conditions; the Lands Minister must consent to any easement in gross over pastoral land (section 10). These Ministers are also subject to the priority duty in section 5 when considering applications from pipeline participants. Agencies, officers of Agencies, statutory corporations, and local government councils are all affected by the duty to give priority to pipeline-related applications. This means other applicants for permits, approvals or licences from these bodies may be indirectly affected if their applications are deprioritised. Pastoral lessees are affected because an easement in gross over their pastoral land may be created by agreement with the pipeline licensee, but only with the lessee’s consent and with the sanction of the Lands Minister. The Act does not provide a mechanism to compel a lessee to agree, so the lessee’s property rights are formally preserved, but the lessee may face pressure to negotiate given the project’s significance. Custodians of sacred sites are affected because an Authority Certificate obtained by one project participant operates in favour of other project participants; those other participants become bound by the certificate’s conditions and any agreement reached between the applicant custodian and the custodians. This reduces the number of separate negotiations that each participant would otherwise need to conduct, but it also means custodians may be dealing with multiple parties who are not the original applicant. The Supreme Court is affected because it has jurisdiction under section 8(3) to grant injunctions and award damages against the pipeline licensee for non-compliance with conditions imposed under Part 3 (roads and waterways). Any person with a proper interest (which is not defined) may apply for such relief. This broad standing potentially includes environmental groups, neighbouring landowners, or local governments, creating a private enforcement mechanism. Finally, the Territory itself is bound by the Act (section 3) and may also take enforcement action under section 8(2) and recover its costs. The Act does not affect the general public at large except insofar as the pipeline may affect road access, waterways or pastoral land use.

The Act creates several specific duties and rights. Duty to give priority (section 5): Each Minister, Agency, officer of an Agency, statutory corporation, and local government council must give priority to considering an application received from the pipeline licensee or a project participant that is related to the construction or operation of the Pipeline. This duty does not create a right to have the application granted; it only imposes a procedural priority in the consideration process. The duty is unqualified: no exceptions are stated for emergencies, other urgent applications, or resource constraints. Rights to construct in roads and across waterways (sections 6 and 7): The pipeline licensee has a right to construct and operate the Pipeline in, under or across a road, but only with the written approval of the Transport Minister, who may impose conditions. Similarly, the licensee may construct and operate across a waterway if Commonwealth requirements are satisfied and if the Water Minister gives written approval, subject to conditions. The Water Minister’s conditions must include (unless the instrument provides otherwise) conditions that a project participant must not prevent, restrict or interfere with passage of vessels, divert or use water, or obstruct flow of water. These are protective conditions for public rights. The Water Minister may also impose other conditions. Right to use Authority Certificate across participants (section 9): An Authority Certificate obtained on the application of one project participant operates in favour of any other project participant who carries out work or uses land as contemplated in the certificate. That other participant is bound by the certificate’s conditions and, if an agreement was reached between the custodians and the applicant, the terms and conditions of that agreement. This right reduces transaction costs for later participants but carries the duty to comply with conditions they did not negotiate. Right to create easement in gross over pastoral land (section 10): The pipeline licensee or a nominated project participant may create an easement in gross over pastoral land by agreement with the pastoral lessee, but only with the consent of the Lands Minister. The easement is taken to be an easement granted under the Law of Property Act 2000, giving it legal force and characteristics. Variance or extinguishment requires agreement between the original parties (or their successors). Duty to comply with conditions (section 8): The pipeline licensee must ensure compliance with conditions under Part 3. The Territory may act to ensure compliance and recover costs from the licensee. The Supreme Court may grant an injunction (including mandatory injunction) or award damages against the licensee for non-compliance, on application by the Minister or any other person with a proper interest. Rights of enforcement by third parties: The broad standing under section 8(3) creates a right for any person with a proper interest to seek court orders against the licensee. This is a significant right for those who may be affected by pipeline construction works. Exemption from Planning Act (section 11): The creation of an interest in land for pipeline purposes does not constitute a subdivision under the Planning Act 1999. This right removes one potential hurdle from planning law, but other planning approvals may still apply.

The Act does not itself create specific criminal offences with stated penalties, but it incorporates general enforcement mechanisms and the Criminal Code. Section 4 applies Part IIAA of the Criminal Code to any offence against the Act. Part IIAA of the Criminal Code (as applied in the Northern Territory) sets out general principles of criminal responsibility, defences and burden of proof. Any offence created by regulation under section 12 would be subject to these principles. The primary enforcement mechanism for non-compliance with conditions under Part 3 (roads and waterways) is found in section 8. Subsection 8(2) provides that the Territory may take action to ensure compliance, or to remedy non-compliance, with the licensee’s duty to comply with conditions. The Territory may then recover the costs of doing so from the pipeline licensee. This is a cost-recovery right, not a fine; it ensures that the Territory does not bear the cost of enforcing compliance. Subsection 8(3) gives the Supreme Court power to grant an injunction (including a mandatory injunction) to enforce compliance, or to award damages against the pipeline licensee for non-compliance with this section. The application may be made by the Minister or by any other person with a proper interest. The term ‘proper interest’ is not defined in the Act, leaving it to the Court to determine. This potentially allows a wide range of third parties (landowners, environmental groups, local councils) to seek enforcement. There is no stated cap on damages; they would be assessed according to ordinary principles. The Act does not provide a limitation period for such actions, so general law limitation periods would apply. For the sacred site certificate provisions (section 9), a project participant who fails to comply with the conditions of the certificate or the terms of an agreement with custodians may be in breach of that section, but the Act does not specify a penalty. Such breach could potentially give rise to a civil action by the custodians or by the Territory, or could be an offence if the certificate itself is issued under the Northern Territory Aboriginal Sacred Sites Act 1989, which contains its own penalties. Similarly, non-compliance with the duty to give priority (section 5) is not directly penalised; it appears to be a duty enforceable by public law remedies such as mandamus or judicial review, but the Act does not specify consequences. The power to make regulations (section 12) could create offences for breach of regulations, with penalties to be set in those regulations. As no regulations are provided in the source, the content of any penalty is unknown.

The Act operates as a special statute that modifies the application of several general Northern Territory laws in relation to the North East Gas Interconnector Pipeline. It does not repeal or amend any other Act; instead, it creates exceptions and specific permissions that override or supplement the general law for the project. The key interactions are as follows. Energy Pipelines Act 1981: The definition of Pipeline in section 2 relies on the meaning of ‘pipeline’ under the Energy Pipelines Act 1981, and the pipeline licensee is defined as the licensee under that Act. This means the pipeline must still be licensed and comply with that Act’s safety and other requirements, except to the extent that this Act provides special provisions. The Act does not excuse compliance with the Energy Pipelines Act. Northern Territory Aboriginal Sacred Sites Act 1989: Section 9 of this Act modifies the operation of the sacred sites regime by allowing an Authority Certificate to be used by multiple project participants. It also makes a participant bound by any agreement reached between the applicant and custodians, even if the participant was not a party to that agreement. This creates a form of privity by statute. Pastoral Land Act 1992: The definitions of pastoral land and pastoral lease are taken from that Act, and the Lands Minister (responsible for administering that Act) must consent to any easement under section 10. The pastoral lessee’s rights are preserved because the easement requires the lessee’s agreement; there is no compulsory acquisition power. Control of Roads Act 1953: The definition of ‘road’ is taken from that Act, and the Transport Minister (who administers that Act except Part IV) is the approval authority for pipeline construction in roads. Water Act 1992: The definition of ‘waterway’ is taken from that Act, and the Water Minister is the approval authority. Conditions relating to water flow and navigation are drawn from typical water law protections. Planning Act 1999: Section 11 provides a specific carve-out: the creation of an interest in land for pipeline purposes does not constitute a subdivision under the Planning Act. This means the developer does not need subdivision approval for creating easements, leases or other interests solely for the pipeline. However, other planning approvals (e.g., development consent for construction of the pipeline itself) are not expressly exempted. Law of Property Act 2000: Section 10(2) provides that an easement in gross created under this Act is taken to be an easement granted under the Law of Property Act 2000, incorporating the rules of that Act regarding creation, registration and extinguishment of easements. Criminal Code: Section 4 applies Part IIAA of the Criminal Code to offences under this Act, ensuring standard principles of criminal responsibility apply. Interpretation Act 1978: The note to section 2 reminds readers that the Interpretation Act contains general definitions and interpretive provisions that may apply. Commonwealth law: Section 7(1)(a) requires that any requirements under a law of the Commonwealth that must be satisfied for a waterway crossing have been satisfied before the pipeline may be constructed or operated across the waterway. This includes, for example, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) if the waterway is a matter of national environmental significance. The Act does not override Commonwealth laws. Overall, the Act creates a layered regime: the pipeline must comply with all other applicable laws except where this Act expressly provides otherwise.

The North East Gas Interconnector Pipeline (Special Provisions) Act 2015 was enacted as Act No. 34 of 2015. It received assent on 10 December 2015 and commenced on the same date. The source document is the reprint as in force at 10 December 2015. According to the endnotes, the only amendments made to the Act are of a formal nature by the Interpretation Legislation Amendment Act 2018 (Act No. 22, 2018). That amending Act made general formal amendments to sections 2, 10 and 11. The endnotes state that general amendments of a formal nature are made by that Act to those sections, but the specific changes are not detailed in the source. Such formal amendments typically update references to other legislation, correct numbering, or adjust definitions due to changes in interpretation law. No substantive policy amendments have been made to the Act since its commencement. The Act has no provisions for sunset or repeal, meaning it remains in force indefinitely unless repealed or amended by a later Act. Because the Act is tied to a specific pipeline project, it is likely to remain in force as long as the pipeline exists, but no explicit expiration mechanism is provided in the source text. The regulation-making power in section 12 allows the Administrator to make regulations, which could amend or extend the detailed description of the Pipeline or other matters, but no regulations are reproduced in the source. The amendment history is minimal, reflecting the Act’s narrow and stable purpose: to facilitate a single infrastructure project without ongoing legislative change.

The source text of the Act does not contain any references to litigation, case law, or judicial interpretation. No court decisions are noted in the endnotes or in the body of the Act. The Act is a short, project-specific statute that has been in force since December 2015. Given its narrow application to one pipeline, and its facilitative (rather than penal) nature, there may have been no reported disputes that reached the courts. However, the absence of litigation history in the source does not confirm that no legal challenges have occurred; it simply means the source does not record any. The Act’s provisions on priority of applications (section 5) and the broad standing for injunctions (section 8(3)) could give rise to disputes. For example, third parties affected by road works or waterway crossings could seek injunctions against the pipeline licensee if conditions are breached. Alternatively, other applicants for permits might argue that the priority duty was not properly applied. The easement in gross provisions (section 10) require agreement with pastoral lessees, and disputes over consent or terms could end up in court, but the Act does not provide a compulsory mechanism if agreement is not reached. The sacred site portability provision (section 9) could also generate litigation if custodians argue that a participant is not complying with conditions or the agreement, or if a participant claims not to be bound. However, since the source provides no cases, this analysis is speculative. A legal practitioner would need to conduct a separate search of Northern Territory case law to determine if any proceedings under this Act have been reported. For the purposes of this deep dive, grounded solely in the source, we can state that the Act itself does not reference any litigation and that no judicial consideration is recorded in the text. This is not unusual for a project-specific Act that may have been implemented without court challenge.

Several aspects of the Act may catch practitioners off guard. First, the priority duty in section 5 is broadly worded: “must give priority to considering an application”. It does not define what ‘priority’ means in practice. A decision-maker might process a pipeline application ahead of all others, but the duty does not require that other applications be ignored or that the pipeline application be processed in a fixed time. This could create tension with statutory duties to consider other applications within a reasonable time. If a council prioritises a pipeline application over a housing development application, the housing developer may have grounds for judicial review. Conversely, if the decision-maker does not prioritise sufficiently, the pipeline participant may seek mandamus. The duty applies to ‘any’ application ‘related to’ the construction or operation of the Pipeline. The phrase ‘related to’ is broad; it could include an application for a works permit, a road opening permit, or even a liquor licence for a construction camp. The scope of ‘related to’ is not limited. Second, the definition of ‘project participant’ includes ‘a contractor or other person acting on behalf a project participant’. This is potentially circular and could include numerous subcontractors, agents, consultants and even suppliers if they are ‘acting on behalf’ of a primary participant. Each such person gains the benefit of the priority duty and the sacred site certificate portability, but also becomes bound by conditions under section 9(2). A subcontractor may not be aware of the conditions of an Authority Certificate or the terms of a custodial agreement. Due diligence is essential. Third, the easement in gross provision (section 10) requires both agreement with the pastoral lessee and the consent of the Lands Minister. But what if agreement cannot be reached? The Act provides no compulsory acquisition power. The pipeline licensee may have to rely on other mechanisms under the Pastoral Land Act or the Energy Pipelines Act, or may need to negotiate compensatory arrangements. The absence of a compulsory element may be a significant gap if a lessee holds out. Fourth, the relationship with the Planning Act 1999 is limited: section 11 only exempts the creation of an interest in land (e.g., an easement or lease) from being treated as a subdivision. Other planning approvals under the Planning Act, such as development consent for the pipeline itself, may still be required. The Act does not grant a blanket exemption from all planning controls. Fifth, the enforcement provision in section 8(3) allows ‘any other person with a proper interest’ to seek an injunction or damages from the Supreme Court. ‘Proper interest’ is not defined. This could be interpreted broadly to include environmental groups, local landowners, or even competitors. The pipeline licensee faces potential litigation from multiple quarters if conditions are breached. There is no requirement for the plaintiff to show irreparable harm or to give an undertaking as to damages. Sixth, the sacred site certificate portability (section 9) binds a project participant to the terms of an agreement reached between the applicant and the custodians, even if the participant had no role in negotiating that agreement. This means a later participant may inherit onerous conditions that it did not consent to, with no opt-out. The Act does not provide a mechanism for the participant to challenge or renegotiate those terms. Seventh, the regulations power (section 12) could be used to further define the Pipeline, or to impose additional requirements, without amendment to the primary Act. Practitioners must track any regulations made. Eighth, the Act binds the Crown (section 3), so government entities are not immune from its provisions, but they are also subject to the priority duty. This could lead to conflicts where a Minister must both comply with other statutory duties and give priority to pipeline applications.

Compliance with the Act requires action by multiple parties, but the primary compliance burden falls on the pipeline licensee. For the pipeline licensee, the first step is to ensure that any application made to a Minister, Agency, officer, statutory corporation or local government council for any matter related to the pipeline’s construction or operation clearly identifies itself as being from the licensee or a project participant, and if possible, references section 5 to trigger the priority duty. The licensee should keep a register of all such applications and monitor whether priority is in fact given. Where it is not, the licensee may need to remind the decision-maker of the statutory duty or seek judicial review. Second, before constructing the pipeline in, under or across a road, the licensee must obtain the written approval of the Transport Minister under section 6. The licensee should submit a detailed proposal, including safety devices and reconstruction plans, because the Minister may impose conditions on these matters. The licensee must then ensure that all conditions are strictly complied with. A compliance program with clear responsibilities, regular inspections and documentation is advisable. Third, for any waterway crossing, the licensee must ensure that all relevant Commonwealth law requirements are satisfied (e.g., EPBC Act approvals, if applicable) before seeking approval from the Water Minister under section 7. The approval will likely include conditions restricting interference with navigation, water diversion and flow obstruction. The licensee must ensure that project participants (including contractors) are aware of and comply with these conditions. The licensee should maintain a compliance schedule and audit trail. Fourth, for sacred sites, the licensee (or a project participant) should obtain an Authority Certificate under the Northern Territory Aboriginal Sacred Sites Act 1989. If one participant obtains it, the licensee must ensure that all other participants who will rely on that certificate are informed of the certificate’s conditions and any associated custodial agreement. Those participants should explicitly acknowledge in writing that they are bound by those conditions and agreement, as required by section 9(2). Fifth, for pastoral land, if an easement in gross is needed, the licensee must negotiate with the pastoral lessee and reach a written agreement. That agreement must then be submitted to the Lands Minister for consent. Without the Minister’s consent, the easement is invalid (section 10(1)(b)). The licensee should also ensure the easement is documented and registered if required under the Law of Property Act 2000. Sixth, the licensee must ensure that the creation of any interest in land (such as an easement or licence) for pipeline purposes does not inadvertently trigger subdivision requirements under the Planning Act 1999. While section 11 exempts this from being a subdivision, it is prudent to obtain a written confirmation from the relevant planning authority. Seventh, the licensee must establish a system to ensure compliance with all conditions imposed under Part 3, as required by section 8(1). The system should include regular reporting, site inspections and a mechanism to remedy any non-compliance promptly, because the Territory may step in and recover costs, and any person with a proper interest may seek an injunction or damages. Eighth, the licensee and project participants should maintain comprehensive records of all approvals, conditions, certificates, agreements and compliance activities. These records will be essential in defending any enforcement action or regulatory challenge. Local government councils and agencies affected by the priority duty should develop internal protocols to identify pipeline-related applications and prioritise their processing, while documenting the steps taken to comply. Ministers should consult with legal advisors before imposing conditions under sections 6 and 7 to ensure they are within power and reasonable. Pastoral lessees should obtain independent legal and valuation advice before agreeing to an easement, as the agreement will bind successors. Custodians of sacred sites should ensure that any agreement reached with the applicant project participant clearly states that it is intended to bind other participants.