Aboriginal Heritage

 

aboriginal_heritageThe Aboriginal Heritage Act 1988 enables the Minister for Aboriginal Affairs to delegate responsibility to Aboriginal people and communities for their cultural and archaeological sites. The legislation and associated processes encourage companies to liaise with Aborigines to assist with the protection of Aboriginal heritage in South Australia. Companies should contact Primary Industries and Resources, South Australia (PIRSA) if they require assistance with identifying the appropriate Aboriginal persons and communities. Sites discovered during operations are to be notified to the Minister (this is done through the Department of State Aboriginal Affairs or DOSAA). Penalties for damage to sites are A$50 000 in the case of a company, and A$10 000 or six months imprisonment in any other case. Statements of environmental objectives (SEOs) covering exploration and production activities carried out in petroleum licence areas list the legislation (including the Aboriginal Heritage Act 1988) that is relevant to these activities. Objectives aimed at avoiding disturbance to cultural heritage sites are also included in the SEOs.

Aboriginal Land

Aboriginal lands account for 19% of the State (Fig. 3.1). In South Australia there are three Acts which provide freehold tenure for Aborigines. These are the Aboriginal Lands Trust Act 1966, the Pitjantjatjara Land Rights Act 1981 and the Maralinga Tjarutja Land Rights Act 1984.

Aboriginal Lands Trust lands

The Aboriginal Lands Trust Act was the first Australian Government attempt to grant Aborigines title to land. The Trust was created to ensure that:

  • title to existing Aboriginal reserves remained with Aborigines
  • 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 (Fig. 3.1). 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 all royalties it receives from mineral or petroleum developments on the lands. Aborigines who live in, or have association with, the area to be mined will receive 50% of the royalties under the Petroleum Act.

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 Mineral Resources Development 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 Mineral Resources Development. These funds are to be divided evenly amongst APY, the Minister for Aboriginal Affairs and Reconciliation for the benefit of South Australian Aborigines, and to State Revenue (subject to prescribed limits).

Maralinga lands

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 Mineral Resources Development, with assistance from the Minister for Aboriginal Affairs and reconciliation, attempt to resolve the matter by arbitration.

Aboriginal policies on mining

The 25th Annual Report of the Aboriginal Lands Trust for the year ending 30 June 1991 stated that ‘The Trust wishes to make it clear that it is not opposed in principle to mining on Aboriginal land, as long-term benefits to the Aboriginal people in the form of royalties and employment and training opportunities arising out of successful mining operations are apparent’.

Archie Barton, Administrator for Maralinga Tjarutja, in speaking about his organisation’s policy in December 1990 at the South Australian Department of Mines and Energy seminar, South Australia — Exploration Towards 2000, stated ‘Our office door is always open to those who are prepared to meet and visit the community to discuss these things (i.e. exploration)’. At the same seminar, Richard Bradshaw, a lawyer for Anangu Pitjantjatjara, stated that ‘Anangu Pitjantjatjara’s policy regarding petroleum exploration remains unchanged since 1984–85. In general terms, petroleum exploration appears to be more readily accommodated by the cultural and other restraints applying than exploration for other minerals’.

Petroleum exploration activity is currently being undertaken over Maralinga Tjarutja and Anangu Pitjantjatjara Yankunytjatjara Aboriginal lands in South Australia.

Current status of petroleum exploration on Aboriginal lands

A ground breaking agreement had been conlcuded in June 2007 between Maralinga Tjarutja and Officer Basin Energy Pty Ltd in respect tot he area of Petroleum Exploration Licence Applications (PELAs) 81 nad 253 in Maralinga Tjarutja Lands, with PEls 81 and 253 subsequently granted. This agreement led the way for considerable seismic activity that commenced in October 2007 in such areas, in advance of a significant proposed drilling program.

Access negotiations for petroleum exploration on APY and Maralinga Lands have been concluded in July 2009 in respect to PELA 138 and are in progress for PELAs 140-143, 147, 148, 303 and 351. The remaining Aboriginal lands are generally of a nominal size of no more that a few hundred hectares and in some cases are contained in existing licence and licence application areas. The grant of PEL 138 in APY Lands in 2009 has resulted in proposed considerable seismic activity in advance of a significant proposed drilling program.