'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
- Aboriginal engagement
- Legislative framework
- Native title land
- Indigenous land use agreements
- Aboriginal land
- Aboriginal Heritage Act 1988
It is leading practice to develop a relationship with the Aboriginal organisation on whose country you are working as early as possible in your project. This will help both parties understand and manage each other’s expectations and facilitate mutually acceptable outcomes.
Engagement refers to the interactions between a company, its contractors, Aboriginal communities, landowners and other stakeholders. It covers a broad set of activities, from information provision to partnering.
To create and maintain positive working relationships, engagement should start early and be maintained throughout the project life cycle.
The Mining Act and regulations require explorers and miners to engage with the relevant Aboriginal organisation. These organisations can help companies manage their risk of impacting Aboriginal heritage, native title rights and interests and the environment during low impact exploration, advanced exploration and mining. Early engagement is an integral part of exploration projects’ land access risk management strategy.
Depending on where the project is located Aboriginal organisations may consist of native title holders or claimants, Aboriginal land holding authorities, Aboriginal heritage committees or recognised Aboriginal representative bodies (RARBs).
For guidance on starting engagement about land access with native title groups and other traditional owners, see MG25 Guidelines for explorers on Aboriginal engagement, good faith negotiation and agreement making
Once contacted, native title groups will provide specific advice on how they wish to proceed according to their individual preferences.
The PBC website has more information on native title groups and Prescribed Bodies Corporate.
Native title land
Currently most of South Australia’s land is subject to native title claim or a court determination that confirms native title rights and interests on the land.
Land can be 'native title land' even where there is no native title claim or court determination. Unless a court has decided that native title does not exist over an area, in most cases land should be treated as native title land.
Part 9B of the Mining Act 1971 (SA) deals with mining operations on native title land. Mining operators must comply with the provisions of Part 9B before starting any operations on native land.
Exploration authority holders (mineral claim, exploration licence or retention lease limited to exploratory operations) must not perform any mining operations that affect native title unless:
- they are authorised by a native title mining agreement under Part 9B
- they are authorised by an Environment Resources and Development (ERD) Court determination
- they have registered an indigenous land use agreement (ILUA) registered under the Native Title Act that provides that statutory rights to negotiate are not intended to apply to the mining operations
- there is a state or Commonwealth declaration that the relevant land is not subject to native title.
Likewise, a production tenement (mining lease or retention lease not limited to exploratory operations) cannot be granted unless:
- the mining operations are authorised by a native title mining agreement under Part 9B
- the mining operations are authorised by an ERD Court determination
- the company has registered an ILUA under the NTA that provides that statutory rights to negotiate are not intended to apply to the mining operations
- there is a state or Commonwealth declaration that the relevant land is not subject to native title.
South Australian Resources Information Gateway (SARIG) has interactive maps showing native title areas over South Australia. Go to ‘Land and water management’ then click on ‘Property’.
Select to show any or all of the following:
- Schedule of Native Title Claims
- Registered Native Title Determination Applications
- Determinations of Native Title
- Aboriginal land
To understand more about exploration, visit Communities and land access.
Indigenous Land Use Agreements
ILUAs are voluntary agreements made between native title groups and others. They:
- deal with various matters, including access to land
- provide an alternative to agreements made under Part 9B of the Mining Act
- provide one definitive agreement all explorers can sign up to rather than making their own individual agreements, as required under Part 9B.
When registered on the Register of Indigenous Land Use Agreements under the NTA, an ILUA binds all parties and native title holders.
There are currently four ILUAs for Mineral Exploration registered on the Register of Indigenous Land Use Agreements:
(Not operational unless explorer signed up tenements before termination date)
- Gawler Ranges Mineral Exploration ILUA
- Arabunna Area ILUA
The department is currently running a project to explore ILUAs in negotiating land access for mineral exploration.
Aboriginal lands account for 22% of the state. In South Australia there are three Acts which provide freehold tenure for Aboriginal People. These are the Aboriginal Lands Trust Act 2013, the Anangu Pitjantjatjara Land Rights Act 1981 and the Maralinga Tjarutja Land Rights Act 1984.
Aboriginal Lands Trust lands
The Aboriginal Lands Trust Act 2013 was the first Australian Government attempt to grant Aboriginal People title to land. The Trust was created to ensure that:
- title to existing Aboriginal reserves remained with Aboriginal People
- mineral royalty payments were received, with which more land could be purchased
- funds were received to develop lands vested in the Trust.
Following the transfer of Aboriginal reserves and other areas of land to the Trust, the Trust leased the land back to the Aboriginal communities at nominal rates for 99-year, repeatedly renewable periods. Yalata (4516 km2) and Nantawarrina (580 km2) are the largest areas in the 5383 km2 of Trust land. Under the Act, the Trust is able, with Ministerial agreement, to sell, lease or mortgage the land vested in it. The sale of land requires the consent of both Houses of Parliament.
Access to Trust lands by exploration companies
Minerals on Trust lands remain the property of the Crown, but the South Australian Government and the Trust have signed an agreement to the effect that the Government will pay the Trust an amount equal to up to two thirds of all royalties it receives from mineral or petroleum developments on the lands.
In 1973 the Act was amended to provide protection of Trust lands from prospecting or mineral exploration unless the consent of the Trust and the traditional Aboriginal People had been obtained. A Trust policy is that no prospector, mining company or mineral exploration company will be permitted to enter Aboriginal lands vested in it without the Trust first obtaining consent of the Aboriginal community to whom the land has been leased.
Any land access granted by the Trust will be subject to terms and conditions mutually agreed upon by the Trust, the relevant Aboriginal community and the mining company, prior to commencement of any operations on the land. Terms and conditions may include compensation for damage to the land, restoration of the land, employment and training, and the safeguarding of sacred sites.
Anangu Pitjantjatjara Yankunytjatjara lands
The Anangu Pitjantjatjara Yankunytjatjara (APY) Lands cover 102,630 km2 in the northwest corner of the State.
Following the recommendations of the Pitjantjatjara Land Rights Working Party, the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act was passed in 1981, under which a corporate body, APY, holds the land in fee simple; the land cannot be sold, compulsorily acquired, resumed or forfeited, nor is land tax payable.
Access to Anangu Pitjantjatjara Yankunytjatjara lands by exploration companies
All non-APY people, except police, must apply for permission to enter the land. Exploration companies must first seek approval of the Minister for Energy and Mining before seeking permission to enter.
The Act requires APY 'to ascertain the wishes and opinions of traditional owners in relation to the management, use and control of the lands', a process requiring comprehensive consultative processes. The traditional owners have the right to seek compensation for disturbance to their ways of life which may result from the grant of the licence.
Having obtained permission of the Minister, a company may submit their application to the Executive Board of APY, which then has 120 days from the date of application to grant unconditional permission, permission subject to conditions or to refuse the application. If agreement cannot be reached on conditions of compensation, an appeal may be lodged with the Minister, who will appoint an arbitrator (having first considered representations from APY).
Royalties from minerals or petroleum are to be paid into a fund maintained by the Minister for Energy and Mining. These funds are to be divided evenly amongst APY, the Minister for Aboriginal Affairs and Reconciliation for the benefit of South Australian Aboriginal People, and to State Revenue (subject to prescribed limits).
The Aboriginal People to the south of the APY Lands sought similar legislation and, in 1984, freehold titles were given to Maralinga Tjarutja, a corporate body established under the Maralinga Tjarutja Land Rights Act over an area of 80,764 km2.
Whilst generally similar to the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 there are a number of differences, one of which is significant to exploration companies. The Maralinga Tjarutja Land Rights Act limits the payment of compensation for disturbance to the lands, the Aboriginal People and their ways of life from exploration operations to an amount no greater than compensation as provided for under the Mining Act 1971 and Petroleum and Geothermal Energy Act 2000.
Access to Maralinga Lands by exploration companies
Provisions in the Maralinga Tjarutja Land Rights Act relating to access for exploration companies are identical to those for Pitjantjatjara lands with the exception of appeals. Where an applicant feels aggrieved by a decision of Maralinga Tjarutja, the Minister for Energy and Mining with assistance from the Minister for Aboriginal Affairs and Reconciliation, attempt to resolve the matter by arbitration.
Mining operations on Aboriginal lands
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.
Further information about Aboriginal land can be found on the Anangu Pitjantjatjara Yankunytjatjara website and the Maralinga Tjarutja website.
Aboriginal Heritage Act 1988
The Aboriginal Heritage Act 1988 (the Act) 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 without Ministerial authorisation 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.
- excavate for the purposes of uncovering Aboriginal sites or objects.
Mining operators must always comply with the requirements of the Act, even where a Part 9B Agreement or ILUA sets out procedures for undertaking cultural heritage surveys.
This guideline details mineral and energy resource companies’ responsibilities to protect Aboriginal heritage and the actions required to mitigate legal, financial and other risks, as well as to foster greater stakeholder confidence in all aspects of your operations relating to Aboriginal heritage.
Recognised Aboriginal representative bodies (RARB)
RARBs may manage the effects of exploration, mining, development and other activities on Aboriginal heritage across South Australia through a local heritage agreement with proponents.
In developing a local heritage agreement, the RARB must ascertain and represent the views of the relevant traditional owners whether internal or external to their organisation in relation to the Aboriginal heritage within their area of responsibility.
Where accompanied by an authorisation from the Minister under section 23 of the Act, local heritage agreements protect proponents from prosecution under the Act for impacting heritage to the extent authorised.
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.
Division A2 agreements
Agreements with traditional owners such as native title agreements, which set out a process for managing impacts on heritage in consultation in traditional owners, may be submitted to the Minister for Aboriginal Affairs and Reconciliation for endorsement as a Division A2 agreement.
If a land use proponent - eg a miner, researcher or a government department - has an approved Division A2 agreement that allows for the excavation, damage, disturbance or interference with heritage, sections 21 and 23 do not apply to the agreed actions.
Native title and land access
A strong, principled approach to agreement-making between native title groups and explorers has the potential to both address native title holder’s needs and aspirations and provide clear, certain processes for explorers. With these issues in the global spotlight, this new project aims to unpack how leading practice thinking can be embedded into the South Australian context.
Stronger partners, stronger futures
The four-year Stronger Partners Stronger Futures project looked for ways to balance land access for mineral exploration with traditional owners’ rights and interests.
We heard that we need improvements in:
- policy and regulation around low impact exploration
- cultural heritage management processes
- cultural awareness.
Successful land access negotiations and agreement-making will only happen if all parties show a genuine commitment to building strong relationships.
2019 amendments to the Mining Act 1971, new Mining Regulations 2020 and a new Ministerial determination made improvements to the low-impact exploration process. Read more about the program and its results in the Stronger Partners Stronger Futures final report.
- MG25 Guidelines for explorers on Aboriginal engagement, good faith negotiation and agreement making (PDF 4.1 MB)
- MG27 Community guide to early and advanced exploration activities in South Australia (PDF 4.9 MB)
- Enhancing Native Title Agreement Making (PDF, 7.6 MB)