South Australian Current Acts

MARALINGA TJARUTJA LAND RIGHTS ACT 1984 - SECT 21

21—Mining operations on the lands

        (1)         Notwithstanding the provisions of any other Act, a person who, without permission under this section—

            (a)         carries out mining operations upon the lands; or

            (b)         enters the lands for the purpose of carrying out mining operations,

shall be guilty of an offence and liable to a penalty not exceeding the maximum prescribed by subsection (2).

        (2)         The maximum penalty for an offence against subsection (1) is a fine of $10 000 plus $1 000 for each day during which the convicted person—

            (a)         carried out unlawful mining operations upon the lands; or

            (b)         remained upon the lands after the unlawful entry.

        (3)         An application for permission to carry out mining operations upon the lands—

            (a)         may be made only by a person who has applied for a mining tenement in respect of the lands or a part of the lands and has been notified by the Minister of Mines and Energy that he approves the making of an application under this section; and

            (b)         must be in writing and lodged with the Council; and

            (c)         must contain, or be accompanied by, all information submitted by the applicant to the Minister of Mines and Energy in support of his application for a mining tenement.

        (4)         The applicant shall, at the request of Maralinga Tjarutja, furnish in writing such further information as it may reasonably require to determine the application.

        (5)         The applicant shall, as soon as practicable after making his application, or furnishing information under subsection (4), send to the Minister of Mines and Energy a copy of the application or of the document by which the information was furnished.

        (6)         Upon an application under this section, Maralinga Tjarutja may—

            (a)         grant its permission unconditionally; or

            (b)         grant its permission subject to such conditions (which must be consistent with the provisions of this Act) as it thinks fit; or

            (c)         refuse its permission.

        (7)         Maralinga Tjarutja shall, upon deciding an application under this section, notify the applicant, in writing, of its decision and the applicant shall, within seven days after receiving that notification, furnish the Minister of Mines and Energy with a copy of the notification.

        (8)         The reasonable costs and expenses incurred by Maralinga Tjarutja in dealing with an application under this section may be recovered from the applicant as a debt.

        (9)         Any payment made in satisfaction of a liability arising under subsection (8) shall, if the application is subsequently determined in favour of the applicant but on condition that he pay compensation to Maralinga Tjarutja, be regarded as a payment made on account of that compensation.

        (10)         Where—

            (a)         Maralinga Tjarutja refuses its permission under this section or grants its permission but subject to conditions that are unacceptable to the applicant; or

            (b)         the applicant has not, at the expiration of one hundred and twenty days from the date of the application, received notice of a decision by Maralinga Tjarutja, upon the application,

the applicant may request the Minister of Mines and Energy to refer the application to an arbitrator.

        (11)         Upon the receipt of a request under subsection (10), the Minister of Mines and Energy shall confer with the Minister of Aboriginal Affairs, Maralinga Tjarutja and the applicant with a view to resolving the matter by conciliation.

        (12)         If steps taken under subsection (11) have failed to resolve the matter within a reasonable time after receipt of the request, the Minister of Mines and Energy shall refer the application to an arbitrator.

        (13)         The arbitrator shall—

            (a)         in relation to an application for permission to carry out exploratory operations—be a Judge of the Supreme Court of South Australia or a legal practitioner of not less than ten years standing appointed by the Minister of Mines and Energy to be arbitrator; or

            (b)         in any other case—be a Judge of the High Court, the Federal Court of Australia or the Supreme Court of a State or Territory of Australia or a legal practitioner of not less than ten years standing appointed by the Minister of Mines and Energy to be arbitrator,

the Minister having first afforded Maralinga Tjarutja and the applicant a reasonable opportunity to make representations as to that appointment.

        (14)         The arbitrator—

            (a)         shall have the powers of a commission of inquiry under the Royal Commissions Act ; and

            (b)         may refer a question of law for the opinion of the Court of Appeal.

        (16)         After hearing such evidence and submissions as—

            (a)         Maralinga Tjarutja; and

            (b)         the applicant; and

            (c)         the Minister of Mines and Energy; and

            (d)         the Minister of Aboriginal Affairs,

may desire to make to him, and such other evidence and submissions as he thinks fit to receive, the arbitrator may—

            (e)         affirm, vary or reverse the decision of Maralinga Tjarutja; or

            (f)         where no decision has been made by Maralinga Tjarutja upon the application—determine the application as the arbitrator thinks fit.

        (17)         The arbitrator may, if he thinks fit, award against the applicant and in favour of Maralinga Tjarutja an amount determined by the arbitrator as representing the reasonable costs and expenses incurred by Maralinga Tjarutja in relation to the arbitration.

        (18)         An amount awarded under subsection (17) may be recovered by Maralinga Tjarutja as a debt.

        (19)         In arriving at his determination, the arbitrator shall have regard to—

            (a)         the effect of the grant of the mining tenement upon—

                  (i)         the preservation and protection of ways-of-life, culture and tradition of the traditional owners;

                  (ii)         the interests, proposals, opinions and wishes of the traditional owners in relation to the management, use and control of the lands;

                  (iii)         the growth and development of social, cultural and economic structures of the traditional owners;

                  (iv)         freedom of access by traditional owners to the lands and their freedom to carry out on the lands rites, ceremonies and other activities in accordance with their traditions; and

            (b)         the suitability of the applicant to carry out the proposed mining operations and his capacity, in carrying out those operations, to minimise disturbance to the traditional owners and the lands; and

            (c)         the preservation of the natural environment; and

            (d)         the economic and other significance of the operations to the State and Australia.

        (20)         The arbitrator shall hear and determine the arbitration as expeditiously as possible.

        (21)         A determination under this section is binding upon Maralinga Tjarutja, the applicant and the Crown.

        (22)         The Arbitration Act 1891 does not apply to an arbitration under this section.

        (23)         Mining operations in pursuance of a mining tenement that was in force in relation to a part of the lands immediately before it became subject to the application of this Act shall be deemed to have been unconditionally permitted under this section.