South Australia

Pastoral Land Management and Conservation (Indigenous Land Use Agreements) Amendment Bill 2004

A Bill For

An Act to amend the Pastoral Land Management and Conservation Act 1989.

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Amendment provisions

Part 2—Amendment of Pastoral Land Management and Conservation Act 1989

4 Amendment of section 3—Interpretation

5 Amendment of section 4—Objects of this Act

6 Amendment of section 5—Duty of the Minister and the Board

7 Insertion of Part 6 Division 2A

Division 2A—Indigenous land use agreements

46A Indigenous land use agreement binding on lessees

46B Immunity from liability

8 Amendment of section 47—Rights of Aboriginal persons

9 Amendment of section 48—Right to travel across and camp on pastoral land

10 Insertion of sections 48A and 48B

48A Public register

48B Trespassers on pastoral land the subject of an ILUA

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Pastoral Land Management and Conservation (Indigenous Land Use Agreements) Amendment Act 2004.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Pastoral Land Management and Conservation Act 1989

4—Amendment of section 3—Interpretation

(1) Section 3, definition of Aborigine—delete the definition and substitute:

Aboriginal person means a descendant of the Aboriginal people who is accepted as a member by a group in the community who claim descent from the Aboriginal people;

(2) Section 3—after the definition of degradation insert:

ILUA means an indigenous land use agreement registered under Part 2 Division 3 of the Native Title Act 1993 of the Commonwealth, the parties to which must include, but are not limited to, the Crown, a lessee of pastoral land and a native title group;

(3) Section 3—after the definition of motor vehicle insert:

native title group means a native title group under section 24CD of the Native Title Act 1993 of the Commonwealth who is a party to an ILUA;

5—Amendment of section 4—Objects of this Act

Section 4(d)—delete "Aborigines" and substitute:

Aboriginal persons

6—Amendment of section 5—Duty of the Minister and the Board

Section 5—after paragraph (b) insert:

(c) must have regard to the relevant terms of any ILUA.

7—Insertion of Part 6 Division 2A

Part 6—after Division 2 insert:

Division 2A—Indigenous land use agreements

46A—Indigenous land use agreement binding on lessees

(1) An ILUA that is in force in relation to pastoral land is binding on the current lessee of the land whether or not the lessee was the person with whom the ILUA was made.

(2) A lessee of pastoral land may enter an ILUA in relation to contiguous pastoral land that is under the lessee's management and control (and the lessee of the contiguous pastoral land will be taken not to be the occupier of that land for the purposes of this Division).

(3) An ILUA that is in force in relation to pastoral land the subject of subsection (2) is binding on the current occupier of the land whether or not the occupier was the person with whom the ILUA was made.

46B—Immunity from liability

(1) Subject to this section, no civil liability attaches to a party to an ILUA for injury, damage or loss—

(a) caused by another party to the ILUA; or

(b) suffered by a person who is unlawfully on pastoral land the subject of the ILUA unless the injury, damage or loss was caused intentionally or through gross negligence.

(2) Subject to this section, an ILUA may—

(a) modify the duty of care or standard of care required of a party to an ILUA as against another party to the ILUA; or

(b) limit the civil liability of a party to an ILUA as against another party to the ILUA.

(3) To avoid doubt, sections 17C(4) and (6) of the Wrongs Act 1936 do not apply to an occupier of pastoral land the subject of an ILUA.

(4) Nothing in this section affects the operation of a statutory insurance or compensation scheme.

(5) For the purposes of this section, a reference to—

(a) a party to an ILUA includes a reference to—

(i) in the case of a lessee of pastoral land—

(A) that lessee, in relation to pastoral land used by the lessee for pastoral purposes that is contiguous to land the subject of the pastoral lease; and

(B) a family member, employee or invitee (not being a person entering the pastoral land under section 48) of the lessee that is on the pastoral land; and

(ii) in the case of a native title group—an invitee of an Aboriginal person exercising a right of entry or staying on the pastoral land under the ILUA or section 47(1).

(b) a reference to pastoral land includes a reference to contiguous land that is located within the perimeter fence line of land the subject of a pastoral lease, but is not the subject of the lease.

8—Amendment of section 47—Rights of Aboriginal persons

(1) Section 47(1)—delete "subsection (2), an Aborigine" and substitute:

this section, an Aboriginal person

(2) Section 47(2)—delete "Aborigine" and substitute:

Aboriginal person

(3) Section 47—after subsection (2) insert:

(3) An ILUA in force in relation to particular pastoral land may—

(a) confer a right to enter, travel across or stay on the land in addition to the rights conferred by subsection (1); or

(b) remove or qualify, or make any other provision in relation to, the rights conferred by subsection (1).

9—Amendment of section 48—Right to travel across and camp on pastoral land

(1) Section 48(2)—after "Act" insert:

and to the terms (if any) of an ILUA relating to public access and activities on the land in force in relation to the land

(2) Section 48—after subsection (2) insert:

(2a) A term of an ILUA may only limit a right conferred by subsection (1) to the extent reasonably necessary for the following purposes:

(a) restricting public access to places identified by the native title group as being places of cultural significance;

(b) preventing injury, damage or loss to any person that may arise from an activity undertaken under the ILUA or under section 47(1);

(c) protecting an activity of the native title group on pastoral land the subject of the ILUA.

(3) Section 48(4)—after paragraph (b) insert:

(c) within a radius of one kilometre of a campsite of Aboriginal persons or the location of an event of cultural significance to the native title group.

(4) Section 48—after subsection (8) insert:

(8a) A lessee must not give consent under subsection (5), or the Minister under subsection (7), to a proposal to travel across or camp on pastoral land in a manner referred to in subsection (3) if to do so would be inconsistent with the terms (if any) of an ILUA in force in relation to the land relating to public access and activities on the land.

10—Insertion of sections 48A and 48B

After section 48 insert:

48A—Public register

(1) The Minister must maintain a public register in relation to this Division.

(2) The public register must contain—

(a) details of each pastoral lease the subject of an ILUA; and

(b) contact details of each lessee of pastoral land the subject of an ILUA; and

(c) contact details of each native title group who is a party to an ILUA; and

(d) information relating to the terms (if any) of an ILUA relating to the access of Aboriginal persons onto pastoral land the subject of an ILUA; and

(e) information relating to the terms (if any) of an ILUA relating to public access onto pastoral land the subject of an ILUA.

(3) The public register may be kept in the form of a computer record.

(4) The public register is to be available for inspection, without fee, during ordinary office hours at a public office, or public offices, determined by the Minister.

(5) The Minister must ensure that copies of material on the public register can be purchased for a reasonable fee at the public office, or public offices, at which the register is kept available for inspection.

(6) The Minister must ensure that the public register can be inspected at a website determined by the Minister.

48B—Trespassers on pastoral land the subject of an ILUA

(1) If—

(a) a person trespasses on pastoral land the subject of an ILUA; and

(b) the nature of the trespass is such as to interfere with the enjoyment of the land by the lessee or the native title group; and

(c) the trespasser is asked by an authorised person to leave the land,

the trespasser is, if he or she fails to leave the land forthwith or again trespasses on the land within 24 hours of being asked to leave, guilty of an offence.

Maximum penalty: $2 500 or imprisonment for 6 months.

(2) A person who trespasses on premises must, if asked to do so by an authorised person, give his or her name and address to the authorised person.

Maximum penalty: $1 250.

(3) An authorised person, on asking a trespasser to leave premises or to give a name and address, must, if the trespasser so requests, inform the trespasser of—

(a) the authorised person's name and address; and

(b) the capacity in which the person is an authorised person under this section.

(4) In this section—

authorised person means—

(a) the lessee of pastoral land the subject of the ILUA; or

(b) the native title group; or

(c) an employee of the lessee or other person acting on the authority of the lessee; or

(d) a person acting on the written authority of the native title group;

pastoral land includes a building or structure.

(5) In proceedings for an offence against this section, an allegation in the complaint that a person named in the complaint was on a specified date an authorised person in relation to specified pastoral land will be accepted, in the absence of proof to the contrary, as proof of the authorisation.