'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'.
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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.
Recent amendments to the Aboriginal Heritage Act 1988
The establishment of Recognised Aboriginal Representative Bodies is a key part of the changes to the Aboriginal Heritage Act 1988 (AHA) which was proclaimed on 17 October 2017.
The amended Aboriginal Heritage Act 1988 (AHA) introduces the appointment of Recognised Aboriginal Representative Bodies (RARBs) to manage the effects of exploration, mining, development and other activities on Aboriginal heritage across South Australia.
A RARB is an incorporated body that can enter into local heritage agreements with proponents to manage impacts on Aboriginal heritage. A RARB must be able to demonstrate that it can ascertain and represent the views of the relevant traditional owners in relation to the Aboriginal heritage within the RARB’s area of responsibility.
Registered Native Title Body Corporates (RNTBCs) are taken to be the RARB in respect of the native title determination area, including areas where native title has been extinguished or suppressed. However, the appointment must be approved by the State Aboriginal Heritage Committee.
RARB appointments must be approved by the State Aboriginal Heritage Committee, and may be for:
- a specified area of land
- a specified Aboriginal site or sites
- a specified Aboriginal object or objects
- specified Aboriginal remains.
A RARB may enter into local heritage agreements with land use proponents so that impacts to Aboriginal heritage are managed in culturally appropriate ways and in agreement with the traditional owners.
Alternatives to local heritage agreements
If heritage is not represented by a RARB, certain agreements with Traditional Owners (mostly native title agreements) setting out how the heritage may be impacted can also be approved under the Heritage Act. This is called a Division A2 agreement
Local heritage agreements are submitted to the Minister for Aboriginal Affairs and Reconciliation with the relevant request for authorisation under section 21 or section 23 of the AHA for approval. Approval is dependent on the agreement satisfactorily dealing with any heritage that may be located in the relevant area. Once approved, the Minister must grant the associated authorisation.
More information about local heritage agreements can be found on the Aboriginal Affairs section of the Department of State Development's website.
More information about the Aboriginal Heritage Act