Div 4Negotiating procedure

Division 4—Negotiating procedure 53—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 mining operator; or (b) authorise mining operations of a specified class within a defined area by mining operators of a specified class who comply with the terms of the agreement. If the authorisation relates to a particular mining operator it is referred to as an individual authorisation. Such an authorisation is not necessarily limited to mining operations under a particular permit or tenement but may extend also to future permits or tenements. If the authorisation does extend to future permits or tenements it is referred to as a conjunctive authorisation. An authorisation that extends to a specified class of mining operators is referred to as an umbrella authorisation. (2) If a native title mining agreement is negotiated between a mining operator who does not hold, and is not an applicant for, a 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 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 mining operator 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 mining operator who is bound by the agreement to the exclusion of the umbrella authorisation. 54—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 two months from when notice is given under section 55, 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 mining operator who seeks the authorisation; (b) if an agreement conferring an umbrella authorisation1 is sought—the Minister or an association representing the interests of mining operators approved by regulation for the purposes of this section. 55—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. 56—What happens when there are no registered native title parties with whom to negotiate (1) If, two 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 57—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 two 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 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. 58—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. 59—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 precious stones 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 the Opal Mining Registrar and the Opal 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 Opal 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. 60—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 permit or 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 two years after the date of the declaration (whichever is the lesser). (3) Either the holders of native title in the land or the mining operator 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 mining tenement is contingent on the tenement being granted or registered. 61—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— (a) if the mining operations to which the negotiations relate are merely of an exploratory nature—four months from when the negotiations were initiated; or (b) in any other case—six 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 precious stones 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— (a) if a determination is sought only for exploring—four months from when the application is made; or (b) in any other case—six 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. 62—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. 63—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 a permit and a 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 note to section 53(1). 2 See note to section 54(1). 3 Section 53(2) is of similar effect in relation to native title mining agreements. 4 Section 53(3) and (4) are of similar effect in relation to native title mining agreements. 64—Effect of determination (1) A determination under this Division— (a) must be lodged with the Opal 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 permit or 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 two 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 mining tenement is contingent on the tenement being granted or registered. 1 See section 65. 65—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. 66—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.