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Aboriginal Law Bulletin (ALB)
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Neate, Graeme --- "Victorian Mining Legislation Protects Aboriginal Areas" [1991] AboriginalLawB 58; (1991) 1(53) Aboriginal Law Bulletin 2


Victorian Mining Legislation Protects Aboriginal Areas

by Graeme Neate

The (Vic) Mineral Resources Development Act 1990 commenced to operate on 6 November 1991. The Act makes a number of specific provisions for the protection of Aboriginal places and objects and archeological sites which are given recognition or protection under:

(a) the (Vic) Archeological and Aboriginal Relics Preservation Act 1972; or

(b) Part IIA of the (Cth) Aboriginal and Torres Strait Islander Heritage Protection Act 1984, which applies only in Victoria.

Where an application for an exploration licence or a mining licence has priority, the chief administrator of the relevant department must give notice of the application to:

(a) any person or body nominated by the Minister administering the (Vic) Archeological and Aboriginal Relics Preservation Act 1972; and

(b) any person or body nominated in relation to the application by the Victorian Minister to whom power has been delegated under section 21B of the (Cth) Aboriginal and Torres Strait Islander Heritage Protection Act 1984.

Any person may object to a licence being granted. An objection must be in writing and sent to the Minister. The Minister may refuse a licence after considering objections. The Minister must not grant a licence over land that is exempted from being subject to a licence. The types of land which are exempted from being subject to an exploration licence, mining licence or other authority under the Act include:

(c) land that is an "Aboriginal place" under a declaration in force under the (Cth) Aboriginal and Torres Strait Islander Heritage Protection Act 1984; and

(d) land that is an "archeological area" under the (Vic) Archeological and Aboriginal Relics Preservation Act 1972 or that contains relics whose occurrence is registered under that Act.

The Minister may also, for any reason he or she decides to be appropriate, exempt any land from being subject to an exploration licence or a mining licence or both. In deciding whether to grant an exemption, the Minister must take into account the social and economic implications of the decision.

As a general rule, a person who holds an exploration licence or a mining licence must not do any work within 100 metres laterally of, or below, an archeological and Aboriginal site specified in the site register of the Victorian Archeological Survey (Penalty: 100 penalty units). However, a licensee may do work within that area or depth with the consent of a person or body nominated by the Minister administering the (Vic) Archeological and Aboriginal Relics Preservation Act 1972. That consent may be conditional on specified distance or depth restrictions. A licensee who does work in accordance with that consent must repair any damage caused to the site by the work.

A licensee must not do any work under an exploration licence or a mining licence in an area that is an Aboriginal place if doing that work would contravene any terms of the declaration in force under the (Cth) Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Penalty: 100 penalty units).

The holder of a miner's right who searches on land under that right, and the holder of a tourist fossicking authority, must not disturb and Aboriginal place in relation to which a declaration of preservation is in force under section 21C, 21D or 21E of the (Cth) Aboriginal and Tonnes Strait Islander Heritage Protection Act 1984 (Penalty: 100 penalty units).

It is an offense for the holder of a miner's right or a tourist fossicking authority to disturb on land an Aboriginal object (including Aboriginal remains) that is of particular significance to Aboriginals in accordance with Aboriginal tradition (Penalty: 100 penalty units).


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