Part 9BNative title land

Part 9B—Native title land Division 1—Exploration 63F—Qualification of rights conferred by exploration authority (1) An exploration authority confers no right to carry out mining operations on native title land unless— (a) the mining operations do not affect native title (ie they are not wholly or partly inconsistent with the continued existence, enjoyment or exercise of rights deriving from native title1); or (b) a declaration is made under the law of the State or the Commonwealth to the effect that the land is not subject to native title;2 or (c) an indigenous land use agreement registered under the Native Title Act 1993 (Cwth) provides that statutory rights to negotiate are not intended to apply in relation to the mining operations.3 (2) However, a person who holds an exploration authority that would, if land were not native title land, authorise mining operations on the land may acquire the right to carry out mining operations on the land (that affect native title) from an agreement or determination authorising the operations under this Part. (3) An agreement or determination under this Part need not be related to a particular exploration authority. (4) However, a tenement holder's right to carry on mining operations that affect native title is contingent on the existence of an exploration authority that would, if the land were not native title land, authorise the tenement holder to carry out the mining operations on the land. 1 Cf. Native Title Act 1993 (Cwth), section 227. 2 A declaration to this effect may be made under Part 4 of the Native Title (South Australia) Act 1994 or the Native Title Act 1993 (Cwth). The effect of such a declaration is that the land ceases to be native title land. 3 Cf. Native Title Act (Cwth), section 24EB(1)(c). 63G—Exploration rights to be held in escrow in certain circumstances (1) If an exploration authority is granted in respect of native title land, and the holder of the authority has no right or no substantial right to explore for minerals on the land because of the absence of an agreement or determination authorising mining operations on the land, the exploration authority does nevertheless, while it remains in force, prevent the grant of registration of another exploration authority for exploring for minerals of the same class within the area to which the authority relates. (2) The Minister may revoke an exploration authority that is granted entirely or substantially in respect of native title land if it appears to the Minister that the holder of the authority is not proceeding with reasonable diligence to obtain the agreement or determination necessary to authorise the effective conduct of mining operations on the land to which the authority relates. Division 2—Production 63H—Limits on grant of production tenement A production tenement may not be granted or registered over native title land unless— (a) the mining operations to be carried out under the tenement are authorised by a pre-existing agreement or determination registered under this Part; or (ab) an indigenous land use agreement registered under the Native Title Act 1993 (Cwth) provides that statutory rights to negotiate are not intended to apply in relation to the mining operations to be carried out under the tenement;1 or (b) a declaration is made under the law of the State or the Commonwealth to the effect that the land is not subject to native title.2 1 Cf. Native Title Act (Cwth), section 24EB(1)(c). 2 A declaration to this effect may be made under Part 4 of the Native Title (South Australia) Act 1994 or the Native Title Act 1993 (Cwth). The effect of the declaration is that the land ceases to be native title land. 63I—Applications for production tenements (1) The Minister may agree with an applicant for a production tenement over native title land that the tenement will be granted or registered contingent on the registration of an agreement or determination under this Part. (2) The Minister may refuse an application for a production tenement over native title land if it appears to the Minister that the applicant is not proceeding with reasonable diligence to obtain the agreement or determination necessary to the grant or registration of the tenement to which the application relates (and if the application is refused, the applicant's claim lapses). Division 3—Application for declaration 63J—Application for declaration A person who seeks to carry out mining operations on native title land may apply to the ERD Court for a declaration that the land is not subject to native title.1 1 The application is to be made under the Native Title (South Australia) Act 1994. Division 4—Negotiating procedure 63K—Types of agreement authorising mining operations on native title land (1) An agreement authorising mining operations on native title land (a native title mining agreement) may— (a) authorise mining operations by a particular tenement holder; or (b) authorise mining operations of a specified class within a defined area by tenement holders of a specified class who comply with the terms of the agreement. If the authorisation relates to a particular tenement holder it is referred to as an individual authorisation. Such an authorisation is not necessarily limited to mining operations under a particular exploration authority or production tenement but may extend also to future exploration authorities or production tenements. If the authorisation does extend to future exploration authorities or production tenements it is referred to as a conjunctive authorisation. An authorisation that extends to a specified class of tenement holders is referred to as an umbrella authorisation. (2) If a native title mining agreement is negotiated between a tenement holder who does not hold, and is not an applicant for, a production tenement for the relevant land, and native title parties who are claimants to (rather than registered holders of) native title land, the agreement cannot extend to mining operations conducted on the land under a future production tenement. (3) An umbrella authorisation can only relate to prospecting or mining for precious stones over an area of 200 square kilometres or less. (4) If the native title parties with whom a native title mining agreement conferring an umbrella authorisation is negotiated are claimants to (rather than registered holders of) native title land, the term of the agreement cannot exceed 10 years. (5) The existence of an umbrella authorisation does not preclude a native title mining agreement between a tenement holder and the relevant native title parties relating to the same land, and if an individual agreement is negotiated, the agreement regulates mining operations by a tenement holder who is bound by the agreement to the exclusion of the umbrella authorisation. 63L—Negotiation of agreements (1) A person (the proponent) who seeks a native title mining agreement may negotiate the agreement with the native title parties. The native title parties are the persons who are, at the end of the period of 4 months from when notice is given under section 63M, registered under the law of the State or the Commonwealth as holders of, or claimants to, native title in the land. A person who negotiates with the registered representative of those persons will be taken to have negotiated with the native title parties. Negotiations with other persons are not precluded but any agreement reached must be signed by the registered representative on behalf of the native title parties. (2) The proponent must be— (a) if an agreement conferring an individual authorisation1 is sought—the tenement holder who seeks the authorisation; (b) if an agreement conferring an umbrella authorisation1 is sought—the Minister or an association representing the interests of tenement holders approved by regulation for the purposes of this section. 63M—Notification of parties affected (1) The proponent initiates negotiations by giving notice under this section. (2) The notice must— (a) identify the land on which the proposed mining operations are to be carried out; and (b) describe the general nature of the proposed mining operations that are to be carried out on the land. (3) The notice must be given to— (a) the relevant native title parties; and (b) the ERD Court; and (c) the Minister. (4) Notice is given to the relevant native title parties as follows: (a) if a native title declaration establishes who are the holders of native title in the land—the notice must be given to the registered representative of the native title holders and the relevant representative Aboriginal body for the land; (b) if there is no native title declaration establishing who are the holders of native title in the land—the notice must be given to all who hold or may hold native title in the land in accordance with the method prescribed by Part 5 of the Native Title (South Australia) Act 1994. 63N—What happens when there are no registered native title parties with whom to negotiate (1) If, 4 months after the notice is given to all who hold or may hold native title in the land, there are no native title parties in relation to the land to which the notice relates, the proponent may apply without notice to any person to the ERD Court for a summary determination. (2) On an application under subsection (1), the ERD Court must make a determination authorising entry to the land for the purpose of carrying out mining operations on the land, and the conduct of mining operations on the land. (3) The determination may be made on conditions the Court considers appropriate and specifies in the determination. (4) The determination cannot confer a conjunctive or umbrella authorisation.1 63O—Expedited procedure where impact of operations is minimal (1) This section applies to mining operations that— (a) will not directly interfere with the community life of the holders of native title in the land on which the operations are to be carried out; and (b) will not interfere with areas or sites of particular significance, in accordance with their traditions, to the holders of native title in the land on which the operations are to be carried out; and (c) will not involve major disturbance to the land on which the operations are to be carried out. (2) If the proponent states in the notice given under this Division that the mining operations to which the notice relates are operations to which this section applies and that the proponent proposes to rely on this section, the proponent may apply without notice to any person to the ERD Court for a summary determination authorising mining operations in accordance with the proposals made in the notice. (3) On an application under subsection (2), the ERD Court may make a summary determination authorising mining operations in accordance with the proposals contained in the notice. (4) However, if within 4 months after notice is given, a written objection to the proponent's reliance on this section is given by the Minister, or a person who holds, or claims to hold, native title in the land, the ERD Court must not make a summary determination under this section unless the Court is satisfied after giving the objectors an opportunity to be heard that the operations are in fact operations to which this section applies. (5) An objection under subsection (4) must be given to the proponent and a copy given to the ERD Court. 63P—Negotiating procedure (1) The proponent and native title parties must negotiate in good faith and accordingly explore the possibility of reaching an agreement. (2) However, the obligation to negotiate does not arise if the case is one where a summary determination may be made. (3) If any of the negotiating parties requests the ERD Court to do so, the Court must mediate among the parties to assist in obtaining their agreement. (4) The Minister may (personally or by representative) intervene in negotiations under this Division. 63Q—Agreement (1) An agreement negotiated under this Division may provide for payment to the native title parties based on profits or income derived from mining operations on the land or the quantity of minerals produced. (2) The basis of the payment may be fixed in the agreement or left to be decided by the ERD Court or some other nominated arbitrator. (3) An agreement must deal with— (a) notices to be given or other conditions to be met before the land is entered for the purposes of carrying out mining operations; and (b) principles governing the rehabilitation of the land on completion of the mining operations. (4) If agreement is reached between the proponent and the native title parties authorising mining operations on the native title land, the proponent must lodge a copy of the agreement with a mining registrar and the mining registrar will, subject to this section, register the agreement. (5) If the Minister is of the opinion that there is reason to believe that the agreement may not have been negotiated in good faith, the Minister may, within two months after the copy of the agreement is lodged for registration with the mining registrar, make an order prohibiting registration of the agreement. (6) A party to an agreement may appeal against an order under subsection (5) to the ERD Court and the Court may, on appeal— (a) confirm or revoke the Minister's order; and (b) if the Court considers it appropriate, make a determination authorising entry on the land to carry out mining operations, and the conduct of mining operations on the land, on conditions determined by the Court. 63R—Effect of registered agreement (1) A registered agreement negotiated under this Division is (subject to its terms) binding on, and enforceable by or against the original parties to the agreement and— (a) the holders from time to time of native title in the land to which the agreement relates; and (b) the holders from time to time of any exploration authority or production tenement under which mining operations to which the agreement relates are carried out. (2) If a native title declaration establishes that the native title parties with whom an agreement was negotiated are not the holders of native title in the land or are not the only holders of native title in the land, the agreement continues in operation (subject to its terms) until a fresh agreement is negotiated under this Part with the holders of native title in the land, or for 2 years after the date of the declaration (whichever is the lesser). (3) Either the holders of native title in the land or the tenement holder may initiate negotiations for a fresh agreement by giving notice to the other. (4) A registered agreement that authorises mining operations to be conducted under a future mineral tenement is contingent on the tenement being granted or registered. 63S—Application for determination (1) If agreement between the proponent and the native title parties is not reached within the relevant period, any party to the negotiations or the Minister may apply to the ERD Court for a determination. In this subsection, the relevant period is 6 months from when the negotiations were initiated. (2) On an application under this section, the ERD Court may determine— (a) that mining operations may not be conducted on the native title land; or (b) that mining operations may be conducted on the native title land subject to conditions determined by the Court. (3) If the ERD Court determines that mining operations may be conducted on native title land, the determination— (a) must deal with the notices to be given or other conditions to be met before the land is entered for the purposes of mining operations; but (b) cannot provide for payment to the native title parties based on profits or income derived from mining operations on the land or the quantity of minerals produced. (4) The ERD Court must make its determination on an application under this section within the relevant period unless there are special reasons why it cannot do so. In this subsection, the relevant period is 6 months from when the application is made. (5) The representative Aboriginal body for the area in which the land is situated is entitled to be heard in proceedings under this section. 63T—Criteria for making determination (1) In making its determination, the ERD Court must take into account the following: (a) the effect of the proposed mining operations on— (i) native title in the land; and (ii) the way of life, culture and traditions of any of the native title parties; and (iii) the development of the social, cultural and economic structures of any of those parties; and (iv) the freedom of access by any of those parties to the land concerned and their freedom to carry out rites, ceremonies or other activities of cultural significance on the land in accordance with their traditions; and (v) any area or site, on the land concerned, of particular significance to the native title parties in accordance with their traditions; and (vi) the natural environment of the land concerned; (b) any assessment of the effect of the proposed mining operations on the natural environment of the land concerned— (i) made by a court or tribunal; or (ii) made, or commissioned, by the Crown in any capacity or by a statutory authority; (c) the interests, proposals, opinions or wishes of the native title parties in relation to the management, use or control of the land concerned; (d) the economic or other significance of the proposed mining operations to Australia and to the State; (e) any public interest in the mining operations proceeding; (f) any other matter the ERD Court considers relevant. (2) This section does not affect the operation of another law of the State or the Commonwealth for the preservation or protection of areas or sites of particular significance to Aboriginal people. 63U—Limitation on powers of Court (1) The ERD Court cannot make a determination conferring a conjunctive or umbrella authorisation1 unless the native title parties2 are represented in the proceedings and agree to the authorisation. (2) A conjunctive authorisation1 conferred by determination cannot authorise mining operations under both an exploration authority and a production tenement unless the native title parties1 are the registered holders of (rather than claimants to) native title land.3 (3) An umbrella authorisation1 conferred by determination— (a) can only relate to prospecting or mining for precious stones over an area of 200 square kilometres or less; and (b) cannot authorise mining operations for a period exceeding 10 years unless the native title parties2 are registered holders of (rather than claimants to) native title land.4 1 See explanatory note to section 63K(1). 2 See explanatory note to section 63L(1). 3 Section 63K(2) is of similar effect in relation to native title mining agreements. 4 Section 63K(3) and (4) are of similar effect in relation to native title mining agreements. 63V—Effect of determination (1) A determination under this Division— (a) must be lodged with a mining registrar; and (b) must be registered two months after it was lodged for registration unless it has in the meantime been overruled by the Minister;1 and (c) takes effect on registration. (2) A determination registered under this Division has effect as if it were a contract between the proponent and the native title parties. (3) A registered determination is (subject to its terms) binding on, and enforceable by or against the original parties to the proceedings in which the determination was made and— (a) the holders from time to time of native title in the land to which the determination relates; and (b) the holders from time to time of any exploration authority or production tenement under which mining operations to which the determination relates are carried out. (4) If a native title declaration establishes that the native title parties to whom the determination relates are not the holders of native title in the land or are not the only holders of native title in the land, the determination continues in operation (subject to its terms) until a fresh determination is made, or for 2 years after the date of the declaration (whichever is the lesser). (5) A determination under this Part that authorises mining operations to be conducted under a future mineral tenement is contingent on the tenement being granted or registered. 1 See section 63W. 63W—Ministerial power to overrule determinations (1) If the Minister considers it to be in the interests of the State to overrule a determination of the ERD Court under this Part, the Minister may, by notice in writing given to the ERD Court and the parties to the proceedings before the Court, overrule the determination and substitute another determination that might have been made by the Court. (2) However— (a) the Minister cannot overrule a determination— (i) if more than two months have elapsed since the date of the determination; or (ii) if the Minister was the proponent of the negotiations leading to the determination; and (b) the substituted determination cannot create a conjunctive or umbrella authorisation1 if there was no such authorisation in the original determination nor can the substituted determination extend the scope of a conjunctive or umbrella authorisation. The scope of an authorisation is extended if the period of its operation is lengthened, the area to which it applies is increased, or the class of mining operations to which it applies is expanded in any way. 63X—No re-opening of issues If an issue is decided by determination under this Part, the parties to the proceedings in which the determination was made cannot make an agreement that is inconsistent with the terms of the determination unless the ERD Court authorises the agreement. Division 5—Miscellaneous 63Y—Non-application of this Part to Pitjantjatjara and Maralinga lands Nothing in this Part affects the operation of— (a) the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981; or (b) the Maralinga Tjarutja Land Rights Act 1984. 63Z—Compensation to be held on trust in certain cases (1) If a determination under this Part authorises mining operations on conditions requiring payment of compensation— (a) the ERD Court must decide the amount of the compensation; and (b) the compensation must be paid into the ERD Court to be held on trust and applied as required by this section. (2) Compensation paid into the ERD Court under this section— (a) must, on application by the registered representative of the native title holders, be paid out to the registered representative; or (b) if the Court, on application by an interested person, is satisfied that it is just and equitable to pay the compensation in some other way—must be paid out as directed by the Court. (3) However, if compensation is held on trust by the ERD Court under this section and— (a) a native title declaration is made to the effect that no part of the land is subject to native title; or (b) the proponent abandons the proposal to carry out mining operations on the land before exercising the right to do so and, by notice to the Minister, relinquishes the right to do so, the compensation must be repaid to the person who paid it. 63ZA—Non-monetary compensation (1) Compensation under this Part is to be given in the form of monetary compensation. (2) However— (a) if, during negotiations under this Part, a person who may be entitled to compensation requests that the whole or part of the compensation be in a form other than money,1 the other person who may be liable to pay compensation— (i) must consider the request; and (ii) must negotiate in good faith on the subject; and (b) the ERD Court may, at the request of a person entitled to compensation, order non-monetary compensation.1 Example— 1 The non-monetary compensation might take the form of a transfer of property or the provision of goods or services. 63ZB—Review of compensation (a) mining operations are authorised by determination under this Part on conditions requiring the payment of compensation; and (b) a native title declaration is later made establishing who are the holders of native title in the land, the ERD Court may, on application by the registered representative of the holders of native title in the land, or on the application of a person who is liable to pay compensation under the determination, review the provisions of the determination providing for the payment of compensation. (2) The application must be made within three months after the date of the native title declaration. (3) The Court may, on an application under this section— (a) increase or reduce the amount of the compensation payable under the determination (as from the date of application or a later date fixed by the Court); and (b) change the provisions of the determination for payment of compensation in some other way. (4) In deciding whether to vary a determination and, if so, how, the Court must have regard to— (a) the assumptions about the existence or nature of native title on which the determination was made and the extent to which the native title declaration has confirmed or invalidated those assumptions; and (b) the need to ensure that the determination provides just compensation for, and only for, persons whose native title in land is affected by the mining operations; and (c) the interests of tenement holders and investors who have relied in good faith on the assumptions on which the determination was made. 63ZBA—Mining Native Title Register (1) The Mining Registrar must establish a distinct part of the Mining Register (which may be referred to as the Mining Native Title Register) for the registration of agreements and determinations under this Part. (2) The Mining Registrar must, in respect of each agreement or determination registered under this Part, include in the Mining Native Title Register details concerning— (a) the land to which the agreement or determination relates; and (b) if relevant—the exploration authority or production tenement to which the agreement or determination relates; and (c) the parties who are bound by the agreement or determination; and (d) other information prescribed by the regulations. (3) The Mining Registrar may also note in any other part of the Mining Register any agreement or determination registered under this Part (as the Mining Registrar thinks fit). (4) An agreement or determination registered under this Part is not available for inspection under this Act if— (a) in the case of an agreement, the parties to the agreement specify in the agreement, or in some other manner determined by the Mining Registrar, that the contents of the agreement should be kept confidential under this section; (b) in the case of a determination, the ERD Court specifies in the determination that the contents of the determination should be kept confidential under this section. (5) However, subsection (4) does not prevent the inspection of an agreement or determination registered under this Part by— (a) a person engaged in the administration of this Act acting in the course of official duties; or (b) the Minister, or a person appointed to the Public Service acting in the course of official duties on behalf of, or with the authority of, the Minister; or (c) a person who is bound by the agreement or determination; or (d) a person who is acting under the joint authority of all persons who are bound by the agreement or determination (and such an authority must be given in a manner and form approved by the Mining Registrar); or (e) a person who is acting under the authority of an order or determination of the ERD Court or the Supreme Court (for the purposes of this or another Act or law). (6) An authority under subsection (5) may be given on conditions. (7) A person who contravenes or fails to comply with a condition is guilty of an offence. Maximum penalty: $50 000. 63ZC—Saving of pre-1994 mining tenements This Part does not apply in relation to— (a) a claim registered before 1 January 1994; or (b) a lease or licence granted under this Act before 1 January 1994; or (c) a renewal of a lease or licence granted under this Act before 1 January 1994 in pursuance of a legally enforceable right created before that date.