The Act seeks to amend the Aboriginal Heritage Act 1988 (SA) to recognise direct agreements between traditional owners and government, as well as developers and mining operators, regarding the use of sites protected under the Aboriginal Heritage Act. It will resolve discrepancies between current land access agreements.
Section 9 of the Act inserts Part 2B, establishing a process for registering Aboriginal and native title representative groups, including PBCs, as 'recognised Aboriginal representative bodies' (RARBs), therefore allowing them to negotiate with land use proponents. All native title claimant body corporates will become official RARBs upon the act becoming law, unless these bodies specifically opt out. Section 10 of the Bill inserts Part 3 Division A2 outlining the process for negotiating agreements with RARBS. Part 3 Division A2 enables the Minister to approve agreements affecting Aboriginal heritage under other Acts, such as the Native Title Act 1993 (Cth), after consulting with the Committee. The RARBs will also have the function of advising the Minister in relation to matters affecting Aboriginal heritage in respect of the area for which the body is appointed.
Section 6(2) of the Aboriginal Heritage Act, which stipulates that the Minister must delegate their powers under ss 21, 23, 29 and 35 to the traditional owners of the site or object at their request, will be deleted. Currently, the delegation can only be made to individuals, not groups or native title prescribed bodies corporate. The delegation is one of ministerial power, and considered at the Committee stage to mean that the people to whom it is delegated must act as if they were the minister, not as a traditional owner, when making any decision. It was noted that the operation of the section is difficult due to the unsatisfactory drafting creating internal inconsistencies within the subsections.
The Act will have no effect on the operation of the APY Land Rights Act 1981 (SA).
For further information please see the Hansard extracts of the Second Reading Speech.
Relevant provisions:
Part 2B—Recognised Aboriginal Representative Bodies
19B—Recognised Aboriginal Representative Bodies
(1) For the purposes of this Act, the "Recognised Aboriginal Representative Body for—
(a) a specified area; or
(b) a specified Aboriginal site or sites; or
(c) a specified Aboriginal object or objects; or
(d) specified Aboriginal remains,
is to be determined in accordance with this Part.
(2) Anangu Pitjantjatjara Yankunytjatjara will be taken to be the Recognised Aboriginal Representative Body in respect of the lands (within the meaning of the A n angu Pitjantjatjara Yankunytjatjara Land Rights Act 1981).
(3) Maralinga Tjarutja will be taken to be the Recognised Aboriginal Representative Body in respect of the lands (within the meaning of the Maralinga Tjarutja Land Rights Act 1984).
(4) Subject to this Part, a registered native title body corporate (within the meaning of the Native Title Act 1993 of the Commonwealth) will be taken to be appointed as the Recognised Aboriginal Representative Body in respect of the area that is the subject of the relevant native title determination under that Act (including, to avoid doubt, areas within that area in which native title has been extinguished or suppressed).
(5) However, an appointment under subsection (4)
will only have effect if the appointment is approved by the Committee (and, to avoid doubt, the Committee may refuse to approve an appointment for any reason the Committee thinks fit).
(6) If the Committee refuses to approve an appointment under subsection (4)
, that subsection will be taken to no longer apply in respect of the area that is the subject of the relevant native title determination.
(7) A registered native title body corporate that would, but for this subsection, be taken to be appointed as the Recognised Aboriginal Representative Body in respect of a particular area may, by notice given in a manner and form determined by the Committee, elect not to be the Recognised Aboriginal Representative Body in respect of the area, a specified part of the area or a specified Aboriginal site, object or remains within the area.
(8) On giving notice under subsection (7) —
(a) the appointment of the registered native title body corporate as the Recognised Aboriginal Representative Body in respect of the area will be taken to have been revoked; and
(b) if the notice relates to a specified part of an area, or a specified Aboriginal site, object or remains within the area—the registered native title body corporate will be taken to be appointed in respect of the remainder of the area; and
(c) subsection (4)
will be taken to no longer apply in respect of the area, or the specified part of the area or specified Aboriginal site, object or remains (as the case requires).
(9) The Committee may, on application, appoint the following persons or bodies as the Recognised Aboriginal Representative Body in respect of a specified area:
(a) in respect of an area that is the subject of a claim to hold native title under the Native Title Act 1993 of the Commonwealth—the registered native title claimants (within the meaning of that Act) in respect of the claim, or specified members of the registered native title claimants;
(b) in respect of an area that is the subject of an indigenous land use agreement under the Native Title Act 1993 of the Commonwealth and is not an area contemplated by subsection (2), (3) or (4) —an Aboriginal party to that agreement, or specified members of an Aboriginal party to the agreement.
(10) The Committee may, on application, appoint a person or body as the Recognised Aboriginal Representative Body in respect of a specified area (other than an area in respect of which there is already a Recognised Aboriginal Representative Body pursuant to subsection (2), (3)or (4)) or a specified Aboriginal site, object or remains.
(11) An application under this section must, if the Committee so requires, be accompanied by—
(a) if a determination of native title covers all or part of any land to which the application relates—a copy of the determination; and
(b) if an indigenous land use agreement has been entered in respect of all or part of any land to which the application relates—a copy of the agreement; and
(c) if an agreement under Part 2 Division 3 Subdivision P of the Native Title Act 1993 of the Commonwealth has been entered in respect of all or part of any land to which the application relates—a copy of the agreement; and
(d) if a native title mining agreement or native title mining determination under the Mining Act 1971 or the Opal Mining Act 1995
applies in respect of all or part of any land to which the application relates—a copy of the agreement or determination (as the case requires); and
(e) if the application relates to a particular area—a description and map of the area in a form determined by the Committee; and
(f) if the applicant is a registered native title body corporate—a copy of the constitution and rules of the body corporate; and
(g) any other document or information that the Committee may reasonably require.
(12) Before appointing a person or body as a Recognised Aboriginal Representative Body under subsection (9) or (10), the Committee—
(a) must be satisfied that the person or body—
(i) is able to ascertain and represent the views and knowledge of traditional owners of the relevant area in respect of matters relevant to the operation of this Act (including matters that involve gender-specific requirements, or some other qualification, according to the traditions of the traditional owners); and
(ii) satisfies any other requirements set out in the regulations or the guidelines for the purposes of this paragraph; and
(b) must comply with any requirements set out in the regulations for the purpose of this paragraph.
(13) The Committee may give written reasons in relation to an appointment or other decision under this section.
(14) A Recognised Aboriginal Representative Body must be a body corporate that—
(a) has perpetual succession and a common seal; and
(b) can sue and be sued in its corporate name.
(15) If a document appears to bear the common seal of a Recognised Aboriginal Representative Body, it will be presumed, in the absence of proof to the contrary, that the common seal of the Recognised Aboriginal Representative Body was duly fixed to the document.
19D—Additional functions of Recognised Aboriginal Representative Body
In addition to any function expressly conferred by or under this Act, the functions of a Recognised Aboriginal Representative Body include—
(a) advising the Minister in relation to matters affecting Aboriginal heritage in respect of the area for which the Recognised Aboriginal Representative Body is appointed; and
(b) carrying out other functions assigned to the Recognised Aboriginal Representative Body under any other Act or by the Minister.