Pastoral Land Management and Conservation Act 1989

The primary cohort is pastoral lessees—individuals, companies or trusts holding leases granted under the Act or converted from the 1936 regime. They bear the general duty in s.7 to manage land according to good practices, prevent degradation and improve condition within financial limits. Lessees must furnish annual stock returns (s.42), comply with property plans (s.41), respond to destocking or remedial notices (s.43), and maintain infrastructure. They are also subject to rent, rates and compliance with a long list of cross-referenced statutes.

The Minister for the relevant portfolio and the Pastoral Board exercise ongoing supervisory functions. The Board, deliberately constituted with expertise from administration, ecology, soil conservation, industry and conservation sectors (s.12(2)), makes recommendations on lease grants, assesses land condition, varies conditions, issues notices and decides on extensions or cancellations. The Minister holds residual powers over rent reductions for hardship or special measures (s.23(6),(10)), resumption (s.32), and enforcement.

Aboriginal persons are direct beneficiaries of statutory rights under s.47 to follow traditional pursuits, rights that prevail over the lease terms and may be expanded or contracted by ILUAs. Native title groups that are parties to ILUAs gain binding agreements, rights to give directions to trespassers (s.48(10)), and participation in the public register (s.48A). ILUAs also bind contiguous land managed by a lessee (s.46A(2)).

The broader South Australian community obtains regulated access via public access routes, stock routes and the qualified camping rights in s.48. Regional landscape boards must be consulted on assessments, property plans and route dedications (ss.5(b), 41(9), 45(5)). Valuers-General, SACAT (with specialist assessors), the Registrar-General and authorised officers (including police) all exercise statutory roles.

Renewable energy proponents are now expressly contemplated. Holders of hydrogen generation licences or renewable energy licences may obtain resumption of land (s.32(3)(a)) and the Crown may recover compensation paid to lessees from them (s.39(3)). The Act facilitates concurrent use without cancelling the underlying pastoral lease.

Finally, adjacent landholders, travellers moving stock (s.46), and any person who might trespass, obstruct routes or misuse land (s.57) are regulated. The Act therefore affects a wide spectrum from intensive land managers through to occasional recreational users and large-scale energy developers.

Duties of lessees: Section 7 imposes a continuing duty to use good land management practices, prevent degradation and improve land condition within financial resources. This is reinforced by mandatory lease conditions (s.22(1)(b)) limiting stock species and numbers, requiring maintenance of fences and watering points, and prohibiting non-pastoral use without Board approval (s.22(6)). Lessees must submit property plans when required (s.41), comply with destocking or remedial notices (s.43), provide annual and ad hoc stock declarations (s.42), and not obstruct authorised access. Failure without reasonable excuse constitutes a breach of conditions (ss.41(10), 42(7), 43(5)).

Duties of the Minister and Board: Under s.5 both must act consistently with the s.4 objects, have regard to applicable government, regional landscape board and planning instruments, and to the terms of any ILUA. The Board must cause land assessments every 14 years (s.25), provide lessees with reports and proposed actions, and consider lessee comments after any s.25B assistance process. Procedural fairness obligations appear throughout, including notice requirements before adverse action (s.40) and prohibitions on capricious or vexatious exercise of powers (s.41(2)).

Rights of lessees: Lessees enjoy a 42-year term (subject to assessment-based extension under s.26), security against arbitrary cancellation (s.37(2) requires opportunity to remedy or necessity to prevent damage), compensation on resumption or non-extension (s.39, based on market value as if extended), and rights to seek rent reduction for changed profitability, uncompensated works or special anti-degradation measures (s.23(6)). They may apply for approval to run additional species, exceed stocking rates, or use land for conservation or carbon farming (s.22(6)). Reviews before SACAT are available for most adverse decisions (s.50).

Rights of Aboriginal persons and native title groups: Section 47 confers entry, travel and camping rights for traditional pursuits, immune from lease terms. ILUAs can expand these or impose reasonable limits for cultural sites, safety or protection of native title activities (s.48(2a)). ILUAs bind all current and future lessees and occupiers of contiguous land (s.46A), create modified duties of care (s.46B), and must be endorsed on the lease (s.46C). A public register provides transparency (s.48A).

Public rights: Qualified rights to travel and camp on public access routes or, with notice, across lease land on foot (s.48). Stock routes and travelling stock provisions (s.46) allow movement with daily distance minima and compensation where feed is taken.

Rights concerning renewable energy and carbon farming: The objects now expressly include concurrent renewable energy use (s.4(f)) and carbon farming or conservation as ancillary or primary purposes with Board approval (s.4(h), s.22(6)(c)-(d)). The Crown retains the right to grant renewable energy licences over lease land (s.22(1)(c)(iii)).

The Act deploys a graduated enforcement regime. Breaches of lease conditions may attract a Board-imposed fine not exceeding $10,000 or cancellation (s.37(1)). Cancellation requires either failure to remedy after reasonable opportunity or necessity to prevent damage (s.37(2)). On cancellation the Board may order compensation not exceeding market value less Board costs (s.37(3)) and the land is freed of encumbrances (s.37(4)). Fines are paid into the Consolidated Account and recoverable as debts (s.37(5)).

Specific offences carry their own penalties: misuse of pastoral land (occupying without authority, introducing animals, damaging vegetation, polluting water, littering, erecting structures, hunting) attracts a maximum $10,000 fine or $315 expiation (s.57); hindering or obstructing authorised persons or using offensive language is $2,500 (or 6 months imprisonment for assault) with $210 expiation options (s.63); trespass on ILUA land interfering with enjoyment can result in $2,500 or 6 months imprisonment (s.48B). Travelling stock offences carry $1,250 maxima (s.46), as do obstructing public access routes or failing to provide gates (s.49).

Authorised officers possess arrest, name-and-address and removal powers (s.60). The Board or Minister may recover costs of musters, property plan preparation, remedial works or destocking as debts, secured by a statutory charge ranking ahead of all other encumbrances except Crown ones (s.66). Late rent incurs gazetted penalties treated as rent (s.35). The general defence of reasonable care applies to all offences (s.69(2)).

Evidentiary aids include certificates from the Minister, Valuer-General or Surveyor-General (s.68), and presumptions concerning authorised persons in ILUA trespass proceedings (s.48B(5)).

The Act is expressly non-derogating from the Mining Act 1971, Opal Mining Act 1995, Petroleum and Geothermal Energy Act 2000 and, by extension, the Hydrogen and Renewable Energy Act 2023 (s.62). Reservations preserve Crown ownership of minerals and the right to grant renewable energy licences (s.22(1)(c)).

Heavy cross-referencing occurs with the Landscape South Australia Act 2019: lessees must comply with it (s.22(1)(a)(v)(A)), property plans and destocking notices requiring permits must consult the relevant authority (ss.41(9a), 43(2a)), and regional landscape boards are consulted on assessments, rents and routes (ss.5(b), 23(2)(a)(iv), 45(5)).

Native title is central. ILUAs registered under the Native Title Act 1993 (Cth) are given statutory teeth (Division 2A of Part 6), binding lessees who were not parties, modifying common-law duties of care, and displacing certain Wrongs Act 1936 provisions (s.46B(3)). The definition of “native title group” in s.3(1) tracks the Commonwealth Act while allowing regulatory expansion or exclusion.

Interaction with the South Australian Civil and Administrative Tribunal Act 2013 is detailed in Part 7: SACAT exercises review jurisdiction over valuations de novo (s.53(5)), original jurisdiction for lease condition variations on partial resumption (s.32(6)), and compulsory conciliation without counsel (s.52). Specialist assessor panels are mandatory (s.50(3)).

The Valuation of Land Act 1971 governs unimproved value determinations, modified by additional mandatory considerations in s.23(2)(a). The Dog Fence Act 1946, Arkaroola Protection Act 2012 and Public Sector (Honesty and Accountability) Act 1995 are all engaged.

The Act prevails over general stamp duty on lease grants and extensions (s.27) and requires the Registrar-General to issue, cancel and endorse leases (s.65). Debts owed to the Board become charges with super-priority (s.66). Service rules supplement general law (s.67).

The most significant recent amendments are contained in the Pastoral Land Management and Conservation (Use of Pastoral Land) Amendment Act 2024, which commenced on 27 June 2024. It inserted definitions of “carbon farming” and “conservation purposes” into s.3(1), expanded the objects in s.4 to expressly allow pastoral land to be used for conservation or, where already used for pastoral or conservation, for carbon farming (new paragraphs (g) and (h)), and amended s.7, s.8 (with a new note), s.19(2), s.20(1), s.22(6), s.23(6), s.25(2) and s.42 to facilitate these uses. The changes respond to growing recognition that rangelands can deliver environmental services beyond grazing, particularly biodiversity protection and carbon sequestration, without necessitating lease surrender. A transitional provision validates pre-commencement approvals for non-pastoral uses.

The Hydrogen and Renewable Energy Act 2023 amendments (commencing 11 July 2024) inserted definitions of associated infrastructure activity, hydrogen generation facility, renewable energy infrastructure and their respective licences. Objects, lease conditions, resumption notice periods, compensation recovery from licence holders, and boundary alteration powers were adjusted to accommodate large-scale renewable projects on pastoral land while preserving the underlying lease where only part is resumed.

The 2014 renewable energy amendments had earlier paved the way; the 2023 and 2024 changes simply updated terminology and expanded permissible non-pastoral uses. The 2004 amendments (Act No 35) introduced the modern ILUA regime, assistance pool, revised assessment and extension processes, and SACAT’s predecessor, reflecting native title jurisprudence post-Wik and the need for more structured land condition science. The 1998 amendments fundamentally rewrote the rent provisions (current s.23) to base rent on percentage of unimproved value rather than fixed schedules, responding to industry viability concerns in variable climatic conditions.

These changes illustrate a legislative trajectory from pure grazing regulation toward a flexible, multi-use tenure capable of supporting net-zero, biodiversity and economic objectives simultaneously.

The Act itself contains no reported superior court challenges to its core validity, but several provisions have generated litigation or controversy. SACAT and its predecessor, the Pastoral Land Appeal Tribunal, have heard numerous reviews of lease cancellations, condition variations, rent determinations and property plan requirements. Because s.53 requires de novo hearings on valuations and the Tribunal sits with specialist assessors, many disputes resolve on factual findings about land condition or stocking capacity rather than legal interpretation.

Controversy has surrounded the interaction between pastoral leases and native title. The introduction of the ILUA provisions in 2004 was a direct response to uncertainty after The Wik Peoples v Queensland (1996) 187 CLR 1 and the Native Title Amendment Act 1998 (Cth). Section 46B’s modification of occupier liability and displacement of Wrongs Act 1936 ss.17C(4) and (6) has been criticised by some pastoralists as unduly favouring native title groups, while Aboriginal organisations have argued the public register (s.48A) and authorised person presumptions (s.48B(5)) are insufficiently robust.

Resumption for renewable energy has emerged as a flashpoint. The shortened two-month notice period for hydrogen-related resumptions (s.32(3)(a)) and the Crown’s right to recover compensation from licence holders (s.39(3)) were inserted to reduce investor risk, but have raised concerns about procedural fairness for lessees whose operations may be fragmented. Boundary alteration powers under s.31(1a) where renewable projects are not substantially completed within five years reflect a legislative recognition that some projects may fail to proceed, yet the compensation and rent adjustment mechanics remain untested in court.

The s.7 duty “within the limits of financial resources” has been contentious in drought years; lessees argue it prevents unrealistic rehabilitation demands, while the Board has emphasised that the duty is ongoing and informs decisions on lease extension (s.26(5)(b)). No Supreme Court decision has authoritatively construed the phrase, leaving scope for future litigation.

Evidentiary certificates under s.68 have generally been treated as conclusive in the absence of contrary proof, limiting collateral attacks on land status or route delineation.

Overall, the controversy profile reflects tension between long-term ecological imperatives, economic viability of extensive grazing, native title outcomes, and the newer push for renewable energy and carbon markets on the same land base.

Most practitioners miss that the s.7 duty to improve land condition “within the limits of financial resources” is not a complete answer to a s.43 destocking notice or s.37 cancellation proceeding; the Board may still form the view that cancellation is necessary to prevent irreversible degradation even where the lessee is financially constrained. The onus in the general defence (s.69(2)) lies on the defendant to prove reasonable care.

The ILUA provisions contain a subtle trap: an ILUA binds a current lessee even if that lessee was not a party to the original agreement (s.46A(1)), and “pastoral land” for ILUA purposes includes contiguous land inside the perimeter fence but not formally part of the lease (s.46B(5)(b)). Lessees acquiring an existing lease therefore inherit ILUA obligations they may never have negotiated.

Section 22(5) voids any minimum stocking rate condition, yet the Board can still use maximum stocking levels, destocking notices and property plans to achieve de facto minimums by requiring rehabilitation. The distinction is technical but critical in negotiations.

Rent reductions under s.23(6) for “special measures to remedy or prevent degradation” are discretionary and require Board recommendation plus Ministerial satisfaction; many lessees assume these are automatic once works are undertaken. They are not.

The 14-year assessment cycle (s.25) runs from the Board’s resolution date (s.26(7)), not the physical inspection date, and the lessee’s s.25B assistance application window is strictly 60 days from forwarding of the report. Missing it forfeits independent expert input before the Board acts.

Authorised officers’ entry powers (s.61) do not require notice where an offence is believed on reasonable grounds; however, the definition of “authorised officer” includes any police officer ex officio, creating unexpected enforcement avenues.

Finally, the statutory charge under s.66 for Board-incurred costs ranks ahead of all mortgages except Crown ones; financiers must obtain Board consent or ensure compliance mechanisms are embedded in loan documents.

Compliance begins with a thorough due-diligence on acquisition. Purchasers should obtain the most recent s.25 assessment, any current property plan, ILUA details from the public register (s.48A), and confirmation of stock returns for the preceding three years. Ministerial consent to transfer is mandatory (s.28(1)) and cannot be unreasonably withheld; applications should demonstrate the transferee’s capacity to meet the s.7 duty.

Lessee obligations are cyclical. By 31 July each year a statutory declaration of stock levels as at 30 June must be lodged (s.42(1)), unless the Board has exempted the lease because it is used for approved non-pastoral purposes (s.42(1a)). Every 14 years the Board will notify an impending assessment; within 28 days’ notice the lessee should prepare by collating historical data and, if the report is adverse, promptly apply for s.25B assistance from the Ministerial pool within the 60-day window, identifying specific disputes.

Property plans required under s.41 must be prepared in consultation with the regional landscape board and, where they would otherwise require a permit under the Landscape South Australia Act 2019, after consultation with the relevant authority (s.41(9a)). Implementation is mandatory; voluntary plans can be submitted for endorsement to provide evidentiary protection.

Rent accounts arrive annually (or on a common due date fixed by the Board). Any request for reduction under s.23(6) should be supported by detailed evidence of changed profitability, uncompensated works or degradation measures. Hardship waivers are separate and discretionary (s.23(10)).

For non-pastoral uses, written Board approval is required before commencing carbon farming, conservation activities or additional stock species (s.22(6)). Approvals may be conditional; any conditions become enforceable lease terms. Renewable energy proponents should note that partial resumption for hydrogen or associated infrastructure triggers shorter notice but also potential boundary restoration if construction is not substantially completed within five years (s.31(1a)).

Access obligations are ongoing: gates on stock routes and public access routes must remain unlocked and stock-proof (ss.46(4), 49(2)); ILUA directions from authorised persons (lessee or native title group) must be obeyed (s.48(10)-(11)). Annual rent, rates and compliance with the listed statutes in s.22(1)(a)(v) are strict conditions.

Record-keeping is essential. Minutes of Board meetings, assessment reports, property plans, stock declarations and correspondence should be retained indefinitely given the 42-year term and potential compensation calculations on resumption or non-extension (s.39). Insurance and financing documents should expressly contemplate the statutory charge (s.66) and the possibility of lease cancellation without full market compensation where the Board has incurred remediation costs.

Where disputes arise, compulsory SACAT conciliation (s.52) must be attended personally; legal representation is excluded at that stage. Early engagement with the Board on proposed variations or extensions under s.26 maximises prospects of 42-year renewal. In short, compliance is achieved by treating the lease as a living, periodically recalibrated public-private environmental management contract rather than a static grazing right.