'Native title land' is defined in the Native Title (South Australia) Act 1994 to mean 'land in respect of which native title exists or might exist'.
On this page
Currently most of the land in South Australia is subject to native title claim or a court determination which has confirmed the existence of native title rights and interests.
Land can be 'native title land' even where there is no native title claim or court determination. Unless a court has determined that native title does not exist over an area of land, in most cases land should be treated as native title land.
Part 9B of the Mining Act 1971 (SA) deals with how mining operations can be undertaken on native land.
Part 9B commenced on 17 June 1996 and is an alternative to the "right to negotiate" scheme in the Commonwealth Native Title Act 1993 (NTA). South Australia is the only state with such a scheme approved by the Commonwealth.
Mining operators must comply with the provisions of Part 9B before undertaking mining operations on native land.
The holders of an exploration authority (a mineral claim, exploration licence or retention lease that is limited to exploratory operations) must not undertake mining operations that affect native title unless:
- The mining operations are authorised by a native title mining agreement under Part 9B or a determination of the Environment Resources and Development (ERD) Court;
- An Indigenous Land Use Agreement (ILUA) registered under the NTA provides that statutory rights to negotiate are not intended to apply to the mining operations; or
- A declaration is made under State or Commonwealth legislation that the relevant land is not subject to native title.
Likewise, a production tenement (a mining lease or a retention lease that is not limited to exploratory operations) cannot be granted unless:
- The mining operations are authorised by a native title mining agreement under Part 9B or a determination of the ERD Court;
- An ILUA registered under the NTA provides that statutory rights to negotiate are not intended to apply to the mining operations; or
- A declaration is made under State or Commonwealth legislation that the land is not subject to native title.
Further information about Part 9B is set out in Information Sheet M31 Guidelines for proposed mining activities on native title land - Part 9B of the Mining Act 1971.
Interactive maps showing native title areas over South Australia are available in the South Australian Resources Information Geoserver (SARIG).
Open the SARIG application, go to the Map Layers widget Data tab, then Land Access. You can then select to show any or all of the following:
- Schedule of Native Title Claims (external boundaries of all native title determination and compensation applications currently recognised and active within the Federal Court process)
- Registered and Notified Indigenous Land Use Agreements (ILUAs) (boundaries of ILUAs that are registered on the Register of Indigenous Land Use Agreements under the NTA or that have been lodged for registration)
- Registered Native Title Determination Applications
- Determinations of Native Title
Indigenous Land Use Agreements (ILUAs) are voluntary agreements made under the NTA between native title groups and others. They can deal with various matters, including access to land, and provide an alternative native title process to that under Part 9B of the Mining Act (see above).
When registered on the Register of Indigenous Land Use Agreements under the NTA, an ILUA binds all parties and native title holders.
Over the last 10 years, South Australia has developed a unique and simple approach to dealing with native title by the use of Mineral Exploration ILUAs which are standard form agreements under the NTA. The ILUAs were developed to reduce red tape and provide certainty of access to facilitate mineral exploration and open up the potential in the State for mining.
There are currently four ILUAs for Mineral Exploration registered on the Register of Indigenous Land Use Agreements:
Part 9B of the Mining Act does not apply to the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 or the Maralinga Tjarutja Land Rights Act 1984.
Under those Acts, a person must have permission to carry out mining operations upon the relevant land and to enter the land for the purpose of carrying out mining operations.
An application for permission is to be made in writing and lodged with the Executive Board of Anangu Pitjantjatjara Yankunytjatjara or the Council of Maralinga Tjarutja (as the case may be).
An application for permission can only be made by a person who has applied for a mining tenement and has been notified that the Minister for Mineral Resources and Energy approves the making of the application for permission under the relevant Land Rights Act.
The Aboriginal Heritage Act 1988 provides for the protection and preservation of Aboriginal heritage.
This Act applies to all land within the State, and is not limited to native title land.
Importantly, under the Aboriginal Heritage Act it is an offence to:
- Damage, disturb or interfere with any Aboriginal site; or
- Damage any Aboriginal object; or
- Where any Aboriginal object or remains are found –
- Disturb or interfere with the object or remains; or
- Remove the object or remains.
Mining operators must always comply with the requirements of the Aboriginal Heritage Act, even where a Part 9B agreement or ILUA sets out procedures for undertaking cultural heritage surveys.
More information about the Aboriginal Heritage Act