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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-01 Daily Xml
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ANANGU PITJANTJATJARA YANKUNYTJATJARA LAND RIGHTS (MINTABIE) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (20:07): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Introduction

This Bill amends the Anangu Pitjantjatjara Yankunytjatjara (APY) Land Rights Act 1981 (the APY Land Rights Act), some by-laws under the Act and the Opal Mining Act 1995. The amendments are necessary for the implementation of a new lease for the Mintabie opal mining township, which is located on land owned by Anangu Pitjantjatjara Yankunytjatjara (APY) pursuant to the APY Land Rights Act.

The changes have been based on consultation with APY and traditional owners as well as the Mintabie Miners Progress Association and relevant government agencies and will enable more effective management of the township.

Background

The township of Mintabie is located about 1100 kilometres north of Adelaide on the Mintabie Precious Stones Field. The Precious Stones Field has an area of approximately 100 square kilometres and the township is about 5 square kilometres in size.

Opal mining at Mintabie and the township were established before land was vested to APY in 1981. In recognition of this, the APY Land Rights Act included special provisions in relation to Mintabie.

Section 28 of the APY Land Rights Act leased the town area to the Crown through the Minister for Lands for 21 years. That statutory lease expired on 1 October 2002. Since that time the APY Executive Board has provided a series of interim lease extensions while a new lease has been negotiated.

Description of the Mintabie township

At its peak in about 1990 almost 1,000 people were estimated to be living at Mintabie. It currently has a population of 100—150 people.

The main commercial activities at Mintabie are a hotel, four shops and second hand motor vehicle sales. With the decline of opal mining at Mintabie, most of Mintabie's commercial trade is now with Anangu.

Under the current APY by-laws, the hotel is not permitted to sell alcohol to Anangu. The current by-laws permit Mintabie residents to bring unlimited quantities of alcohol into Mintabie for personal consumption.

There is an Area School at Mintabie, which has about 30 students. The Mintabie school was built in the 1990s to replace the Marla school.

Town municipal activities such as the maintenance of internal roads and the airstrip, provision of water and rubbish collection are self managed through the Mintabie Miners Progress Association (MMPA), which is a voluntary body of Mintabie residents. There is a Mintabie tele-centre that was set up with funding provided by the Australian Government.

Management of the Mintabie township

There have been deficiencies over many years in the management of Mintabie, which has resulted in a range of problems. This has occurred despite provisions in the APY Land Rights Act for a Mintabie Consultative Committee comprising the State, APY and the MMPA to deal with issues relating to the administration of the precious stones field and township.

For example, there has been little regulation of the location of dwellings and other structures at Mintabie. As a result, about thirty per cent of the houses at Mintabie have been built outside the original town lease area established under the APY Land Rights Act. The town waste dump was also established outside the town lease area without direct agreement from APY. Many buildings at Mintabie have been erected without relevant approvals under the Development Act or the earlier Planning Act. No process was established to identify Aboriginal heritage areas to ensure buildings and other developments were not located near culturally significant sites. Environmental protection issues have not been adequately dealt with. The collection of site licence fees from Mintabie residents and the regular indexation of fees have also been deficient. In addition, there has been a failure to enforce permit requirements for visiting Mintabie, with most visitors not obtaining a permit and being unaware of the requirement to do so.

This Bill and the proposed new lease arrangements seek to address these and other longstanding issues where appropriate.

Mintabie Township lease negotiations

While the Mintabie Precious Stones Field continues indefinitely unless changed by Government, a new town lease allowing people to live and operate businesses at Mintabie requires APY approval. Negotiations for a new town lease, led by Primary Industries and Resources SA (PIRSA), which administers the precious stones field, began several years before the lease expired in 2002.

At that time, the APY Executive Board nominated Yankunytjatjara Council, represented by the Pitjantjatjara Council, as the appropriate body to represent traditional owners in the lease negotiations. Through this process a new town lease was prepared, but it was not endorsed when put to a general meeting of APY in mid-2002.

One reason for its failure was concern about activities at Mintabie that were causing problems on the Lands. A second reason was the strong disagreement at the time between the Pitjantjatjara Council and the APY Executive Board.

Following this set back, PIRSA and the Department of State Aboriginal Affairs (now the Aboriginal Affairs and Reconciliation Division of the Department of the Premier and Cabinet) recommenced negotiations, with assistance from the Crown Solicitor's Office. Recent lease negotiations have been with the APY Executive Board rather than Yankunytjatjara Council, although local traditional owners continue to have input.

In the last three years there have been four Special General Meetings of APY to discuss the Mintabie township lease, plus meetings with the APY Executive Board members and officers and the MMPA.

The APY position is that it agrees to the Mintabie township remaining provided a number of legal and illegal activities contributing to social and economic problems on the Lands are dealt with.

Issues that APY want addressed

In addition to the issues described above, APY's chief concerns are:

alcohol and other drugs (mainly cannabis) entering the broader APY lands through Mintabie

the operation of a second hand motor vehicle dealer at Mintabie. There have been allegations that vehicles bought by Anangu soon break down, which is contributing to financial hardship because they are often purchased on credit

credit or 'book up' practices and the retention of Anangu bank key-cards by Mintabie shop keepers, which is seen contributing to financial hardship and is in conflict with the APY Mai Wiru stores policy.

Note—

Mai Wiru is a Pitjantjatjara/ Yankunytjatjara word that means 'good food'. The central aims of the Mai Wiru stores policy are to ensure stores on the APY lands sell healthy foods at affordable prices and comply with fair trading legislation.

sale of pornography to Anangu at Mintabie.

SAPOL and the Office of Consumer and Business Affairs (which has investigated trading practices at Mintabie), have confirmed many of these concerns.

At Special General Meetings of APY about Mintabie in 2007 and 2008, APY determined that the following conditions needed to be met before it would agree to a new township lease:

alcohol to only be consumed at the Mintabie hotel or at approved licensed functions;

Mintabie residents no longer permitted to bring alcohol into the town;

Mintabie residents to undergo police criminal history checks as part of licences for town sites similar to the practice for most others living or working on the Lands;

no commercial second hand motor vehicle sales to be allowed at Mintabie;

relevant aspects of the Mai Wiru stores policy to apply at Mintabie stores including sorting out problems with 'book up' using key cards, in consultation with APY and affected Mintabie store owners;

prompter procedures for removing people from Mintabie who are engaging in activities seen as detrimental to the welfare of Anangu.

APY and the MMPA also agreed that the Mintabie Consultative Committee should be established under the Mintabie Township Lease Agreement rather than the Act because this will provide a more flexible and administratively simpler operating structure.

Amendments to the APY Land Rights Act

The Bill replaces existing sections 25-28 of the APY Land Rights Act with new sections. The Minister responsible for the new Mintabie provisions will be the Minister for Mineral Resources Development, as for existing Mintabie provisions.

The Bill establishes procedures for the Minister to delegate powers in relation to the Mintabie precious stones field, ensures that the State and APY are not responsible for maintaining licensed sites in the Mintabie town area, makes provisions concerning the Walatina grazing leases, sets out new procedures for entering and remaining at Mintabie, creates new Ministerial powers in relation to issuing site licences, makes an offence of entering and remaining at Mintabie or operating a business at Mintabie without a licence and establishes procedures for reviewing licensing decisions. The Bill also includes powers for APY to delegate the management of entry permits for Mintabie to approved persons.

These provisions are described in more detail below.

Retail and residential tenancies legislation

The Bill provides that the Retail and Commercial Tenancies Act and the Residential Tenancies Act do not apply to residential, camp site and commercial licences at Mintabie. Licensees currently only pay a ground rent of $400 to $600 a year for residential sites and more for commercial sites. Licensees have in some cases built substantial structures but no-one expects MMPA, APY or the State to be responsible for maintaining these buildings in the way expected of a landlord. Clause 29E of the Bill articulates this by stating that the Crown, APY and MMPA are not responsible for the repair of premises at Mintabie.

Walatina grazing leases

Section 29B deals with grazing leases granted by APY to the Walatina Aboriginal Corporation. Mr Yami Lester and his family operate Walatina. The grazing leases currently include land proposed to be in the Mintabie township lease area. Section 29B provides that the leases will not apply to the land in the township lease area so long as the Mintabie town lease exists. The area affected is about five square kilometres. This short circuits the usual processes of partial surrender of the grazing leases and later re-registration of a new lease over the town lease area. Walatina has a total lease area of some 9,000 square kilometres and does not currently graze cattle near Mintabie. Mr Lester and his family support the provision.

Provisions for entering and remaining at Mintabie

Section 25 of the APY Land Rights Act sets out the current statutory requirements for entering and remaining at Mintabie. Experiences since 1981 have shown that this section needs to be amended to better manage access.

Section 29C of the Bill specifies who can enter and remain on the Mintabie precious stones field and section 29D establishes new licence procedures for occupying land in the Mintabie township lease area. These provisions establish an administrative process whereby the Minister has discretion over the granting of licences to persons wanting to live at Mintabie. The Minister may require applicants for a licence to provide a criminal history check and can include relevant conditions on licences.

Under the Bill's provisions, people wanting to visit or reside at Mintabie will require an APY permit unless they:

have a site licence to live at Mintabie;

are a person named on a site licence;

hold a Mintabie precious stones prospecting permit;

are a member of a specified class of person, including students (and their parents/guardians) attending the Mintabie school from outside the APY lands (eg Marla), persons who work at the Mintabie school, employees of the Royal Flying Doctor Service, health care workers, ministers of religion and other approved classes of persons.

Unlike the current arrangements, these new provisions will enable PIRSA and SAPOL to readily determine who is legally permitted to be at Mintabie.

To remove an ambiguity, Section 29C(8) of the Bill specifies access and egress to Mintabie must be directly from the Stuart Highway.

Mintabie Consultative Committee

Section 26 of the current APY Land Rights Act establishes the Mintabie Consultative Committee. The purpose of the Committee is to provide advice to the Minister for Mineral Resources Development about issues related to the administration of the Mintabie precious stones field. The Governor appoints committee members and membership comprises two Anangu, a SAPOL representative, a representative of the Minister for Mineral Resources Development and a representative of the MMPA. The statutory committee will be replaced by a similar committee be provided for in the Mintabie Township Lease Agreement.

Exclusion of persons from Mintabie

Section 27 currently contains provisions for prohibiting persons from entering or remaining at Mintabie. The process involves an application to the Magistrates Court for an order prohibiting a person from being in Mintabie. Section 27(2) sets out the grounds on which an order can be made, which includes certain criminal convictions. The Bill retains these provisions and adds drug offences under part 5 of the Controlled Substances Act as grounds for exclusion.

To further strengthen the exclusion powers, the Bill includes at section 29F new offences of residing at Mintabie without a licence and operating a business at Mintabie without a licence. These provisions will enable PIRSA and SAPOL to act more promptly to remove any person at Mintabie who is a threat to good order and good relations with Anangu.

Mintabie site licences

Section 29D of the Bill sets out the process by which the Minister issues licences to occupy land in the Mintabie township area. Fees for licensees are based on a Schedule in the Mintabie Township Lease Agreement.

Section 29G includes procedures for reviewing licence decisions at the request of affected licence holders or applicants.

Opal Mining Act

Schedule 1 part 1 of the Bill sets out changes to the Opal Mining Act. New section 10A of the Opal Mining Act requires persons holding a precious stones prospecting permit to obtain an additional authorisation to operate at Mintabie.

Similar Mintabie-specific provisions are included for opal mining tenements (new sections 18A, 18B and 19A). This is because a person holding an opal mining tenement at Mintabie does not need to have a precious stones prospecting permit.

Similar to other areas of the Opal Mining Act, various administrative decisions related to Mintabie precious stones prospecting permits and opal mining tenements at Mintabie will be subject to review by the Warden's Court.

APY alcohol by-laws

As part of the township lease negotiations, APY has proposed changes to the APY alcohol by-laws. Under the new provisions it will only be permissible to consume alcohol on the Mintabie precious stones field at licensed premises or at specially licensed events unless APY agrees to additional rights to possess alcohol at Mintabie pursuant to relevant provisions of the APY alcohol by-laws . Persons delivering alcohol to Mintabie will also be required to notify the Marla police at least 24 hours beforehand.

Mintabie Township Lease Agreement and lease

The Mintabie Township Lease Agreement mentioned in the Bill will set out many of the details about how management of Mintabie township will occur. The substantive content of both the formal lease and the Mintabie Township Lease Agreement have been negotiated. It is proposed that these documents will be signed after this Bill has been finalised.

Transitional provisions

Schedule 2 makes transitional provisions for town site licences, the relatives of persons holding precious stones prospecting permits and opal mining tenements at Mintabie. Existing precious stones prospecting permits and opal mining tenements will continue until their expiry date but are altered to include conditions set out in the Bill. This will avoid the administrative difficulty for PIRSA that would have occurred if all opal mining authorities had to be renewed at the commencement of this amending Act. New town site licences will be required prior to the commencement of this new legislation.

Conclusion

This Bill represents an important step in providing for the continuation of the opal mining township of Mintabie whilst also addressing a range of longstanding issues that have been of concern to APY.

The Bill demonstrates the government's commitment to negotiating agreements on Aboriginal lands that provide fair outcomes for all parties.

I would like to acknowledge the active involvement of the previous Brown and Olsen governments, which commenced the negotiations for a new Mintabie township lease and agreement. I also want to thank the Anangu Pitjantjatjara Yankunytjatjara, the Walatina Aboriginal Corporation and the Mintabie Miners Progress Association who have all participated in and assisted negotiations.

After the passage of this Bill the new Mintabie township lease and related Agreement can be operating within a few months.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981

4—Amendment of section 4—Interpretation

This clause deletes the redundant definition of 'Mintabie resident' and inserts definitions of terms used in the Act as amended by the measure.

5—Substitution of Part 3 Division 4

This clause substitutes a new Division 4 into Part 3 of the Act as follows:

Division 4—Mintabie precious stones field

25—Interpretation

This clause defines terms used in the proposed new Division.

In particular, it provides that the Minister, for the purposes of the Division, is the Minister to whom the administration of the Opal Mining Act 1995 is committed, rather than the Minister to whom the principal Act is committed.

26—Expiry of Division

This clause provides that the proposed Division will expire should the Mintabie precious stones field cease to be a precious stones field for the purposes of the Opal Mining Act 1995.

27—Interaction of this Division with other Acts

In addition to preserving the effect of current section 29 of the Act, this clause provides that the proposed Division does not derogate from the provisions of the Mining Act 1971 or the Opal Mining Act 1995. It also provides that the Retail and Commercial Leases Act 1995 and the Residential Tenancies Act 1995 do not apply in relation to premises or land in the Mintabie township lease area.

28—Delegation

This clause provides a power of delegation to the Minister in relation to the powers and functions of the Minister under the proposed Division.

29—Delegation of power to permit entry to Mintabie precious stones field

This clause provides that, despite sections 9F and 19(3) of the Act (which operate to prevent the Executive Board from delegating the power to grant a permit under the Act), the Executive Board may delegate the power to grant permission under the Act in relation to entry of persons to the Mintabie precious stones field.

29A—Inspection of Mintabie Township Lease Agreement

This clause ensures that a copy of the Mintabie Township Lease Agreement is available for inspection, without charge, at the specified times and places.

29B—Walatina leases not to apply to Mintabie township

This clause provides that the Walatina leases, being leases granted over the lands to the Walatina Aboriginal Corporation, do not apply to the Mintabie township lease area, although, should the proposed Division expire under proposed section 26, the relevant area will once again be subject to those leases.

29C—Entry to Mintabie precious stones field etc.

This clause provides that a person must not enter or remain on the Mintabie precious stones field unless he or she is a person to whom proposed section 29C(2) applies, or he or she is otherwise entitled under the Act to be on the field (such as Anangu). The people referred in that proposed subsection are, in general terms, people who have rights in relation to, or responsibilities on, the Mintabie precious stones field, rather than those who are simply visitors to the lands. The clause sets out procedural matters related to the approval of the persons referred to in section 29C(2)(b), (h) or (i).

29D—Minister may issue etc licence to occupy land in Mintabie township lease area

This clause enables the Minister to issue (as well as vary, revoke and renew) licenses to entitle a person, and certain persons specified by that person, to occupy specified land within the Mintabie township lease area, should the area be leased by Anangu Pitjantjatjara Yankunytjatjara to the Crown in accordance with the Act. The clause sets out procedural matters in relation to the issue of a licence, including the persons to whom, and the circumstances in which, such a licence can or cannot be issued.

29E—Crown etc not required to keep premises in good repair

This clause clarifies that the Crown, Anangu Pitjantjatjara Yankunytjatjara or the Mintabie Miners Progress Association are not required to keep premises in the Mintabie township lease area in good repair.

29F—Offence to reside etc on Mintabie township lease area without licence

This clause provides that it is an offence for a person to reside in the Mintabie township lease area except in accordance with a licence under proposed section 29D. The offence carries a maximum penalty of a fine of $2 000, plus an additional maximum of $500 for each day during which the convicted person resided in the Mintabie township lease area in contravention of this subsection. A similar offence is provided in relation to the conduct of a business in the area other than in accordance with a licence.

29G—Review of certain decisions of Minister

This clause provides a right of review for a person aggrieved by a decision of the Minister under proposed section 29C or 29D, and sets out procedural matters in relation to such a review.

29H—Exclusion of certain persons from the Mintabie precious stones field

This clause is essentially a relocation of current section 27 of the Act, providing a court with the power to exclude a person from the Mintabie precious stones field, although it has been slightly modified to enable offences against Part 5 of the Controlled Substances Act 1984 (being serious drug offences such as trafficking) to ground such an order.

Schedule 1—Related amendments and transitional provisions

Part 1—Amendment of the Opal Mining Act 1995

1—Insertion of section 10A

This clause inserts new section 10A into the principal Act, providing that a precious stones prospecting permit does not authorise a person to prospect for precious stones on the Mintabie precious stones field unless the permit has been endorsed by a mining registrar as authorising such prospecting, and setting out procedural and administrative matters in relation to such endorsements.

2—Insertion of sections 18A and 18B

This clause inserts new sections 18A and 18B into the principal Act as follows:

18A—Special conditions for tenements in relation to Mintabie precious stones field

This proposed section provides for the imposition of conditions on precious stones tenements located on the Mintabie precious stones field, in particular a condition that the holder of the tenement must not reside on the Mintabie precious stones field other than in the Mintabie township lease area in accordance with a licence issued under this measure, or as otherwise allowed under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981.

18B—Director may cancel tenement on the Mintabie precious stones field

This proposed section makes special provision for the cancellation of the registration of a tenement on the Mintabie precious stones field.

Proposed subsection (1) requires the Director to cancel the registration of a person's tenement or tenements on the Mintabie precious stones field in the circumstances set out in the subsection.

Proposed subsection (2) provides that the Director may cancel the registration of a person's tenement or tenements on the Mintabie precious stones field in the circumstances set out in the subsection.

The proposed section also provides a right of review in relation to a cancellation arising because the holder of a tenement acted detrimentally to the welfare of Anangu or to the welfare of others on the precious stones field.

3—Insertion of section 19A

This clause inserts new section 19A into the principal Act, providing that the Director may require an applicant for registration of a precious stones tenement on the Mintabie precious stones field to provide with the application any other information reasonably required by the Director (including, in the case of an applicant who is of or above 18 years of age, information in relation to the criminal history of the applicant).

Proposed section 19A(2) provides that the Mining Registrar must refuse to register, or refuse to renew the registration of, a precious stones tenement on the Mintabie precious stones field in the circumstances set out in the subsection.

Proposed section 19A(3) provides that the Mining Registrar may refuse to register, or refuse to renew the registration of, a precious stones tenement on the Mintabie precious stones field in the circumstances set out in the subsection.

The proposed section also provides a right of review in relation to a refusal to register arising because the holder of a tenement acted detrimentally to the welfare of Anangu or to the welfare of others on the precious stones field.

Part 2—Variation of Pitjantjatjara Land Rights (Control of Alcoholic Liquor) By-Laws 1987

4—Variation of by-laws

5—Variation of by-law 1

6—Substitution of by-laws 6 and 7

7—Variation of by-laws 8 and 9

8—Variation of by-law 11

These clauses vary the by-laws made under the principal Act to make those by-laws consistent with the changes made by this measure, and to change obsolete references.

Part 3—Variation of Pitjantjatjara Land Rights (Control of Gambling) By-Laws 1987

9—Variation of by-laws

10—Variation of by-law 1

These clauses vary the by-laws made under the principal Act to change obsolete references.

Part 4—Variation of Pitjantjatjara Land Rights (Control of Petrol) By-Laws 1987

11—Variation of by-laws

12—Variation of by-law 1

These clauses vary the by-laws made under the principal Act to change obsolete references.

Part 5—Transitional provisions

13—Transitional provision—Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981

This transitional clause provides that the spouses etc of holders of current precious stones prospecting permits who (until the repeal of section 25 of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981) are entitled to enter and remain on the precious stones field because of their relationship to the person with such a permit, will remain so entitled until the expiry of the current precious stones prospecting permit.

The clause also enables (despite section 29D(6)) the Minister to issue a licence under proposed section 29D(1) to a person who, in the 6 months preceding the commencement of that section, was entitled to occupy land within the Mintabie township lease area.

14—Transitional provision—Opal Mining Act 1995

This clause provides that a precious stones prospecting permit in force immediately before the commencement of clause 1 of this Schedule will be taken to be endorsed by a mining registrar as authorising a person to prospect for precious stones on the Mintabie precious stones field. This preserves the current rights of prospecting enjoyed by the holder of a precious stones prospecting permit until the expiry of that permit in accordance with the principal Act, with any future or renewed permits requiring an application for endorsement as contemplated by proposed section 10A of the Opal Mining Act 1995.

Debate adjourned on motion of Hon. D.W. Ridgway.

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