Native Title (South Australia) Act 1994

This

Act may be cited as the Native

Title (South Australia) Act 1994.

In this Act and in every other Act or statutory instrument, unless the contrary intention appears—

Aboriginal group—an

Aboriginal group consists of all the persons who hold, or claim to hold, according to a particular body of traditional laws and customs, native title in a particular area of land and, if there is only one such person, that person constitutes the group;

Aboriginal peoples means peoples of the Aboriginal race of Australia;

affect—an act or activity affects native title if it extinguishes native title or it is wholly or partly inconsistent with the continued existence, enjoyment or exercise of rights deriving from native title¹;

claimant application means an application for a native title declaration that native title exists in land made on behalf of an Aboriginal group claiming to hold native title in the land;

native title—see section 4;

native title declaration means a declaration under this Act or a determination under the

Native

Title Act 1993

(Cwth) that land is subject to, or not subject to, native title;

native title holder (or any other expression referring to a person or persons who hold native title in land) means—

if a body corporate is registered on a native title register as holding the native title on trust—the Aboriginal group for whom the native title is held on trust;

in any other case—the Aboriginal group recognised at common law as holding the native title;

native title land means land in respect of which native title exists or might exist but does not include—

land found or declared by the Supreme Court or the Environment, Resources and Development Court not to be subject to native title; or

land found or declared by a competent authority under a law of the

Commonwealth not to be subject to native title;

native title party in relation to land means—

an

Aboriginal group registered under this Act or the Native

Title Act 1993

(Cwth) as the holder of native title in the land; or

an

Aboriginal group registered under this Act or the Native

Title Act 1993

(Cwth) as a claimant to native title in the land;

native title question means a question about—

the existence of native title in land; or

the nature of the rights conferred by native title in a particular instance; or

compensation payable for an act extinguishing or otherwise affecting native title; or

acquisition of native title in land, or entry to and occupation, use or exploitation of, native title land under powers conferred by an Act of the Parliament; or

any other matter related to native title, (but does not include a question arising in criminal proceedings);

native title register means the State

Native Title Register kept under this Act or the National

Native Title Register or the Register of Native Title Claims kept under the Native

Title Act 1993 (Cwth);

non-claimant application means an application for a native title declaration that is not a claimant application;

registered—an

Aboriginal group is taken to be registered as holders of, or claimants to, native title in land if identified or described in a native title register as holders of, or claimants to, native title in the land (as the case requires);

registered native title rights of a native title party means the party's native title rights and interests (held or claimed to be held by the party) as described in the relevant entry in a native title register;

registered representative of native title holders means—

the body corporate that is the registered native title body corporate in relation to the native title under the law of the Commonwealth; or

the body corporate registered in the register of native title kept under the law of the State as the registered representative of the native title holders;²

registered representative of claimants to native title means—

the person registered under the Native

Title Act 1993

(Cwth) in the Register of Native Title Claims as the registered native title claimant; or

the person registered in the State

Native Title Register as the registered representative of the claimants;

representative

Aboriginal body means—

a body determined under section 202(1) of the Native

Title Act 1993

(Cwth) to be a representative body for the relevant area; or

a body recognised under section 203AD of the Native

Title Act 1993

(Cwth) as the representative body for the relevant area.

In this Act and in every other Act or statutory instrument—

a reference to native title extends (unless the context otherwise indicates or requires) to rights and interests comprised in, deriving from, or conferred by native title;

a reference to rights or interests (or rights and interests) deriving from or conferred by native title is a reference to rights or interests (or rights and interests) comprised in, deriving from or conferred by native title.

In this Act—

Commonwealth

Act means the Native

Title Act 1993 (Cwth);

Commonwealth

Registrar means the Native Title Registrar appointed under Part 5 of the

Native

Title Act 1993 (Cwth);

Commonwealth

Minister means the Minister of State for the Commonwealth designated by regulation as the Commonwealth Minister for the purposes of this

Act;

Court means the Supreme Court or the ERD Court;

ERD

Court means the Environment, Resources and Development Court;

mining tenement means a licence, lease or other authority under a relevant Act authorising exploration for, or recovery or exploitation of, minerals, petroleum or other underground resources;

proceedings does not include criminal proceedings;

Registrar means the Registrar of the ERD Court;

relevant

Act means—

the

Mining

Act 1971;

or

the

Opal

Mining Act 1995;

or

the

Petroleum

Act 1940;

right to exclusive possession of land means a right to possession, occupation, use and enjoyment of land to the exclusion of all others;

State

Minister means the Minister designated by regulation as the State Minister for the purposes of this Act.

An explanatory note to a provision of this Act forms part of the provision to which it relates.

Editorial

Notes—

1 Cf section 227 of the Commonwealth Act.

2 See

Part 4.

The expression native title means the communal, group or individual rights and interests of

Aboriginal peoples in relation to land or waters where—

the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the

Aboriginal peoples; and

the

Aboriginal peoples, by those laws and customs, have a connection with the land or waters; and

the rights and interests are recognised by the common law; and

the rights and interests have not been extinguished or have revived.¹

Without limiting subsection (1),

rights and interests in that subsection includes hunting, gathering, or fishing, rights and interests.

Subject to subsections (3a) and (4), if native title rights and interests as defined by subsection (1) are, or have been at any time in the past, compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples, those statutory rights and interests are also covered by the expression native title.

Subsection (3) does not apply to rights and interests conferred by Part 2 Division

3 Subdivision Q of the Commonwealth Act (which deals with statutory access rights for native title claimants).

To avoid doubt, subsection (3) does not apply to rights and interests created by a reservation or condition (and which are not native title):

in a pastoral lease granted before 1 January 1994; or

in legislation made before 1 July 1993, where the reservation or condition applies because of the grant of a pastoral lease before 1

January 1994.

Explanatory

note—

1 If sections 47, 47A and 47B of the Commonwealth Act are valid enactments of the Commonwealth Parliament, it is possible that native title may revive in certain circumstances under those sections.

A registered representative of native title holders or native title claimants represents the Aboriginal group that holds or claims to hold native title in the land so that (for example)—

a notice is given to the Aboriginal group by giving it to the registered representative; and

a person negotiates with the Aboriginal group by negotiating with the registered representative; and

an agreement lawfully negotiated by the registered representative with respect to the land in which the native title is claimed or held is binding on the Aboriginal group.

The above examples are not intended to be an exhaustive statement of the ways in which a registered representative might act on behalf of the

Aboriginal group nor are they intended to suggest that the group may only act through the registered representative.

The

Supreme Court and the ERD Court each have jurisdiction to determine native title questions.¹

However, if it is clear before proceedings are commenced that they involve a native title question, the proceedings should be commenced in the

ERD Court.

If proceedings are commenced in the ERD Court because of subsection (2), the Court has jurisdiction to decide not only the native title questions but also the other questions raised in the proceedings.

The same procedural and other rules apply to both the Supreme Court and the ERD Court in exercising the jurisdiction to determine native title questions.

Explanatory

note—

For

example, the same rules about costs would be applied by both

Courts.²

Editorial

Notes—

1 The jurisdiction includes power to make a native title declaration ie a declaration that particular land is subject to or not subject to native title.

2 See section 29 of the Environment,

Resources and Development Court Act 1993.

The

Supreme Court may, and other courts of the State must, refer proceedings involving a native title question to the ERD Court for hearing and determination.

If proceedings are referred under this section to the ERD Court for hearing and determination, the ERD Court has jurisdiction to hear and determine the native title question and the other questions involved in the proceedings that might, if it were not for the reference, have been determined by the court from which the proceedings were referred.

The

ERD Court may, on application by a party or on its own initiative, refer proceedings involving a native title question to the Supreme

Court for hearing and determination.

The

Supreme Court may, on the application by a party or on its own initiative, remove proceedings involving a native title question from the ERD Court into the Supreme Court for hearing and determination.

In deciding whether proceedings involving a native title question should be heard by the Supreme Court or the ERD Court, the following matters must be taken into consideration:

the importance of the questions involved in the proceedings; and

the complexity of the legal and factual questions involved in the proceedings.

In proceedings involving a native title question, the Court must make use of the expert assistance of native title commissioners appointed under the Environment,

Resources and Development Court Act 1993.

Before the Court proceeds to a formal hearing of contested proceedings involving a native title question, it must call a conference of the parties to the proceedings to explore the possibility of resolving the matters in dispute by agreement and without resorting to a formal hearing.

However, the Court may dispense with a conference if the Court is of the opinion that no useful purpose would be served by a conference between the parties before the hearing of the matter or there is some other adequate reason for dispensing with a conference.

A mediator selected by the Court from among the Judges of the Court and the native title commissioners in accordance with the rules of the Court will preside at the conference.

A member of the Court may be appointed to assist a mediator in the conduct of the conference and a member so appointed is entitled to be present at the conference and to provide advice to the mediator.

The mediator may adjourn or reconvene the conference from time to time.

The mediator may allow a person to participate in the conference by—

telephone;

or

closed-circuit television; or

other means of communication.

The mediator may exercise powers of the Court delegated by the rules.

If a settlement is reached at a conference, the Court may make orders to give effect to the terms of agreement.

If it appears that there is no reasonable prospect of reaching a negotiated settlement within a reasonable time, the mediator must close the conference and report the failure to reach agreement to the Court.

Evidence of anything said or done in a conference under this Division is inadmissible in proceedings before the Court unless all parties to the proceedings consent.

Unless all parties agree to the contrary, a member of the Court who has acted as mediator, or assisted a mediator, at a conference under this Division is disqualified from taking further part in the proceedings.