The Native Title (South Australia) Act validates many past acts attributable to the State of South Australia (SA). Unlike other jurisdictions, some previous exclusive possession acts are excluded, write Partner Tony Wassaf and lawyer Emily Gerrard. 1
Last updated November 2005
State native title legislation
- Native Title (South Australia) Act 1994 (SA)
- Native Title (South Australia) Regulations 2001 (SA)
- Land Acquisition (Native Title) Amendment Act 2001 (SA)
- Environment, Resources and Development Court Act 1993 (SA)
Land rights legislation
- Anagu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA)
- Maralinga Tjaruta Land Rights Act 1984 (SA)
- Aboriginal Lands Trust Act 1966 (SA)
- Aboriginal Lands Parliamentary Standing Committee Act 2003 (SA)
Mining and petroleum legislation
Heritage legislation
- Aboriginal Heritage Act 1988 (SA)
- Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
- National Parks and Wildlife Act 1972 (SA)
State native title legislation
Native Title (South Australia) Act 1994 (SA)
This Act:
- validates past and intermediate period acts in accordance with the terms and requirements of the Commonwealth Native Title Act 1993 (the NTA);
- confirms the past extinguishment of native title by certain past acts, including previous exclusive possession acts, in accordance with the NTA ; and
- confirms SA's existing ownership of any natural resources; SA's existing rights to use, control and regulate the flow of water; existing fishing access rights; and existing public access to waterways and public places.
The SA Government is liable for any compensation payable as a result of validation of past or intermediate period acts, and the past extinguishment of native title.
However, unlike other jurisdictions, there are certain excepted previous exclusive possession acts which do not operate to extinguish native title under the statute. These acts are:
- a previous exclusive possession act subject to a reservation or condition expressly in favour of Aboriginal people;
- any leasehold interest acquired by the Indigenous Land Corporation; and
- Scheduled interests that:
- were no longer in existence as at 23 December 1996;
- are grazing, cropping or garden leases granted under section 35 of the National Parks and Wildlife Act 1972 (SA) (see our commentary); or
- are certain miscellaneous leases in relation to grazing and cultivation.
These types of interest are excluded from the validation provisions of the Act even if they also fall within another category of previous exclusive possession acts.
SA alternate 'right to negotiate' regime for mining
The NTA allows for States and Territories to establish their own alternate regimes in certain circumstances to take the place of the "right to negotiate" procedures under the NTA. There are criteria that an alternate regime must comply with, and any alternate regime requires the approval of both Federal Houses of Parliament.
The South Australian Parliament has enacted an alternate State 'right to negotiate' regime for the mining industry.
The regime is set out in Part 9B of the Mining Act 1971 (SA) and came into operation on 17 June 1996. Part 9B provides that:
- an exploration authority (miner's right, mineral claim, exploration licence or retention lease confined to exploratory operations) may be granted over native title land but confers no right to explore on that land unless the exploration operations do not affect native title or an agreement or determination is made under Part 9B authorising those operations; and
- a production tenement (mining lease or retention lease not confined to exploratory operations) may not be granted over native title land unless mining operations under it are authorised by an agreement or determination under Part 9B.
Determinations under Part 9B are made by the Environment Resources and Development Court. In other respects the Part 9B procedure is equivalent to the right to negotiate procedure under the NTA.
Part 9B does not apply to the petroleum industry which remains subject to the right to negotiate procedure under the NTA.
Native Title (South Australia) Regulations 2001
The Native Title Regulations (SA) 2001 exist pursuant to the Native Title (South Australia) Act 1994. The regulations came into operation on 27 August 2001 and include:
- information to be included in the State Native Title Register;
- the procedure for amendment of applications for native title;
- the requirement to give notice of an application for, and hearing of, certain native title questions;
- principals of eligibility for, and functions of, registered representatives of native title holders;
- the requirement for, and evidence of, consultation and consent before a registered representative of native title holders can deal, or act in a way that will affect, native title; and
- forms prescribed under the Native Title Act (SA) 1994.
Land Acquisition (Native Title) Amendment Act 2001 (SA)
The Land Acquisition (Native Title) Amendment Act 2001 (the Act) was assented to on 1 November 2001 and amends the Land Acquisition Act 1969. The amendments bring the Act in line with the Native Title Act 1993 (Cth) in respect of compulsory acquisitions of native title interests. Section 10 of the Act details the process an authority must follow if it proposes to acquire native title in land.
Environment, Resources and Development Court Act 1993 (SA)
This Act establishes the Environmental, Resources and Development Court (ERD Court). Section 5 of the NT (SA) Act confers jurisdiction on the Supreme Court and the ERD Court to determine native title questions.
If it is clear before proceedings are commenced that they involve a native title question, the proceedings should be commenced in the ERD Court.
Section 6 of the NT (SA) Act provides that the Supreme Court may and other Courts of the State must, refer proceedings involving a native title question to the ERD Court.
Land rights legislation
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA)
This Act provides for the vesting of title to certain lands in north-western South Australia, in the people of the Anangu Pitjantjatjara Yankunytjatjara.
Prior to the commencement of amending legislation in October 2005, the Act was known as the Pitjantjatjara Land Rights Act 1981 (SA). The name of the Act was changed to acknowledge Anangu ownership of the relevant land. The main objects of the amending legislation were to provide a legislative framework for greater accountability and transparency in the governance of the relevant lands by varying the composition and certain processes of the body corporate's Executive Board.
Effects of the legislation
Anangu Pitjantjatjara Yankunytjatjara is the body corporate that holds the Pitjantjatjara lands. It is responsible for protecting the interests of the traditional owners in relation to the management and use of the lands. 'Traditional owner' in relation to lands means an Aboriginal person who has, in accordance with Aboriginal tradition, social, economic and spiritual affiliations with, and responsibilities for, the lands or any part of them.
The Act has detailed provisions restricting entry to the lands for the purpose of conducting mining operations. It also deals with the relationship with the Mining and Petroleum Acts and provides for strict controls on the issuing and negotiation of mining and petroleum tenements.
The operation of the Act may be reviewed by the Aboriginal Lands Parliamentary Standing Committee , established in 2003.
Breaches and penalties
Unauthorised minerals and petroleum exploration, mining or production or entry to the lands for this purpose is an offence subject to a fine of $10,000 plus $1,000 fine for each day the offence continues. A person who enters into an unauthorised agreement with the traditional owners is liable to a $2,000 fine. The directors of a company will also be guilty of the same offence unless they can show that the exercise of reasonable diligence would not have prevented the offence.
The Courts may order a person convicted of an offence against the Act to pay compensation to Anangu Pitjantjatjara for any damage caused by the offence.
Maralinga Tjarutja Land Rights Act 1984 (SA)
This Act is similar to the Anagu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and provides for the vesting of title to certain lands known as the Maralinga lands in the traditional owners of the lands. The Maralinga lands are in the central-western part of South Australia
Maralinga Tjarutja is the body corporate that holds the Maralinga lands. Its functions are virtually the same as those described above for the Pitjantjatjara. However, under this Act special provision is made for the compilation of a register of sacred sites on the Maralinga lands. As with the Pitjantjatjara Act, there are substantial restrictions on entry for minerals and petroleum exploration, mining and production purposes. The Act also provides for the notification of sacred sites to prospective tenement holders and for the interaction of the Mining and Petroleum Acts with this legislation.
As with the Anagu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and the Aboriginal Lands Trust Act, the operation of this Act may be reviewed by the Aboriginal Lands Parliamentary Standing Committee.
The penalties for illegal entry for mining and petroleum exploration, mining and production purposes are the same as described above. The Court also has the power to order compensation in certain cases, as discussed above in relation to the Pitjantjatjara.
Aboriginal Lands Trust Act 1966 (SA)
The Aboriginal Lands Trust Act 1966 (the Act) establishes the Aboriginal Lands Trust to receive, accept, hold, acquire by means of agreement, exchange, or possess, and to dispose of property of every kind and be a party to any legal proceedings.
The vesting of land in the Trust does not extinguish or affect native title in the land. No dealing by the Trust with land vested in it extinguishes or affects native title in the land. However, the Trust may, by agreement with the Minister and the holders of native title in land, deal with the land so as to extinguish or affect native title in the land.
Aboriginal Lands Parliamentary Standing Committee Act 2003 (SA)
The Aboriginal Lands Parliamentary Standing Committee Act 2003 (the Act) has been in operation since September 2003. The Act established the Aboriginal Lands Parliamentary Standing Committee (the Committee). The functions of the Committee include reviewing the operation of the Pitjantjatjara Land Rights Act 1981 (SA), the Maralinga Tjarutja Land Rights Act 1984 (SA) and the Aboriginal Lands Trust Act 1966 (SA). The Act also empowers the Committee to inquire into matters affecting the interests of traditional owners and the manner in which lands are being managed, used and controlled under these pieces of legislation.
The Act provides for the membership, privileges and powers of the Committee, as well as its functions, which include reviewing the operation of Acts relating to Aboriginal lands, along with a range of matters affecting Aboriginal people.
Mining and petroleum legislation
Mining Act 1971 (SA)
The Mining Act governs the exploration for and production of minerals.
'Mining or mining operations' means all prospecting, exploring, mining or quarrying of minerals and extractive minerals.
Tenements that may be obtained include a mineral claim; exploration licence; mining lease; extractive mineral lease; retention lease; and miscellaneous purposes licence. Generally, the area of land in respect of which an exploration licence is granted must not exceed 1,000 km2, unless circumstances can be demonstrated to the Minister to justify granting a licence over a greater area.
Effects of the legislation
The Minister may prescribe particular terms and conditions for each type of licence or lease and is required to give proper consideration to the protection of any Aboriginal sites or objects that may be affected by exploration or mining. These considerations will be incorporated in the tenement conditions.
The Act provides a number of ways that a mining operator may enter land to carry out mining operations, including through authorisation under a registered Indigenous Land Use Agreement (ILUA). If the mining operator is authorised to enter the land under a registered ILUA then the prescribed notice of entry requirements under the Act are waived.
Part 9B of the Act deals with native title land and includes an alternate State 'right to negotiate' procedure. Under this part the rights conferred by the exploration authority are qualified with respect to native title rights. The Act sets out conditions that must be fulfilled before mining operations can be carried out on native title land. These provisions are generally in line with future act provisions under the Native Title Act 1993 (Cth).
Breaches and penalties
If a condition of a licence or lease or a provision of the Act is breached, the Minister may suspend or cancel an exploration licence or a mining lease. The lessee may, within 28 days of the suspension or cancellation, appeal to the Environment, Resources and Development Court. The court may declare the suspension or cancellation void if satisfied there is no proper ground for the Minister to take such action.
There is no provision for enforcing company liability against directors and senior management.
Petroleum Act 2000 (SA)
The Petroleum Act governs the exploration for and recovery of petroleum and other regulated resources.
'Regulated activities' includes exploration for, and production of, petroleum or any other regulated resources and operations to establish the nature and extent of petroleum or other regulated resources, the commercial feasibility of production and appropriate production techniques.
Tenements that may be granted include a preliminary survey licence, a speculative survey licence, an exploration licence, a retention licence and a production licence.
Effect of the legislation
Under the Act, a licensee is precluded from undertaking any regulated activity unless a statement of environmental objectives is in force for the relevant activity. For purposes of a statement of environmental objectives, an environmental impact report is required to be prepared. An environmental impact report must take into account cultural, amenity and other values of Aboriginal and other Australians insofar as those values are relevant to the assessment.
Pursuant to the Act 'owners' of land are entitled to compensation for damage to the land and deprivation or impairment of use of the land. The definition of 'owner' includes native title holders.
Although South Australia has an alternate 'right to negotiate' regime in relation to exploration and production under the Mining Act 1971 (SA), the Native Title Act 1993 (Cth) right to negotiate procedures apply in relation to the petroleum industry.
Breaches and penalties
If a licensee fails to comply with the Act or a condition of its licence, the Minister may suspend or cancel the licence. Before suspending or cancelling a licence, the Minister must give the licensee a reasonable opportunity to remedy the default and to show cause why the proposed suspension or cancellation should not be implemented.
The Act also creates an offence for not complying with a condition of a licence (either a general condition or a discretionary condition imposed by the Minister). The maximum penalty for non compliance with a condition is a fine of up to $120,000. The Act also identifies records that must be kept by licensees and identifies incidents that need to be reported.
Heritage legislation
Aboriginal Heritage Act 1988 (SA)
This Act aims to protect and preserve Aboriginal heritage sites, objects and remains. It establishes the Aboriginal Heritage Committee to advise the responsible minister with respect to issues such as:
- entries in the central archives;
- measures that should be taken to preserve or protect Aboriginal sites, objects or remains; and
- Aboriginal heritage agreements.
An Aboriginal heritage agreement is an instrument established to protect or preserve Aboriginal sites, objects or remains. Agreements may provide for the management of land or restrict the use of land to which it applies. In addition, an agreement attaches to the land and is, to the extent specified in the agreement, binding on the occupier of the land to which it applies.
'Aboriginal object' is defined as an object of significance according to Aboriginal tradition or of significance to Aboriginal archaeology, anthropology or history.
'Aboriginal site' means an area of land of significance according to Aboriginal tradition or of significance to Aboriginal archaeology, anthropology or history.
Effects of the legislation
An owner or occupier of private land (which includes mining and petroleum tenements) who discovers an Aboriginal site, object or remains must notify the Minister of Aboriginal Affairs about the nature and location of the site.
A person must not interfere with, damage or disturb an Aboriginal site, damage an Aboriginal object or disturb, interfere with or remove an Aboriginal object or remains without Ministerial approval.
A land holder may also be directed to take protective action.
Breaches and penalties
The penalty for breaching these provisions is $50,000 for a company and $10,000 or six months imprisonment for a person. Employers are vicariously liable for offences committed by employees.
Where a company is guilty of an offence, all members of the governing body are also liable for the penalty applicable to a person, unless they prove they could not reasonably have prevented the offence.
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)
This Act gives the Commonwealth Minister for Aboriginal Affairs wide powers to protect significant Aboriginal areas or objects which may be under threat of injury or desecration. The protection is achieved by a ministerial declaration which can follow an application from an Aboriginal or Aboriginal group.
The declaration must sufficiently describe the area or object to enable it to be identified. It must contain measures to protect and preserve the area or object from injury or desecration. It is an offence to contravene a provision of a declaration.
The legislation is not intended to exclude or limit the operation of the law of a State that is capable of operating concurrently with the Act. Under the Act, the Minister cannot make a declaration without consulting the appropriate State Minister as to whether, under State law, the area or object is effectively protected from threat, injury or desecration. As soon as practicable after making the declaration, the Minister must take reasonable steps to notify people who are likely to be substantially affected by the declaration.
National Parks And Wildlife Act 1972 (SA)
This Act provides for the establishment and maintenance of national parks and the regulation of mining activities in those areas.
The Governor of South Australia may constitute Crown land as a national conservation or recreation park, or regional or game reserve. Some parks and reserves may be established for the purposes of preserving sites, objects and structures of historic or scientific interest. These sites, objects and structures could include sites, objects and structures which are of Aboriginal significance.
Minerals or petroleum exploration, mining or production cannot be carried out in a park or reserve (other than a regional reserve) unless the Governor proclaims that the right to do so may be acquired or exercised.
A person may be granted a mining tenement in a regional reserve subject to specific conditions. Those conditions may relate to the protection of Aboriginal heritage areas.
The government may enter into a co-management agreement for a national park or conservation park made up of Aboriginal-owned land or land with which Aboriginals have a traditional association. Representatives of relevant Aboriginal groups are appointed to co-management boards by the Governor by regulation. The object of such agreements is the preservation and protection of Aboriginal sites and the protection of natural resources and features within the parks.
Footnotes
- Allens Arthur Robinson acknowledges the assistance of George McKenzie of Finlaysons in preparing this document.
Native title: Mabo Commonwealth NT WA Qld NSW Victoria Tasmania ACT
